Disciplinary Counsel v. Barbera
149 Ohio St. 3d 505
Ohio2017Background
- Richard Barbera, an Ohio attorney admitted in 1994, was investigated after two bank notices of overdrafts in his client trust account (2011 and 2014).
- Barbera deposited all money received into the trust account (including earned fees), failed to keep required trust-account records, and did not perform regular reconciliations; he attributed some failures to misunderstanding the account purpose and to computer problems.
- Relator (disciplinary counsel) repeatedly requested records and information (letters, subpoenas, deposition); Barbera repeatedly failed to produce the requested documentation and gave incomplete responses.
- Board of Professional Conduct found violations of Prof.Cond.R. 1.15 (trust-account handling and recordkeeping) and Prof.Cond.R. 8.1(b)/Gov.Bar R. V(4)(G) (failure to cooperate).
- Aggravating factors: pattern of misconduct, multiple offenses, and failure to cooperate. Mitigating factors: no prior discipline, no dishonest motive, acknowledgement of wrongdoing, good character evidence, OLAP contract, and diagnosed depression/anxiety (but limited evidence of sustained successful treatment).
- The board recommended a one-year suspension stayed in its entirety on conditions; the Supreme Court accepted the findings and adopted the stayed one-year suspension with specific conditions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Barbera violated trust-account rules (Prof.Cond.R. 1.15) | Barbera commingled earned fees with client funds, failed to maintain required records and monthly reconciliations | Barbera argued misunderstanding of trust-account purpose and cited computer problems and poor bookkeeping | Court: Held Barbera violated Prof.Cond.R. 1.15 (commingling and recordkeeping failures) |
| Whether Barbera failed to cooperate in disciplinary investigation (Prof.Cond.R. 8.1(b) / Gov.Bar R.) | Relator: Barbera ignored letters, promises, subpoenas and did not produce records despite deposition appearance | Barbera contended he would cooperate, blamed computer issues and attempted to engage relator informally | Court: Held Barbera violated cooperation rules for repeatedly failing to provide requested records and responses |
| Whether Barbera’s mental-health condition mitigates sanction | Relator acknowledged OLAP contract and treatment efforts but contested sufficiency of sustained treatment | Barbera relied on diagnoses, OLAP contract, and recent treatment to mitigate sanction | Court: Declined to credit mental-health mitigation fully because treatment history lacked sustained successful period; some mitigating weight given for lack of dishonest motive and other factors |
| Appropriate sanction for misconduct | Relator sought sanction consistent with similar cases given commingling, record failures, and noncooperation | Barbera sought leniency citing no client loss, lack of dishonest motive, OLAP contract, and remediation efforts | Court: Imposed one-year suspension, fully stayed on conditions (OLAP compliance, continued therapy and recommendations, CLE on trust-account accounting, compliance with Prof.Cond.R. 1.15, monitored probation, no further misconduct); stay will be lifted on noncompliance |
Key Cases Cited
- Disciplinary Counsel v. Daniell, 140 Ohio St.3d 67, 14 N.E.3d 1040 (2014) (stayed one-year suspension for trust-account misuse and failure to cooperate)
- Disciplinary Counsel v. Eynon, 135 Ohio St.3d 274, 985 N.E.2d 1285 (2013) (stayed one-year suspension for commingling/record failures plus noncooperation)
- Disciplinary Counsel v. Simon, 128 Ohio St.3d 359, 944 N.E.2d 660 (2011) (stayed one-year suspension in similar trust-account/noncooperation context)