CINCINNATI BAR ASSOCIATION v. GILBERT.
No. 2013-0575
Supreme Court of Ohio
Submitted June 5, 2013—Decided February 20, 2014.
138 Ohio St.3d 218, 2014-Ohio-522
{¶ 12} If Jansen or AMAR are determined by this court to be in violation of this consent decree, then there shall be impоsed against them, jointly and severally, a monetary sanction in the minimum amount of $50,000, plus any other sanctions that may be imposed on them by this court. Costs are taxed, jointly and severally, to Jansen and AMAR.
Judgment accordingly.
O‘CONNOR, C.J., and PFEIFER, O‘DONNELL, LANZINGER, KENNEDY, FRENCH, and O‘NEILL, JJ., concur.
Louis F. Solimine; and Maria C. Palermo, for relator.
Montgomery, Rennie & Jonson, George D. Jonson, and Lisa M. Zaring, for respondents.
Per Curiam.
{¶ 1} Respondent, Jason Robert Gilbert of Fort Thomas, Kentucky, Attorney Registration No. 0074044, was admitted to the practice of law in Ohio in 2001.
{¶ 3} We adopt the board‘s findings of fact and misconduct and suspend Gilbert for one year, with the suspension stayed in its entirety on conditions.
Misconduct
{¶ 4} Following graduation from law schоol in 2001, Gilbert took and passed the Ohio bar exam but became employed as a Kentucky public defender.1 In 2002, Gilbert was admitted to the Kentucky bar, and in 2005, he registered for inactive status in Ohio because he workеd exclusively in Kentucky state courts. After ten years as a public defender, Gilbert became dissatisfied with the work and resigned.
{¶ 5} In the autumn of 2011, Gilbert was contacted by the administrative assistant to Michelle Wenker, a Cincinnаti attorney who was in a nursing home after suffering a stroke. Wenker‘s assistant indicated that she needed clerical help in Wenker‘s office. Although Gilbert started out assisting only with Wenker‘s administrative matters, he eventually “drifted” into doing some legal work for her clients. However, Gilbert‘s only legal experience was ten years of public-sector criminal-defense work, and he has since acknowledged that he was “grossly unprepared” for general private practice.
{¶ 6} In December 2011, Gilbert left Wenker‘s office and became a tax advisor. He reactivated his Ohio license in February 2012, and at the time of the panel hearing, he was employed by a company in South Carolina reviewing documents for discovery.
{¶ 7} During the few months that Gilbert worked in Wenker‘s office, he committed professional misconduct in four matters. First, Gilbert filed an answer and counterclaim on Wenker‘s behalf in an Ohio civil proceeding against her, even though he had not yet reactivated his Ohio license. The parties stipulated and the board found that Gilbert violated
{¶ 8} Second, Gilbert met with a former client of Wenker‘s to discuss whether the client was еntitled to money as a beneficiary of a life-insurance policy, and he agreed to represent the client. But Gilbert then failed to resolve the client‘s question or return his phone calls. The parties stipulated and the board found that Gilbert violated
{¶ 9} The third and fourth client matters are similar. In each case, Gilbert met with former clients of Wenker‘s about divorce-related issues and collected a retainer to conduct further work, but he did not deposit thе clients’ money into a client trust account. Although Gilbert did some work on each case, he failed to communicate with the clients, and they eventually terminated his services. Based on this conduct, the parties stipulated and the board found that Gilbert engaged in two violations of
{¶ 10} Relator also alleged that Gilbert violated
Sanction
{¶ 11} When imposing sanctions for attorney misconduct, we consider several relevant factors, including the ethical duties violated, the actual injury caused, the existence of any aggravating and mitigating factors listed in
1. Aggravating and mitigating factors
{¶ 12} The board found, and we agree, that only one aggravating factor is present—Gilbert committed multiple offenses. See
2. Applicable precedent
{¶ 13} As the board noted, we have not hаd many cases involving an attorney who practiced law while registered on inactive status—and even fewer involving an attorney on inactive status who practiced incompetently or neglected сlient matters. In Cincinnati Bar Assn. v. Bucciere, 121 Ohio St.3d 274, 2009-Ohio-1156, 903 N.E.2d 640, an attorney mistakenly believed that his assistant had arranged to register him for active status. He appeared in trial and appellate court proceedings, attended a depositiоn, and agreed to participate in mediation to resolve a dispute, all while his attorney-registration status was inactive. That attorney had no prior discipline, lacked a dishonest or selfish motive, and сooperated in the disciplinary proceedings, and we accordingly issued a public reprimand. Id. at ¶ 4-6.
{¶ 14} In Disciplinary Counsel v. Motylinski, 134 Ohio St.3d 562, 2012-Ohio-5779, 983 N.E.2d 1314, an attorney moved to the Virgin Islands and changed the status of his license to inactive. However, he cоntinued to work on an Ohio case, including participating in a telephone pretrial conference with the court and transmitting a settlement offer. Id. at ¶ 5-6. The attorney in Motylinski also neglected the client matter, which resulted in othеr disciplinary-rule violations. Id. at ¶ 7-8. In mitigation, he lacked a prior disciplinary record and fully cooperated in the investigation, but he also acted with a dishonest motive by hiding his inactive status in order to collect his fеe. On that record, we sanctioned the attorney with a stayed six-month suspension. Id. at ¶ 10-12.
{¶ 15} Here, Gilbert engaged in the practice of law in four client matters while on inactive status, and he has admitted that he was not adequately prepared to handle three of those matters, which resulted in their neglect. Accordingly, a harsher sanction than in Motylinski is warranted. But given the facts and mitigating factors, we agree with the board that Gilbert‘s sanсtion should not be much more severe than the sanction in Motylinski.
{¶ 16} As the board concluded, the amount of legal work that Gilbert actually performed while on inactive status was minimal, involving only the filing of a standard pleading, holding office conferences with clients, and drafting domestic-relations documents that Gilbert never gave to the client or filed in court. Gilbert did not appear in court, attend any depositions, or make any signifiсant legal decisions.
Conclusion
{¶ 18} Having reviewed the record and the aggravating and mitigating factors, and having considered the sanctions previously imposed in comparable unauthorized-practice and client-neglect cases, we find that the board‘s recommended sanction is appropriate. Accordingly, Gilbеrt is hereby suspended from the practice of law for one year, but the suspension is stayed on the conditions that (1) he commit no further misconduct, (2) he pay the costs of these proceedings before expiration of the one-year suspension, and (3) he notify relator or the bar association in the venue where he practices and have that organization provide a monitor to oversee his law practice in accordance with
Judgment accordingly.
O‘CONNOR, C.J., and PFEIFER, O‘DONNELL, LANZINGER, KENNEDY, FRENCH, and O‘NEILL, JJ., concur.
Christopher R. Heekin and Edwin W. Patterson III, for relator.
Jason Robert Gilbert, pro se.