Disciplinary Counsel v. Gorby
142 Ohio St. 3d 35
| Ohio | 2015Background
- Jennifer Ann Gorby, admitted 2001, represented her sister and brother‑in‑law (the Adamses) in a Mahoning County foreclosure matter in 2011 for no fee and without a written fee agreement.
- Gorby did not maintain a client trust account (she limited practice to court‑appointed work) and deposited $6,400 of the Adamses’ funds into her business checking account starting June 2011.
- Gorby used entrusted funds for personal and business expenses; the account balance fell well below the amount she was holding for the Adamses until late 2012 when she replenished with personal funds and later disbursed funds to the Adamses and to a bankruptcy trustee.
- Relator charged Gorby with violations of Prof.Cond.R. 1.4(c) (failure to inform client of no malpractice insurance), 1.15(a) (failure to hold client funds in a trust account), and 8.4(c) (dishonesty); Gorby admitted the facts but withdrew the stipulation as to 8.4(c).
- The Board found violations of Rules 1.4(c), 1.15(a), and 8.4(c) and recommended a one‑year suspension, all stayed, with one year of monitored probation focused on trust‑account and office management.
- The Supreme Court adopted the Board’s findings and imposed a one‑year suspension, fully stayed on conditions; costs taxed to Gorby.
Issues
| Issue | Relator's Argument | Gorby's Argument | Held |
|---|---|---|---|
| Whether Gorby violated Prof.Cond.R.1.4(c) by failing to inform clients she lacked malpractice insurance | Gorby failed to notify clients of lack of professional liability insurance | Gorby did not dispute the fact and effectively conceded this omission | Court found a violation of Prof.Cond.R.1.4(c) |
| Whether Gorby violated Prof.Cond.R.1.15(a) by commingling/misappropriating client funds | Misuse of entrusted funds in operating account and withdrawals for personal expenses constitute misappropriation and breach of trust | Gorby attributed conduct to a dysfunctional family relationship, acknowledged misuse, asserted it would not reoccur | Court found a violation of Prof.Cond.R.1.15(a) (misappropriation/commingling) |
| Whether Gorby’s conduct violated Prof.Cond.R.8.4(c) (dishonesty) | Relator alleged dishonesty and deceit in misstatements and conduct | Gorby withdrew stipulation as to 8.4(c); admitted taking funds but disputed labeling it "theft," expressed remorse | Court adopted Board’s finding that 8.4(c) was violated |
| Appropriate sanction given misappropriation, aggravating/mitigating factors | Relator sought a substantial (actual) suspension—at least six months or one year—citing precedent favoring disbarment or significant suspensions for misappropriation | Gorby emphasized lack of prior discipline, restitution, cooperation, family‑driven misconduct, absence of client harm, and low risk of recurrence | Court imposed one‑year suspension, all stayed, with one year monitored probation focusing on trust‑account and office management; relator’s objections overruled |
Key Cases Cited
- Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio St.3d 424 (Ohio 2002) (factors for sanctioning attorney misconduct)
- Disciplinary Counsel v. Hoppel, 129 Ohio St.3d 53 (Ohio 2011) (disciplinary sanctions aim to protect the public, not merely punish)
- Disciplinary Counsel v. Burchinal, 133 Ohio St.3d 38 (Ohio 2012) (misappropriation across multiple matters and concealment support heavier suspension)
- Cleveland Bar Assn. v. Dixon, 95 Ohio St.3d 490 (Ohio 2002) (presumptive sanction for misappropriation is disbarment)
- Disciplinary Counsel v. Firth, 93 Ohio St.3d 173 (Ohio 2001) (Supreme Court not bound by board findings but defers to credibility determinations)
- Cincinnati Bar Assn. v. Statzer, 101 Ohio St.3d 14 (Ohio 2003) (deference to hearing panel credibility absent heavy contrary record)
- Stark Cty. Bar Assn. v. Ake, 111 Ohio St.3d 266 (Ohio 2006) (emotional/personal context can mitigate sanction; stayed suspension appropriate when misconduct tied to charged personal circumstances)
- Disciplinary Counsel v. Vogtsberger, 119 Ohio St.3d 458 (Ohio 2008) (violation of trust‑account rules warrants substantial sanction regardless of client harm)