2018 Ohio 4730
Ohio2018Background
- Bradley D. Keating, Ohio lawyer admitted 2003, was the sole owner of The Keating Firm, Ltd.; disciplinary complaint certified by Columbus Bar Association alleging multiple professional-conduct violations related to client-trust accounting, failure to notify clients of lack of professional-liability insurance, and a defective contingent-fee signature.
- Three personal-injury matters (Cases One–Three): firm agreed to pay chiropractor out of settlements; checks to the provider were misissued or never negotiated; Keating later paid provider in full after grievance.
- Firm maintained multiple client trust accounts after suspected theft/incompetence by prior accountant; one older trust account (the “second account”) retained $74,517.14 in unidentified funds as of 2017.
- Keating retained a forensic CPA who concluded the unidentified funds were most likely firm profits; panel found Keating carried his burden to account for the funds but still found recordkeeping rule violations.
- Parties stipulated and the board found violations of Prof.Cond.R. 1.15 (recordkeeping and accounting), 1.5(c)(1) (unsigned contingent-fee by lawyer), and 1.4(c) and 1.4(c)(1) (failure to notify clients of lack of malpractice insurance and retain acknowledgments).
- Board recommended a six-month suspension fully stayed on conditions (two-year monitored probation, hire accounting expertise, 3 CLE hours/year on trust-account management, no further misconduct); relator sought additionally that the unidentified funds be turned over to state unclaimed funds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Keating violated client-trust-account and related rules by failing to maintain proper records and reconcile accounts | Relator: Keating’s records leave $74,517.14 of unidentified funds and show mispayments to a provider; violated Prof.Cond.R.1.15 and related rules | Keating: retained forensic CPA showing funds likely firm profits; produced records; no client/third-party has claimed funds | Court adopted board: found multiple recordkeeping violations (Prof.Cond.R.1.15 variants) but dismissed allegation of failing to deliver funds because relator failed to prove client entitlement |
| Whether Keating violated 1.5(c)(1) by not signing contingent-fee agreement | Relator: unsigned lawyer signature violates the rule | Keating: stipulated facts but contested some violations; no substantive defense to lack of lawyer signature | Court adopted board: violation of Prof.Cond.R.1.5(c)(1) sustained |
| Whether Keating violated 1.4(c) and 1.4(c)(1) by not informing clients of lapse in malpractice insurance and retaining acknowledgments | Relator: Keating failed to notify existing and new clients and failed to keep signed acknowledgments | Keating: did not dispute notice violation facts but contested broader remedy requests | Court adopted board: violations of Prof.Cond.R.1.4(c) and 1.4(c)(1) sustained |
| Proper sanction and whether unidentified funds must be turned over to state unclaimed funds | Relator: impose additional probation condition requiring remittance of $74,517.14 to Ohio Division of Unclaimed Funds and require statutory procedures for Keating to recoup fees | Keating: funds are firm profits, not "unclaimed" or held by a "holder" under R.C. ch.169; relator failed to meet burden to prove client entitlement | Court: overruled relator’s objection; adopted board’s recommended stayed six-month suspension with conditions and declined to resolve distribution of unidentified funds in this disciplinary proceeding |
Key Cases Cited
- Allen Cty. Bar Assn. v. Schramski, 124 Ohio St.3d 465 (board referenced for more severe misconduct and sanction comparison)
- Cleveland Metro. Bar Assn. v. Walker, 142 Ohio St.3d 452 (board referenced for comparison of trust-account and client-notice violations)
- Disciplinary Counsel v. Fletcher, 122 Ohio St.3d 390 (court discussed as precedent imposing conditionally stayed six-month suspension for trust-account violations)
- Columbus Bar Assn. v. Peden, 118 Ohio St.3d 244 (same; precedent for stayed six-month suspension)
- Disciplinary Counsel v. Bricker, 137 Ohio St.3d 35 (public reprimand for trust-account violations cited for sanction context)
- Disciplinary Counsel v. Stafford, 131 Ohio St.3d 385 (standard that relator bears burden to prove misconduct by clear and convincing evidence)