Disciplinary Counsel v. Simon
128 Ohio St. 3d 359
| Ohio | 2011Background
- Respondent Thomas J. Simon, admitted 1981, faced a disciplinary complaint alleging trust-account misconduct and failure to respond to inquiry.
- From Mar 2007–Dec 2008, Simon commingled client funds, personal funds, and attorney fees in his client trust account.
- From Jun 2005–Mar 2009, he wrote checks to himself and others, treating the trust account as personal funds, without proper separation.
- He initially responded to inquiries but delayed providing 2005–2008 tax returns; he later supplied them before consent-to-discipline.
- Before Feb 1, 2007, conduct violated DR 1-102(A)(6) and 9-102(A); after that date, violated Prof.Cond.R. 1.15(a) and 8.4(h); and 8.1(b), 8.4(d), Gov.Bar R. V(4)(G).
- Board recommended a one-year stayed suspension; no client harm or account overdrafts were shown; no prior discipline.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Simon’s commingling violate ethics rules? | Simon violated DR 1-102(A)(6) and 9-102(A). | No overriding intent to harm; manageable accounting errors. | Yes; violations established. |
| Was failure to preserve client funds a violation? | Location of client funds was improper due to commingling. | No intent to misuse; funds properly handled later. | Yes; 1.15(a) violated. |
| Did the failure to cooperate in investigation support discipline? | Respondent failed to respond fully to discovery requests. | Respondent eventually provided documents; no intent to obstruct. | Yes; 8.1(b) violated. |
| Is the proposed sanction appropriate given the misconduct? | A suspension is warranted; possible more due to pattern. | One-year stayed suspension with monitoring suffices. | One-year stayed suspension imposed. |
| Should aggravating/mitigating factors affect the sanction? | Aggravating factors exist due to pattern; need stricter discipline. | Mitigating factors (no prior discipline, good character) lessen sanction. | Mitigating factors prevail; sanctions reduced to stay. |
Key Cases Cited
- Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio St.3d 424 (2002-Ohio-4743) (weighs factors and precedents in sanctioning)
- Disciplinary Counsel v. Broeren, 115 Ohio St.3d 473 (2007-Ohio-5251) (balancing aggravating/mitigating factors in discipline)
- Disciplinary Counsel v. Johnston, 121 Ohio St.3d 403 (2009-Ohio-1432) (comparing severity of commingling and consequences)