DISCIPLINARY COUNSEL v. RIEK
[Citе as Disciplinary Counsel v. Riek, 125 Ohio St.3d 46, 2010-Ohio-1556.]
No. 2009-2244
Supreme Court of Ohio
Submitted January 26, 2010-Decided April 12, 2010.
{1 1} Respondent, F. Benjamin Riek III of Shaker Heights, Ohio, Attorney Registration No. 0022703, was admitted to the practice of law in Ohio in 1978. The Board of Commissioners on Grievances and Discipline recommends that we suspend respondent‘s license to practice for 18 months, with 12 months of the suspension stayed upon the condition that he commit no further misconduct. We accept the board‘s findings of professional misconduct and the recommendation of an 18-month, partially stayed, conditional suspension.
{1 2} Relator, Disciplinary Counsel, charged respondent in a two-count complaint with violations of the Rules of Professional Conduct. The parties stipulated to the facts, misconduct, and aggravating and mitigating factors, and jointly recommended that the board impose a sanctiоn of an 18-month suspension with 12 months of the suspension stayed upon the condition that respondent commit no further misconduct. A panel of three board members heard the case and made findings of fact and conclusions of law.1 The board adopted the panel‘s findings of misconduct and recommended sanction.
{1 3} The parties have not objected to the board‘s report.
Misconduct
Count One-Use of Trust Account as Personal Account
{1 4} The parties stipulated that at all pertinent times, respondent practiced law as a solo practitioner and had a trust account. Between June 2007 and May
{1 5} We accept respondent‘s admission that his conduсt violated
Count Two-Use of Settlement Check Deposited in the Trust Account
{1 6} The parties stipulated that on December 31, 2007, respondent deposited in his trust account a $10,000 settlement check made payable to one of his clients. At the close of business on that day, respondent had a bаlance of $10,343.92 in his trust account. Over the next two weeks, respondent wrote over $8,000 in checks directly from his trust account to pay himself and various personal еxpenses.
{1 7} Shortly thereafter, the client attempted to cash a check for $2,875.60 drawn on the trust account, but it was dishonored. When the client contacted respondent about the check, respondent falsely represented that it had been dishonored because the $10,000 settlement check he had received from the client‘s employer had itself been dishonored. Respondent also informed the client that he would contact the employer about the check and would call the client when the check cleared. On February 12, 2008, respondent falsely advised his client that the employer‘s check had cleared so thаt the client could resubmit the check from the trust account. The next day, the client resubmitted the check, and it cleared.
{1 8} We accept respondent‘s admission that his conduct violated
Sanction
{1 9} “When imposing sanctions for attorney misconduct, we consider relevant factors, including the duties the lawyer violated and sanctions imposed in similar cases.” Toledo Bar Assn. v. Weisberg, 124 Ohio St.3d 274, 2010-Ohio-142, 921 N.E.2d 641, ¶ 15. “To determine the appropriatе sanction, [we also look] at a nonexhaustive list of aggravating and mitigating circumstances, which is found in Section 10(B) of the Rules and Regulations Governing Procedure оn Complaints
{1 10} We have consistently recognized that the “mishandling of cliеnts’ funds either by way of conversion, commingling, or just poor management, encompasses an area of the gravest concern of this court in reviewing claimed attorney misconduct,” Columbus Bar Assn. v. Thompson (1982), 69 Ohio St.2d 667, 669, 23 O.O.3d 541, 433 N.E.2d 602, and that “it is ‘of the utmost importance that attorneys maintain their personal and office accounts separate from their clients’ accounts’ and that any violation of that rule ‘warrants a substantial sanction whether or not the client has been harmed,‘” Disciplinary Counsel v. Wise, 108 Ohio St.3d 381, 2006-Ohio-1194, 843 N.E.2d 1198, ¶ 15, quoting Erie-Huron Counties Joint Certified Grievanсe Commt. v. Miles (1996), 76 Ohio St.3d 574, 577, 669 N.E.2d 831. See generally Crosby, 124 Ohio St.3d 226, 2009-Ohio-6763, 921 N.E.2d 225, ¶ 15.
{1 11} The parties stipulated that there are no aggravating factors here. In mitigation, the parties stipulated and the board found that respondent had no prior disciplinary record, had made full and free disclosure to the board and displayed a cooperative attitude towards the proceеdings, and had presented positive character evidence. BCGD Proc.Reg. 10(B)(2)(a), (d), and (e). In particular, at the hearing before the panel, respondent аdmitted that when he used his trust account to pay personal expenses, he knew that the conduct was wrong.
{1 12} The recommended sanction of an 18-month suspensiоn, with 12 months stayed upon the condition that respondent commit no further misconduct, is within the range of sanctions imposed by the court for similar misconduct involving attorneys whо have failed to properly maintain their trust accounts. See Crosby at ¶ 19 (sanctions have ranged from a stayed six-month suspension to an indefinite suspension).
{1 13} In recommending the sanction, the board reviewed Disciplinary Counsel v. Johnston, 121 Ohio St.3d 403, 2009-Ohio-1432, 904 N.E.2d 892, in which we impоsed a one-year conditionally stayed suspension on an attorney who commingled personal and client funds in his trust account. The board determined that this cаse warranted a harsher penalty because respondent gave his client a check for the net proceeds of a settlement deposited in his trust аccount when it did not have sufficient funds to honor the check because of respondent‘s withdrawal of money to pay his personal expenses. Moreover, when confronted by his client, respondent lied about the reason for the dishonored check. Although the client was ultimately not harmed, respondent‘s decеption justifies the longer partially stayed suspension. Cf. Disciplinary Counsel v. Simmons, 120 Ohio St.3d 304,
{1 14} Upon our independent review of the relevant factors, we agree that the sanction recommended by the board is commensurate with respondent‘s misconduct. We therefore suspend respondent from the practice of law in Ohio for 18 months, with 12 months of the suspension stayed upon the condition that he commit no further misconduct. If respondent fails to comply with the terms of the stay, the stay will be lifted, and respondent will serve the entire 18-month suspension. Costs are taxed to respondent.
Judgment accordingly.
MOYER, C.J.,2 and PFEIFER, LUNDBERG STRATTON, O‘CONNOR, O‘DONNELL, LANZINGER, and CUPP, JJ., concur.
Jonathan E. Coughlan, Disciplinary Counsel, and Joseрh M. Caligiuri, Assistant Disciplinary Counsel, for relator.
F. Benjamin Riek III, pro se.