Hello everyone and welcome to this Ethics Alert blog which will discuss the recent Supreme Court of Ohio opinion imposing a stayed one (1) year suspension upon an attorney who had overdrawn his client trust account and used the account for personal and business expenses and failed to respond to the initial Bar complaint. The case is Disciplinary Counsel v. Eynon, Slip Opinion No. 2013-Ohio-953 (March 19, 2013). The Opinion is at: http://www.sconet.state.oh.us/ROD/docs/pdf/0/2013/2013-Ohio-953.pdf.
According to the opinion, a two-count complaint filed was filed against the lawyer on April 11, 2011, charging him with improper use of his client trust account and failure to cooperate in the disciplinary investigation. Although the complaint was served by certified mail, the lawyer did not file an Answer and the Bar moved for default. A board commissioner found, by clear and convincing evidence, that the lawyer committed the misconduct and recommended that he be suspended from the practice of law for two years, with 12 months stayed.
The disciplinary board adopted the commissioner’s findings of fact, conclusions of law, and recommended sanction. On August 30, 2011, the Ohio Supreme Court issued an order to show cause why the court should not confirm the board’s recommendation and enter an order of discipline. After receiving responses, the Court remanded the matter back to the disciplinary board to consider mitigation. After rehearing, the board recommended a one year stayed suspension with conditions, including continuing psychological treatment.
As mitigation, the lawyer stated that for most of his legal career (he was admitted to practice in Ohio in 1969), he “worked for a large law firm and had not been responsible for conducting the firm’s banking, and he did not receive training regarding proper client-trust-account management until 2012. (The lawyer) now understands that his handling of his client trust account was inappropriate, and he sincerely apologized for his misconduct.”
The lawyer also stated that he failed to respond initially to the investigation because he “froze” and that the funds were from his wife and were not client funds. The lawyer also presented mitigation related to “major depression occasioned by a series of personal tragedies” as well as testimony, letters, and an affidavit from “a number of people who attested to his integrity and good character.” A psychological evaluation stated that the lawyer suffered from major depression caused by a series of personal tragedies, including the substance abuse and addiction of one of his children, the untimely death of a grandchild, and the fallout of an unsuccessful investment, which “psychologically immobilized him and grossly impaired his judgment at the time the charged misconduct occurred, and further prevented him from responding to the complaint.”
With regard to discipline, the opinion stated: “(w)e find that the mitigating factors present in this case, including (the lawyer’s) exemplary record apart from the charged misconduct, his excellent reputation, and his diagnosed mental impairment, which impaired his ability to cooperate in the underlying disciplinary investigation, render this case most comparable to (a previously cited case). Therefore, we agree that the appropriate sanction for (the lawyer’s) misconduct is a one-year fully stayed suspension, as recommended by the board.” The lawyer was also required to cooperate with his treatment program through the Ohio Lawyers Assistance Program (“OLAP”)
Bottom line: According to the opinion, this lawyer used his trust account for personal and business purposes and failed to cooperate (or even respond) to the charges until the matter was remanded by the court to consider mitigation. The presumed discipline in Florida for this misconduct is disbarment and disbarment is also an automatic discipline in certain other states. I have never seen or heard of a lawyer defending such charges by claiming that “he (or she) worked for a large law firm and had not been responsible for conducting the firm’s banking, and he (or she) did not receive training regarding proper client-trust-account management”; however, this defense appeared to have been effective in this case (along with the significant psychological and other mitigation).
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
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