Disciplinary Counsel v. Joltin (Slip Opinion) , 147 Ohio St. 3d 490 ( 2016 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Joltin, Slip Opinion No. 2016-Ohio-8168.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
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SLIP OPINION NO. 2016-OHIO-8168DISCIPLINARY COUNSEL v. JOLTIN.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Disciplinary Counsel v. Joltin, Slip Opinion No.
2016-Ohio-8168.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct,
including misappropriation of client funds, failing to keep a client
reasonably informed about the status of a legal matter, failing to promptly
deliver funds that a client is entitled to receive, failing to cooperate in a
disciplinary investigation, and failing to properly maintain and use a client
trust account—Two-year suspension with one year stayed on conditions.
(No. 2016-0261—Submitted August 16, 2016—Decided December 19, 2016.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2015-022.
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SUPREME COURT OF OHIO
Per Curiam.
{¶ 1} Respondent, Benjamin Joltin of Canfield, Ohio, Attorney Registration
No. 0072993, was admitted to the practice of law in Ohio in November 2000. In a
complaint certified to the Board of Professional Conduct on April 13, 2016, relator,
disciplinary counsel, charged Joltin with multiple violations of the Rules of
Professional Conduct arising largely from the financial mismanagement of his
practice. Among other things, the complaint alleged that he commingled personal
and client funds, misappropriated client funds, failed to promptly deliver funds that
clients or third persons were entitled to receive, misled a client about the reason he
was unable to promptly deliver her funds, and failed to maintain any records
regarding his client trust account for several years. The parties submitted stipulated
findings of fact and misconduct, aggravating and mitigating factors, and 77
stipulated exhibits. They also agreed to dismiss two alleged rule violations.
{¶ 2} After hearing Joltin’s testimony and reviewing the stipulated
evidence, a panel of the Board of Professional Conduct issued a report largely
adopting the parties’ stipulations of fact and misconduct and recommending the
dismissal of an additional alleged violation. Although relator argued that Joltin’s
misconduct warranted an indefinite suspension from the practice of law, and Joltin
argued in favor of a fully stayed suspension, the panel recommended that Joltin be
suspended from the practice of law for two years, with the final 18 months stayed
on conditions. The board adopted the panel’s report in its entirety. Relator objects
to the board’s recommended sanction and urges us to impose a two-year suspension
with no stay.
{¶ 3} For the reasons that follow, we sustain relator’s objection in part,
overrule it in part, and suspend Joltin from the practice of law for two years with
the second year stayed on conditions.
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January Term, 2016
Misconduct
Count One: The Torok Matter
{¶ 4} In September 2012, Lisa Torok hired Joltin to represent her in a
complex divorce case. Joltin stipulated that he agreed to accept a flat fee of $2,500,
which was later increased to $3,000. But Torok gave him a check for $18,000 to
hold in his trust account to cover her legal fees, with the balance to be distributed
to her at her direction.1 At the time Joltin deposited Torok’s check, his client-trust-
account balance was $28.70. Six days later, he issued a $4,000 check to himself
with the notation “Torok” on the subject line, but he had not earned that amount as
either a fee or a reimbursement of expenses.
{¶ 5} In November 2012, Joltin deposited $88,000 in personal funds into
his client trust account, thereby commingling personal and client funds. Although
he initially testified that the deposited funds were an inheritance, he later conceded
that they represented an executor’s fee he had earned from his grandparents’ estate.
At Torok’s request in January 2013, Joltin issued her a check for $15,000, but when
she attempted to cash the check in September, the bank returned it for insufficient
funds. After the client informed Joltin that the check had been dishonored, he sent
her an e-mail message stating that the domestic relations court had placed a
restraining order on the distribution of the funds, but it was Joltin’s use of Torok’s
money for his personal purposes—not the restraining order—that caused the bank
to dishonor the check.
{¶ 6} Joltin later issued two checks to Torok—one for $1,800 in September
2013 and another for $5,000 in December 2013—and should have held another
$11,200 of her money in trust. But as of January 1, 2014, his client trust account
balance was just $421.78.
1
The purpose of the excess funds is not established in the record, and relator has not alleged that
either Joltin or Torok intended to conceal assets from Torok’s spouse in the divorce proceeding.
