2012 Ohio 4564
Ohio2012Background
- Weiss, admitted to practice in 1968, had an inactive license since September 1, 2009.
- Relator alleged Weiss received a $98,580 settlement check for a client and retained $36,333.93 to which the client was entitled.
- Weiss failed to deliver the remaining funds and did not promptly respond to disciplinary inquiries.
- A master commissioner and Board found Weiss violated ethical rules both before and after the 2007 effective date of the Rules of Professional Conduct.
- Weiss’s client-trust account showed funds misappropriated as Weiss wrote checks to himself and others, depleting funds owed to Lilley.
- The court ordered Weiss indefinitely suspended and restitution of $36,333.93 to Lilley within 30 days.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Weiss committed client funds misappropriation | Weiss failed to promptly deliver funds owed to Lilley and used the trust account personally. | Weiss contested the extent of misappropriation and argued related conduct before/after 2007. | Yes; misappropriation and improper funds handling found. |
| Whether misconduct justifies indefinite suspension | Disciplinary counsel seeks severe sanction given dishonesty and protracted harm to Lilley. | Weiss asserts mitigating factors and no prior discipline over 40 years of practice. | Indefinite suspension imposed with restitution as a condition for potential reinstatement. |
| Whether restitution and cooperation were required | Restitution to Lilley is warranted due to loss of funds and lack of cooperation. | Weiss failed to cooperate; argues health issues but did not remedy funds. | Restitution required within 30 days as part of sanction. |
Key Cases Cited
- Disciplinary Counsel v. Smith, 101 Ohio St.3d 27 (2003-Ohio-6623) (imposing indefinite suspension for serious misconduct after long practice)
- Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio St.3d 424 (2002-Ohio-4743) (weighing aggravating/mitigating factors in sanction decisions)
- Disciplinary Counsel v. Broeren, 115 Ohio St.3d 473 (2007-Ohio-5251) (recognizing factors in determining sanctions and restitution)
- Disciplinary Counsel v. Freeman, 119 Ohio St.3d 330 (2008-Ohio-3836) (application of rules when former and current rules apply to same act)