Columbus Bar Assn. v. Kostelac
1997 Ohio 285
Ohio
1997
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COLUMBUS BAR ASSOCIATION v. KOSTELAC.

No. 97-1276

Supreme Court of Ohio

December 31, 1997

80 Ohio St.3d 432

Association stated in its Comment to Rule 3.2 of its Model Rules of Professional Conduct, “Delay should not be indulged merely for the convenience of the advocates, or for the purpose of frustrating an opposing party‘s attempt to obtain rightful redress or repose.” ABA/BNA Lawyers’ Manual on Professional Conduct (1990), at 01:147. Engaging, as respondent did, in a procedure or tactic that had no substantial purpose other than delay constituted representation outside the bounds of the spirit and intent of our law. We conclude that the tactic of delay employed by respondent violated DR 7-102(A)(1).

Moreover, respondent failed to respond to the complaint before this court. Neither in his brief nor in his oral presentation did respondent address either his failure to answer relator‘s complaint or his failure to respond to relator‘s motion for default. Instead, in replying to our order to show cause why the recommendation of the board should not be confirmed by the court, respondent filed a response and objections, a brief in support, and a motion requesting remand. To that document respondent attached five exhibits. In oral argument before this court, respondent also sought to explain his actions in the various cases with new material. As we said in , “Rule V of the Rules for the Government of the Bar of Ohio, setting forth detailed procedures for [disciplinary] matters * * * has no provision for the introduction of evidence in the brief filed in this court or in the oral argument to this court.”

We hereby indefinitely suspend respondent from the practice of law in Ohio. Costs taxed to respondent.

Judgment accordingly.

MOYER, C.J., DOUGLAS, RESNICK, PFEIFER, COOK and HARSHA, JJ., concur.

F.E. SWEENEY, J., dissents and would suspend respondent for one year.

WILLIAM H. HARSHA III, J., of the Fourth Appellate District, sitting for LUNDBERG STRATTON, J.

Janice M. Bernard and Bruce A. Campbell, for relator.

Gregory M. Kostelac, pro se.

Per Curiam. DR 9-102 is clear. Subsections (B)(3) and (4) of the rule require a lawyer to maintain a complete accounting for all funds coming into his possession and promptly to deliver to a client funds which the client is entitled to receive.

This rule is designed to limit the prospect for, or temptation to, use client funds to the client‘s detriment. See . The rule not only protects clients, but motivates lawyers to avoid even the appearance of impropriety. Thus, we have held that even where the client suffers no harm, an attorney‘s commingling of his own funds with client funds or the attorney‘s use of client funds for operating expenses is subject to sanction. ; .

While we are concerned that at one time respondent used his client trust account as an operating account, relator did not charge respondent with a violation of DR 9-102(A) (funds of clients paid to a lawyer shall be deposited in an identifiable bank account in which no funds of the lawyer shall be deposited). Relator, however, did prove that respondent maintained the kind of accounting for his own and his clients’ funds which we characterized in , as “dismal.” Relator also charged and proved that in the Kirk matter respondent did not promptly pay to his client the funds to which she was entitled.

We therefore accept the findings, conclusions, and recommendation of the board. The malefactions in warranted suspension. We therefore suspend respondent from the practice of law for two years with eighteen months of the suspension stayed. After the six-month actual suspension, respondent shall be on probation for eighteen months under the supervision of relator. Costs are taxed to respondent.

Judgment accordingly.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG STRATTON, JJ., concur.