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SUPREME COURT OF OHIO
{¶ 7} Torok terminated Joltin’s representation on February 25, 2014, and a
fee dispute ensued. Torok claimed that they had agreed to a fixed fee of $2,500,
and Joltin claimed that the $18,000 deposit was a retainer toward his hourly fees,
which were in excess of $4,000. Joltin ultimately agreed to accept $3,000 plus
$300 for filing fees and expenses. After Joltin gave Torok a $4,900 cashier’s check
in April 2014, he still owed her $3,000, but he did not respond to her numerous
attempts to obtain the remaining funds. He did not refund the final $3,000 to Torok
until December 7, 2015—just 9 days before his disciplinary hearing.
{¶ 8} Relator sent his first letter of inquiry to Joltin on March 27, 2014, but
Joltin did not timely respond. He responded to a second letter of inquiry, and his
attorney responded in part to another letter promising to provide additional
information. When the additional information was not sent, a deposition was
scheduled. But after requesting and receiving several continuances and being
subpoenaed for a November 2014 deposition, Joltin failed to appear at the
appointed time. The board did not find Joltin’s testimony that an attorney friend
had told him that the deposition had been postponed to be credible, because he
offered no evidence to corroborate it and the scheduling letter plainly stated that the
deposition would not be rescheduled for any reason.
{¶ 9} The parties stipulated and the board found that Joltin’s conduct
violated Prof.Cond.R. 1.15(c) (requiring a lawyer to deposit advance legal fees and
expenses into a client trust account, to be withdrawn by the lawyer only as fees are
earned or expenses incurred), 1.15(d) (requiring a lawyer to promptly deliver funds
or other property that the client is entitled to receive), 1.16(e) (requiring a lawyer
to promptly refund any unearned fee upon the lawyer’s withdrawal from
employment), 8.4(c) (prohibiting a lawyer from engaging in conduct involving
dishonesty, fraud, deceit, or misrepresentation), and 8.1(b) and Gov.Bar R. V(9)(G)
(both requiring an attorney to cooperate with a disciplinary investigation). Because
relator failed to present any evidence addressing the factors to be considered in
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January Term, 2016
determining whether Joltin’s fee was reasonable, however, the board recommended
that we dismiss an alleged violation of Prof.Cond.R. 1.5(a) (prohibiting a lawyer
from making an agreement for, charging, or collecting an illegal or clearly
excessive fee).
{¶ 10} We adopt the board’s findings of fact and agree that Joltin’s conduct
violated Prof.Cond.R. 1.15(c), 1.15(d), 1.16(e), 8.1(b), and 8.4(c) and Gov.Bar R.
V(9)(G), and we dismiss the alleged violation of Prof.Cond.R. 1.5(a) with respect
to this count.
Count Two: The Cayavec Matter
{¶ 11} In 2009, Joltin represented Roger Johnson in a personal-injury
matter. Before settling the case, Joltin received a notice of assignment from
Johnson’s treating physician, Dr. Michael Cayavec. On October 29, 2009, he sent
Dr. Cayavec a letter of protection accepting the terms of the assignment. Joltin
settled Johnson’s case in September 2013 and distributed the settlement proceeds
to his client, but he did not notify or pay Dr. Cayavec because he had misplaced
and forgotten the letter of protection. Although relator sent Joltin two letters of
inquiry regarding the doctor’s grievance in October 2014, Joltin waited until March
12, 2015, to respond. He did not pay Dr. Cayavec the $3,400 that he was owed
until December 7, 2015.
{¶ 12} The parties stipulated and the board found that Joltin violated
Prof.Cond.R. 1.15(d) by failing to promptly deliver the funds to which Dr. Cayavec
was entitled and that he violated Prof.Cond.R. 8.1(b) and Gov.Bar R. V(9)(G) by
failing to timely cooperate in the resulting disciplinary investigation. The board
also dismissed an additional alleged violation on relator’s motion. We adopt the
board’s findings of fact and misconduct with respect to this count.
