Opinion
D.D. No. 86-31
Decided December 24, 1986.
Attorneys at law — Misconduct — One-year suspension — Failure to promptly pay client funds — Misuse of client's funds.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Bar.
Relator, Cincinnati Bar Association, filed this disciplinary action against the respondent, Thomas B. Walker, before the board of commissioners. Respondent was retained to prosecute the claim of Mary E. Berry against the estate of Kathryn Obermeyer for personal services rendered by Berry prior to Obermeyer's death. A retainer was obtained, as was an agreement which entitled respondent to twenty-five percent of any proceeds recovered from the estate.
Respondent prepared and filed a proof of claim against the estate for $10,000 and ultimately agreed to settle the claim for $8,000. On April 9, 1985, the probate court authorized issuance of the check, made payable to "Mary E. Berry and Thomas B. Walker, her attorney" for $8,000.00. Subsequently, Berry was not informed of the settlement, her name was endorsed without permission on the check, and respondent deposited the check into his personal business account. Following the deposit, respondent used the money for personal and business purposes.
It was not until October 1985, when Berry contacted another attorney, that respondent acknowledged the settlement and agreed to deliver a cashier's check for $8,000 to Berry and her attorney. Respondent, in returning the funds, waived his contingency fee although he apparently kept the $200 retainer.
Relator recommended a sanction of indefinite suspension. In contrast, the board of commissioners recommended a one-year suspension, after having found that respondent violated DR 1-102(A)(4), conduct involving dishonesty, fraud, deceit or misrepresentation; DR 9-102(A), failure to deposit client funds into a trust account; DR 9-102(B)(1), failure to promptly notify a client of a receipt of funds; DR 9-102(B)(4), failure to promptly pay client funds; and DR 1-102(A)(4) and 9-102(B)(4), engaging in deceit and misrepresentation regarding the whereabouts of client funds and failure to promptly return such funds upon the client's inquiry.
Jon Hoffheimer, Charles S. Kamine and John M. Kunst, Jr., for relator.
Bauer, Morelli Heyd Co., L.P.A., and Arnold Morelli, for respondent.
This court finds upon a review of the record that respondent violated the aforementioned Disciplinary Rules. Respondent argues that a penalty less than a one-year suspension would be an appropriate sanction in view of his age, prior record and sole-practitioner status. We disagree.
In Disciplinary Counsel v. Morton (1983), 5 Ohio St.3d 206, this court stated at 208:
"* * * There are few ethical breaches which impact more negatively on the integrity of the legal profession than the misuse of a client's funds. * * *"
In Toledo Bar Assn. v. Gruhler (1985), 16 Ohio St.3d 5, this court further stated at 6:
"This court's disciplinary decisions make it quite clear that misuse of client funds by attorneys will not be tolerated. * * *" See, also, Toledo Bar Assn. v. Potts (1984), 9 Ohio St.3d 89.
After consideration of the totality of the circumstances and the record before us, we are compelled to accept the recommendation of the board of commissioners. Respondent is hereby suspended from the practice of law for a period of one year.
Judgment accordingly.
CELEBREZZE, C.J., SWEENEY, LOCHER, HOLMES, C. BROWN, DOUGLAS and WRIGHT, JJ., concur.