Disciplinary Counsel v. Riek , 125 Ohio St. 3d 46 ( 2010 )

[Cite as Disciplinary Counsel v. Riek, 125 Ohio St.3d 46, 2010-Ohio-1556.]
DISCIPLINARY COUNSEL v. RIEK.
[Cite as Disciplinary Counsel v. Riek, 125 Ohio St.3d 46, 2010-Ohio-1556.]
Attorneys at law — Misconduct — Commingling — Withdrawals from trust
account for personal expenses — 18-month suspension, partially stayed.
(No. 2009-2244 — Submitted January 26, 2010 — Decided April 12, 2010.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 09-010.
__________________
Per Curiam.
{¶ 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.
{¶ 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 sanction 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. The panel found “by clear and convincing evidence that Respondent violated the rules as set
forth in the Stipulations at pages 4 and 6” but then cited only three of the four rules that the parties
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{¶ 3} The parties have not objected to the board’s report.
Misconduct
Count One – Use of Trust Account as Personal Account
{¶ 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 2008, respondent commingled personal and client funds in his trust
account, overdrew the account on four occasions, and paid personal expenses
directly from the account. For example, respondent gave personal creditors
electronic access to his trust account, and in December 2007, respondent
overdrew his trust account three times to pay for his personal expenses, including
rent.
{¶ 5} We accept respondent’s admission that his conduct violated
Prof.Cond.R. 1.15(a) (requiring a lawyer to hold property of clients or third
persons that is in the lawyer’s possession in connection with a representation
separate from the lawyer’s own property), 1.15(c) (requiring a lawyer to deposit
into a client trust account legal fees and expenses that have been paid in advance,
to be withdrawn by the lawyer only as fees are earned or expenses incurred), and
8.4(h) (prohibiting a lawyer from engaging in conduct that adversely reflects on
the lawyer’s fitness to practice law).
Count Two – Use of Settlement Check Deposited in the Trust Account
{¶ 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 balance of
$10,343.92 in his trust account. Over the next two weeks, respondent wrote over
had stipulated that respondent had violated. We view this omission as inadvertent and conclude
that the panel and board actually found that respondent had committed all of the stipulated
violations. In addition, clear and convincing evidence supports this conclusion.
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January Term, 2010
$8,000 in checks directly from his trust account to pay himself and various
personal expenses.
{¶ 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 that the client could resubmit the
check from the trust account. The next day, the client resubmitted the check, and
it cleared.
{¶ 8} We accept respondent’s admission that his conduct violated
Prof.Cond.R. 1.15(a), 8.4(h), and 8.4(c) (prohibiting a lawyer from engaging in
conduct involving dishonesty, fraud, deceit, or misrepresentation).
Sanction
{¶ 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 appropriate 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 on
Complaints and Hearings Before the Board of Commissioners on Grievances and
Discipline (‘BCGD Proc.Reg.’).” Disciplinary Counsel v. Crosby, 124 Ohio
St.3d 226, 2009-Ohio-6763, 921 N.E.2d 225, ¶ 16.
{¶ 10} We have consistently recognized that the “mishandling of clients’
funds either by way of conversion, commingling, or just poor management,
encompasses an area of the gravest concern of this court in reviewing claimed
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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 Grievance 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.
{¶ 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 proceedings, 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 admitted that when he used his trust account to pay
personal expenses, he knew that the conduct was wrong.
{¶ 12} The recommended sanction of an 18-month suspension, 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 who 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).
{¶ 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 imposed a one-year conditionally stayed suspension on an attorney who
commingled personal and client funds in his trust account. The board determined
that this case warranted a harsher penalty because respondent gave his client a
check for the net proceeds of a settlement deposited in his trust account when it
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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 deception justifies
the longer partially stayed suspension. Cf. Disciplinary Counsel v. Simmons, 120
Ohio St.3d 304, 2008-Ohio-6142, 898 N.E.2d 943, ¶ 11 (violation of former
Disciplinary Rule prohibiting lawyer from engaging in conduct involving
dishonesty, fraud, deceit, or misrepresentation may warrant an actual suspension
from the practice of law).
{¶ 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 Joseph M. Caligiuri,
Assistant Disciplinary Counsel, for relator.
F. Benjamin Riek III, pro se.
______________________
2. The late Chief Justice Thomas J. Moyer participated in the deliberation in, and the final
resolution of, this case prior to his death.
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