Disciplinary Counsel v. Dockry
133 Ohio St. 3d 527
| Ohio | 2012Background
- Dockry, an Ohio attorney admitted in 1982, faced a complaint filed April 11, 2011 for misconduct related to his client trust account.
- Relator alleged Dockry deposited and maintained personal funds in the client trust account, used the account to pay personal and business expenses, loaned client funds for personal use, and failed to maintain ledgers and proper reconciliations.
- Stipulations admitted violations of Prof.Cond.R. 1.15(a), 1.15(a)(2), and 1.15(a)(5); Dockry disputed allegations under Prof.Cond.R. 8.4(c) and 8.4(h).
- The panel found all charged misconduct and recommended a one-year suspension, six months stayed, with one year of monitored probation and no further misconduct.
- The board adopted the panel’s findings and recommended sanction; Dockry urged a six-month stayed suspension instead.
- The Supreme Court sustained the misconduct findings, declined to adopt a six-month stay, and imposed a one-year suspension stayed on the conditions of one year monitored probation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Dockry violate trust-account rules 1.15(a), (a)(2), (a)(5)? | Dockry violated by commingling and lacking records/reconciliations. | Mitigation suggested no additional violations beyond those admitted. | Yes, violations established. |
| Did Dockry's conduct involve dishonesty or misrepresentation (8.4(c)/(8.4(h))? | Conduct reflected dishonesty due to unauthorized borrowing. | Disputed claims of dishonesty; no misrepresentations to clients. | Conduct included dishonesty for borrowing; but no client misrepresentations found. |
| What sanction is appropriate for Dockry’s misconduct? | One-year suspension with six months stayed and probation recommended. | A six-month fully stayed suspension with probation sufficient. | One-year suspension stayed, with one year monitored probation, is upheld. |
| Should the stay be conditioned on monitored probation given the dishonesty aspect? | Stay conditioned to ensure public protection and deter future misconduct. | Conditioning is excessive; probation not necessary if stayed suspension is imposed. | Stay conditioned with monitored probation required. |
| Do mitigating and aggravating factors justify the sanction? | Significant aggravating factor of dishonest motive; mitigating factors present. | Mitigating factors outweigh the sole aggravating factor. | Mitigating factors outweigh; sanction remains a stayed one-year suspension. |
Key Cases Cited
- Disciplinary Counsel v. Wise, 108 Ohio St.3d 381 (Ohio 2006) (indefinite suspension for extensive misuse of client funds and overdrafts)
- Disciplinary Counsel v. Vivyan, 125 Ohio St.3d 12 (Ohio 2010) (six-month stayed suspension for unearned funds withdrawal from trust account)
- Disciplinary Counsel v. Hauck, 129 Ohio St.3d 209 (Ohio 2011) (six-month stayed suspension for commingling and deception via trust account)
- Disciplinary Counsel v. Johnston, 121 Ohio St.3d 403 (Ohio 2009) (one-year stayed suspension for nearly two-year commingling/misuse with client funds)
- Disciplinary Counsel v. Fumich, 116 Ohio St.3d 257 (Ohio 2007) (one-year fully stayed suspension for deceitful trust-account activity and failure to respond)
- Disciplinary Counsel v. Riek, 125 Ohio St.3d 46 (Ohio 2010) (six-month stayed suspension for commingling and deception with client funds)
- Columbus Bar Assn. v. Peden, 118 Ohio St.3d 244 (Ohio 2008) (six-month stayed suspension for trust-account overrules and mismanagement)
- Disciplinary Counsel v. Newcomer, 119 Ohio St.3d 351 (Ohio 2008) (six-month stayed suspension for trust-account mismanagement)
- Disciplinary Counsel v. Fletcher, 122 Ohio St.3d 390 (Ohio 2009) (six-month stayed suspension for personal and business expenses charged to trust account)
- Disciplinary Counsel v. Nance, 119 Ohio St.3d 55 (Ohio 2008) (six-month stayed suspension for adverse reflection on fitness via trust-account use)