Trumbull Cty. Bar Assn. v. Dull (Slip Opinion)
2017 Ohio 8774
| Ohio | 2017Background
- Joseph T. Dull, an Ohio attorney since 1976 and longtime Niles law director, served as trustee of an investment trust for client Joseph S. Scaglione. In 2011 Scaglione gave Dull $45,000 to invest in a Vanguard fund; Dull instead deposited the funds into his client trust account and failed to invest them.
- Between 2011 and 2013 Dull intermittently withdrew trust funds for personal/business expenses; by 2015 he had withdrawn $37,000 and paid Scaglione $8,000 earlier, leaving insufficient funds when Scaglione requested $27,000.
- Scaglione terminated Dull as trustee and filed a grievance. Dull ultimately repaid $37,000 with family assistance and an additional $11,550 for lost interest/opportunity; he admitted recordkeeping failures and not disclosing lack of malpractice insurance.
- The Board of Professional Conduct found violations of Prof.Cond.R. 1.4(c), 1.15(a), 1.15(a)(2), and 8.4(c), and recommended a one-year suspension with six months stayed on conditions.
- The Supreme Court adopted the misconduct findings but imposed a harsher sanction: a two-year suspension with the second year stayed, conditioned on CLE regarding client trust-account compliance and no further misconduct; costs taxed to Dull.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Dull misappropriated client funds and violated professional-conduct rules | Relator: Dull misappropriated trust funds, failed to maintain required records, and failed to disclose lack of malpractice insurance, violating Prof.Cond.Rs. 1.4(c), 1.15, 8.4(c) | Dull stipulated to many facts, acknowledged misconduct, and emphasized restitution and lack of prior discipline | Court found violations as charged and adopted the board's misconduct findings |
| Appropriate sanction for misappropriation | Relator: misappropriation presumptively warrants disbarment, but mitigation may reduce sanction; sought suspension consistent with seriousness | Dull emphasized full restitution, long unblemished career, cooperation, and mitigation to avoid disbarment | Court imposed a two-year suspension with second year stayed (more severe than board) given amount, duration, and risk of recurrence |
| Role of aggravating/mitigating factors in sanction | Board/relator relied on aggravators (dishonest motive, pattern, vulnerable victim) and mitigators (no prior record, restitution, cooperation) to calibrate sanction | Dull relied on mitigators to justify a shorter or stayed suspension | Court weighed factors and concluded mitigators insufficient to avoid an actual suspension; imposed conditional stay for second year |
| Conditions for stayed portion of suspension | Board recommended CLE on trust-account compliance and no further misconduct as conditions | Dull accepted conditions and willingness to remediate | Court imposed the recommended conditions; stay will be lifted for violation |
Key Cases Cited
- Disciplinary Counsel v. Burchinal, 133 Ohio St.3d 38 (2012) (misappropriation presumptively warrants disbarment)
- Disciplinary Counsel v. Edwards, 134 Ohio St.3d 271 (2012) (mitigating circumstances can temper presumptive disbarment)
- Disciplinary Counsel v. Gorby, 142 Ohio St.3d 35 (2015) (fully stayed one-year suspension in limited-family-misappropriation context)
- Disciplinary Counsel v. Dockry, 133 Ohio St.3d 527 (2012) (conditionally stayed one-year suspension for misappropriation)
- Cincinnati Bar Assn. v. Hauck, 129 Ohio St.3d 209 (2011) (one-year suspension with six months stayed for misappropriation)
- Disciplinary Counsel v. Claflin, 107 Ohio St.3d 31 (2005) (two-year suspension, second year stayed, for isolated misappropriation in otherwise unblemished career)
- Disciplinary Counsel v. Gildee, 134 Ohio St.3d 374 (2012) (two-year suspension with second year stayed in misappropriation case with mitigating career history)
- Cleveland Bar Assn. v. Belock, 82 Ohio St.3d 98 (1998) (emphasis on strict discipline to maintain public confidence in bar)