Opinion
D.D. No. 87-6
Decided August 19, 1987.
Attorneys at law — Misconduct — Two-year suspension, one year suspended — Five-year probation with Alcoholics Anonymous participation and abstention from beverage alcohol — Illegal conduct involving moral turpitude — Engaging in dishonesty, fraud, deceit or misrepresentation — Commingling funds.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Bar.
Relator, Office of Disciplinary Counsel, filed a complaint alleging three counts of misconduct against respondent, Carter Rodney Dodge, on May 30, 1986. This complaint was later amended as to some of its language on December 4, 1986, but the substance of its allegations remained unchanged. Respondent initially replied on October 1, 1986, having been extended time to do so. An answer to the amended complaint was filed on January 6, 1987. A hearing was held before a panel of the Board of Commissioners on Grievances and Discipline of the Bar on February 6, 1987. After several deletions were made at hearing, the facts alleged in Counts I and II of the complaint were stipulated to by counsel and admitted by respondent. These facts revolve around respondent, now a recovering alcoholic, and the services he provided three clients prior to his recovery treatment. These individuals are: Jamie Duque, a convicted felon who was injured when a scaffold collapsed while he was serving time in the Mansfield Reformatory; Dale A. Baker, a fellow inmate of Duque who was injured during the same accident; and Juliet Wills, a former hospital patient who wanted to pursue a malpractice claim. Count III, which proposed that respondent had violated Gov. Bar R. V(4), by failing to respond to the Disciplinary Counsel's notice in connection with Juliet Wills' charge, was dismissed due to evidence revealing respondent's voluntary hospitalization in a detoxification center when the notice was delivered.
Count I of the complaint alleges that respondent was employed by Duque and Baker to represent them in their personal injury actions before the Court of Claims. Respondent settled both Duque and Baker's claims on or about November 30, 1984. Settlement agreements were signed that day. Releases for Baker and Duque were purportedly signed on November 21 and 30, respectively. In fact, Duque signed neither instrument. On February 25, 1985, warrants made payable to Duque and Baker in settlement amounts of $15,000 and $12,000, respectively, were issued. Duque did not endorse the warrant nor did he authorize his signature for that purpose. Baker, on the other hand, had extended respondent a power of attorney. Both the Duque and Baker warrants were deposited thereafter in a bank account belonging to respondent and a coworker. The account had not been set up as a client trust. While Baker and Duque had each agreed to compensate respondent on a one-third contingency basis, Baker was paid only $6,200 toward his $8,000 share and Duque received nothing. The Disciplinary Counsel charged that respondent's conduct in this regard violated DR 1-102(A)(1) (violating Disciplinary Rules); DR 1-102(A)(3) (engaging in illegal conduct involving moral turpitude); DR 1-102(A)(4) (engaging in dishonesty, fraud, deceit, or misrepresentation); DR 1-102(A)(6) (engaging in conduct adversely reflecting on his fitness to practice law); DR 9-102(A) (commingling); and DR 9-102(B) (failing to promptly notify client of receiving his funds and to promptly pay or deliver to client money to which he is entitled).
Count II of the complaint incorporates all the allegations contained in the first and further urges that while employed by Juliet Wills to pursue her malpractice suit, respondent obtained two checks in the amount of $5,000 each from his client's father, purportedly for the purpose of purchasing medical records and procuring expert review. Although the complaint under this count implies that none of these monies was expended for the purpose represented, the parties stipulated that respondent was charged approximately $3,195 in connection with this effort. The balance of the $10,000, however, was not so spent and respondent admitted he failed to provide this client an accounting of the monies used or any information about the action's progress. Indeed, no such suit has been initiated to date. Both checks were deposited in a bank account which had not been set up as a client trust. The Disciplinary Counsel charged that respondent's conduct in this regard violated the Disciplinary Rules identified under Count I, as well as DR 6-101(A)(3) (neglecting a legal matter entrusted to him).
The panel and board found that respondent had violated a number of the Disciplinary Rules enumerated in the complaint. They are: DR 1-102(A) (4), 1-102(A)(6), 9-102(A), and 9-102 (B). The panel and board took note of respondent's remorse, his difficult childhood, his Vietnam veteran status, his extensive pro bono work, his impressive educational and legal achievements, his alcoholism, and his seemingly successful struggle to overcome his affliction. In accordance with these considerations, the board recommended that respondent be suspended for two years from the practice of law in Ohio, one year of which to be suspended. The board further recommended a five-year probation period and that respondent be required to make restitution and remain a member of Alcoholics Anonymous during such probation. Finally, it was recommended by the board that respondent's probationary period be monitored by Robert D. Archibald, a member of the Cleveland Bar Association's Lawyers Assistance Committee who volunteered to attend to this responsibility at the hearing.
J. Warren Bettis, disciplinary counsel, and Charles T. Brown, for relator.
John W. Bosco, for respondent.
This court finds respondent violated the aforementioned Disciplinary Rules indicated by the board. The evidence presented illustrates that respondent, while the victim of uncontrolled alcoholism, did misuse client remuneration illegally and in a fashion which severely compromised client trust.
Accordingly, this court adopts the recommendation of the board. Respondent is hereby suspended from the practice of law in Ohio for two years, one year of which is suspended. In addition, respondent is hereby placed on probation to last five years from the date of this decision during which time respondent must make restitution, abstain from the use of beverage alcohol, and remain an active member of Alcoholics Anonymous. Costs taxed to respondent.
Judgment accordingly.
MOYER, C.J., SWEENEY, LOCHER, HOLMES, DOUGLAS, WRIGHT and H. BROWN, JJ., concur.