Opinion
No. 90-803
Submitted June 19, 1990 —
Decided November 7, 1990.
Attorneys at law — Misconduct — Indefinite suspension — Misappropriation of client's funds — Conviction for mail fraud.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Supreme Court, No. 89-56.
In a complaint filed October 24, 1989, relator, Office of Disciplinary Counsel, charged that respondent, Jay C. Immelt, had violated, inter alia, DR 1-102(A)(3) (engaging in illegal conduct involving moral turpitude), 1-102(A)(4) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), 1-102(A)(5) (engaging in conduct prejudicial to the administration of justice), and 9-102(B)(4) (failing to deliver promptly funds that a client is entitled to receive). A copy of the complaint was served upon respondent, but he did not answer. Accordingly, relator filed a motion for default with supporting documentation pursuant to Gov. Bar R. V(13)(B). The motion was heard by a panel of the Board of Commissioners on Grievances and Discipline of the Supreme Court.
The record in support of the complaint and motion for default substantiates that from the fall of 1987 through August 1988, respondent misappropriated approximately $45,000 from a trust account set up for his clients' funds. In a January 3, 1989 letter to an attorney on relator's staff, respondent acknowledged that he took these funds from three different clients. The three clients were Constance Smoker, from whom respondent misappropriated over $9,900, Sharon Mahr, from whom respondent misappropriated over $6,700, and Betty Rigby, from whom respondent misappropriated approximately $29,000.
In April 1989, respondent was charged by information with one count of mail fraud, a violation of Section 1341, Title 18, U.S. Code, and a felony. Respondent, who apparently turned himself in to federal authorities, was convicted after pleading guilty to the charge. He was fined $3,050, placed on probation for five years, and ordered to make restitution in the amount of $47,182. In May 1989, respondent was indefinitely suspended from the practice of law in Ohio pursuant to Gov. Bar R. V(9)(a)(iii).
The panel granted relator's motion for default by finding that respondent violated the cited Disciplinary Rules. Before making its recommendation, the panel considered that respondent had been experiencing emotional and financial difficulties during the events at issue and that he has a history of alcohol dependency, from which he is apparently now recovering. The panel recommended that respondent be indefinitely suspended from practicing law. The panel further recommended that respondent be specifically required to show complete restitution to his clients and adequate recovery from his illness should he seek readmission to the Ohio Bar. The board adopted the panel's findings and its recommendation.
J. Warren Bettis, disciplinary counsel, and Mark H. Aultman, for relator.
Having thoroughly reviewed the record in this case, we concur in the board's findings that respondent violated DR 1-102(A)(3), (4), and (5), and 9-102(B)(4). We also agree with the board's recommendation. Therefore, we order that respondent be indefinitely suspended from the practice of law in Ohio. Respondent is further ordered to show complete restitution and adequate recovery upon any application he makes for readmission to the Ohio Bar. Costs taxed to respondent.
Judgment accordingly.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT and H. BROWN, JJ., concur.
RESNICK, J., dissents.
The conduct of the respondent merits his disbarment.