Hello everyone and welcome to this Ethics Alert blog which will discuss recent Supreme Court of Ohio opinion which imposed a stayed 2 year suspension on a lawyer who took almost $70,000.00 from his trust account to “lend” to his wife to start a private investigator business. The case is Disciplinary Counsel v. Steve J. Edwards, Slip Opinion No. 2012-Ohio-5643 (12/5/12). The opinion is at http://www.supremecourt.ohio.gov/ROD/docs/pdf/0/2012/2012-Ohio-5643.pdf.
According to the opinion, the lawyer, Steve J. Edwards, was admitted to practice of law in Ohio in 1979. He was a solo with a practice consisting primarily of environmental groundwater litigation and personal injury work. When his wife left him in 2005, he became obsessed with getting her back. Between May 28, 2009 and October 15, 2010, the lawyer wrote ten checks from his client trust account to his wife totaling $69,500, which were apparently used to fund her private investigator business. The final check caused his client trust account to be overdrawn by $832.34. In response to the Ohio disciplinary counsel’s letter of inquiry regarding the overdraft, the lawyer admitted that he had overdrawn his trust account and reported his misappropriation of client funds.
After the disciplinary complaint was filed, the parties stipulated and the board panel found that the lawyer had failed to hold client funds in an interest bearing client trust account separate from his own property in violation of Ohio Bar Rule 1.15(a), and engaged in conduct adversely reflecting on his fitness to practice law in violation of Ohio Bar Rule 8.4(h). The board panel adopted the stipulated findings of fact and misconduct but also found that the lawyer had engaged in dishonesty, fraud, deceit, or misrepresentation in violation of Ohio Bar Rule 8.4(c) as charged in the complaint when he removed the client funds.
The board panel rejected disciplinary counsel’s proposed sanction of a one-year suspension, with six months stayed on conditions and, citing the abundance of mitigating evidence in this case and distinguishing the two cases cited by disciplinary counsel on the grounds that they involved additional aggravating factors such as the lawyer’s lack of remorse or the presence of actual harm to clients and recommended that the lawyer be suspended for one year, with the entire suspension stayed with the conditions that he remain in compliance with his Ohio Lawyers Assistance Program (OLAP) contract, continue to participate in counseling with a mental-health professional, and commit no further misconduct.
The opinion adopted the board panel’s findings of fact and misconduct and found that the lawyer’s unauthorized removal of funds from his client trust account and use of those funds for his own purposes necessarily involved dishonesty regardless of whether he made any false representations regarding his conduct. The court further suspended the lawyer from the practice of law for two years; however, it stayed the suspension for the entire 2 years with the conditions that he extend his existing OLAP contract for an additional two years from the date of the opinion, continue to participate in individual counseling with a mental-health professional, comply with all recommendations of OLAP and his treating mental health professional, and commit no further misconduct. If the lawyer fails to comply with the conditions, the stay will be lifted, and he will serve the entire two-year suspension.
Bottom line: In Florida, disbarment is presumed when a lawyer misappropriates funds from his or her trust account (and this is apparently true in Ohio as well). On rare occasions, a Florida lawyer may show sufficient mitigation to receive a 3 year suspension. In this case, the lawyer received a stayed 2 year suspension (which is also apparently called “time off” in Ohio).
Be careful out there!
Disclaimer: this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.
Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
2454 McMullen Booth Road, Suite 431
Clearwater, Florida 33759
Office (727) 799-1688
Fax (727) 799-1670