Opinion
D.D. No. 87-22
Decided May 4, 1988.
Attorneys at law — Misconduct — Indefinite suspension on conditions — Commingling funds — Passing bad checks — Compulsive gambling — Full restitution required.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Bar.
On November 4, 1985, relator, Dayton Bar Association, filed a complaint alleging four counts of misconduct against respondent, James L. Todd. The complaint was amended by the adding of a fifth count of misconduct on April 29, 1986. Respondent answered the amended complaint on May 30, 1986, admitting most of the factual allegations. The matter was heard by a panel of the Board of Commissioners on Grievances and Discipline of the Bar on December 5, 1986. After hearing all the evidence, the panel dismissed Counts I, II, and III.
Count IV of the amended complaint alleged that respondent was engaged to represent Ronald Antrican in a transaction to purchase a tavern, then known as the Winner's Circle Bar, from James L. Cropper. The purchase agreement for the tavern provided that a $25,000 down payment toward the $55,000 purchase price would be held in escrow in respondent's trust account until the tavern's liquor permit transferred to the buyer and that this down payment would become due at that time. Antrican, however, was not the designated purchaser. Rather, the agreement identified Vickie L. Combs, Antrican's sister-in-law, as the buyer because Antrican and respondent anticipated that Antrican's felony record would prevent approval of a liquor permit in Antrican's name. The purchase agreement was executed on April 30, 1984.
Antrican's testimony established that he had been convicted twice for gambling and once on a drug-related charge prior to the events at issue. He was convicted on a third gambling charge in 1984. Respondent defended Antrican in the third and fourth felony convictions, the latter of which resulted in a six-month sentence and Antrican's first term of imprisonment. Antrican's testimony further established that he was respondent's bookmaker prior to the period in which the instant misconduct occurred.
On April 26, 1984, respondent deposited the $25,000 in his trust account and executed a cognovit note securing Cropper's interest in the amount. What became of this sum was the subject of conflicting testimony. Respondent testified that Antrican asked him to return the money in cash within days of the date the deposit was made. Respondent said that he complied with Antrican's request by making a series of checks out to himself during the first two weeks of May 1984 and then giving the cash to Antrican. Respondent's explanation included, however, that he went to Atlantic City to gamble on the weekend after he had made the deposit. There, respondent experienced gambling losses to the extent that he had to ask Antrican for more money. According to respondent, Antrican authorized him to withdraw $4,500 from the trust account and respondent's secretary wired the money to a casino for respondent's use. Respondent said that his subsequent winnings allowed him to repay Antrican by the date the purchase agreement was signed.
Antrican's explanation differed dramatically from respondent's. Antrican testified that he had not given respondent any authority whatsoever to withdraw money from the trust account. Furthermore, Antrican said that respondent had admitted losing the entire $25,000 amount in Atlantic City.
In any event, when the transfer of the liquor permit was approved by the Ohio Department of Liquor Control, respondent did not have the down payment. Accordingly, when Cropper requested payment of the $25,000, respondent failed to remit this sum. Relator charged that this and the aforementioned conduct violated, inter alia, DR 1-102(A)(5) (engaging in conduct prejudicial to the administration of justice), 9-102(A) (failing to preserve the identity of a client's funds and property), and 9-102(B)(3) (failing to maintain complete records of a client's funds and to render appropriate accounts).
Count V of the amended complaint alleged that on January 6, 1986, respondent was found guilty on two counts of passing bad checks in violation of R.C. 2913.11. It further alleged that those convictions had not been appealed. Relator charged that respondent had thereby violated DR 1-102(A) (1) (violating a Disciplinary Rule), 1-102(A)(3) (engaging in illegal conduct involving moral turpitude), 1-102(A)(4) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 1-102(A)(5) and 1-102(A)(6) (engaging in conduct that adversely reflects on one's fitness to practice law).
As a result of these convictions, respondent was indefinitely suspended from the practice of law in Ohio on April 16, 1986, pursuant to Gov. Bar R. V(8)(a)(iii), now Gov. Bar R. V(9)(a)(iii).
The board found that respondent had violated DR 1-102(A)(1), 1-102(A)(3), 1-102(A)(4), 1-102(A)(5), 1-102(A)(6), 9-102(A) and 9-102(B)(3). Before making its recommendation, however, it considered respondent's admitted difficulty in managing what appeared to be a compulsive gambling habit. It also considered the testimony of several character witnesses offered in respondent's behalf. Nevertheless, the board recommended that respondent be permanently disbarred.
Carmine Garofalo, for relator.
Philip B. Herron, for respondent.
This court finds that respondent violated the aforementioned Disciplinary Rules indicated by the board and hereby adopts its factual findings. We also concur in the board's conclusion that respondent's misconduct requires a severe sanction. We cannot ignore, however, the evidence suggesting respondent's compulsion to gamble, and that this compulsion contributed significantly to the circumstances from which this complaint arose. Moreover, we are impressed with the mitigating evidence which substantiates that, notwithstanding the instant misconduct, respondent's competence as a criminal defense practitioner is recognized by members of the judiciary and the prosecutor's office.
The foregoing persuades us that a sanction other than disbarment is needed in this case. Therefore, it is ordered that respondent be indefinitely suspended from the practice of law in Ohio. It is further ordered that no petition for reinstatement filed on respondent's behalf be considered for a period of two years from the date of this decision and then only upon the submission by clear and convincing proof of the following:
(1) that respondent has overcome any compulsive gambling condition with which he may be afflicted, such that he is demonstrably rehabilitated, and
(2) that respondent has made full restitution with respect to the matters which led to his convictions for violating R.C. 2913.11, as well as all sums owed due to respondent's involvement in efforts to purchase the Winner's Circle Bar.
Costs taxed to respondent.
Judgment accordingly.
MOYER, C.J., SWEENEY, LOCHER, DOUGLAS, WRIGHT and H. BROWN, JJ., concur.
HOLMES, J., dissents.
The misconduct proven in this disciplinary matter warrants a sanction of disbarment.