Count Three: The Patterson Matter
{¶ 13} In February 2014, Joltin agreed to assume representation of Mark
Patterson in an eviction matter as a favor to another lawyer who was unable to
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complete the representation. Patterson paid him $205—$105 of which was for
filing fees. Although Joltin attempted to file the eviction action, the court twice
rejected his filings for technical deficiencies. Patterson attempted to reach Joltin
by telephone from mid-March through early June, but spoke only with a secretary
who assured him that Joltin was working on the case. Joltin did not respond to an
e-mail in which Patterson detailed the issues to be set forth in the eviction
documents. In April and May 2014, Patterson sent e-mails terminating Joltin’s
representation and requesting a refund, but Joltin did not respond to either e-mail.
Joltin’s March 2015 response to relator’s November and December 2014 letters of
inquiry was neither complete nor timely. And he waited until the following
December to refund Patterson’s $205.
{¶ 14} The parties stipulated and the board found that Joltin’s conduct in
the Patterson matter violated Prof.Cond.R. 1.3 (requiring a lawyer to act with
reasonable diligence in representing a client), 1.4(a)(3) (requiring a lawyer to keep
the client reasonably informed about the status of a matter), 1.15(d), 1.16(d)
(requiring a lawyer withdrawing from representation to take steps reasonably
practicable to protect a client’s interest), 1.16(e), and 8.1(b) and Gov.Bar R.
V(9)(G). The board also dismissed an additional violation on the motion of relator.
We adopt the board’s findings of fact and misconduct with respect to this count.
Count Four: Trust-Account Records
{¶ 15} Joltin testified that he stopped maintaining client-trust-account
records in 2008 and did not resume that practice until relator commenced his
investigation in 2013. He admitted that he did not maintain a record of the funds
he held on behalf of each client and that he did not maintain his bank statements or
perform a monthly reconciliation of his client trust account. He also admitted that
he had no idea what his client trust account balance was in 2012 when he should
have been holding Torok’s funds.
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January Term, 2016
{¶ 16} Joltin stipulated that he repeatedly misused his client trust account
and failed to safeguard client funds from December 2012 through March 2014—
spending client funds before they were earned, repeatedly commingling personal
and client funds, and paying his personal expenses directly from his client trust
account on at least 85 occasions. Joltin’s client trust account was overdrawn on
multiple occasions, and he failed to respond to at least four of relator’s letters of
inquiry regarding those overdrafts. He also failed to appear pursuant to subpoena
at two depositions to address these overdrafts—the first was set for April 14, 2014,
and the second, also discussed in Count One above, was scheduled for November
5, 2014.
{¶ 17} The board found that Joltin’s conduct violated Prof.Cond.R.
1.15(a)(2) (requiring a lawyer to maintain a record for each client that sets forth the
name of the client; the date, amount, and source of all funds received on behalf of
the client; the date, amount, payee, and purpose of each disbursement made on
behalf of the client; and the current balance for each client), 1.15(a)(3) (requiring a
lawyer to maintain a record for the lawyer’s client trust account, setting forth the
name of the account, the date, amount, and client affected by each credit and debit,
and the balance in the account), 1.15(a)(4) (requiring a lawyer to maintain all bank
statements, deposit slips, and cancelled checks, if provided by the bank, for each
bank account), 1.15(a)(5) (requiring a lawyer to perform and retain a monthly
reconciliation of the funds held in the lawyer’s client trust account), 1.15(b)
(permitting a lawyer to deposit his or her own funds in a client trust account for the
sole purpose of paying or obtaining a waiver of bank service charges), 1.15(c), and
8.1(b) and Gov.Bar R. V(9)(G). We adopt the board’s findings of fact and
misconduct with respect to Count Four of the complaint.
Sanction
{¶ 18} When imposing sanctions for attorney misconduct, we consider
relevant factors, including the ethical duties the lawyer violated and the sanctions
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imposed in similar cases. Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio St.3d 424,
2002-Ohio-4743, 775 N.E.2d 818, ¶ 16. We also weigh evidence of the aggravating
and mitigating factors listed in Gov.Bar R. V(13).
{¶ 19} As aggravating factors, the parties stipulated and the board found
that Joltin committed multiple offenses, engaged in a pattern of misconduct, and
failed to cooperate in the disciplinary process until after relator filed his complaint
with the board. See Gov.Bar R. V(13)(B)(3), (4), and (5). The board also found
that he acted with a dishonest and selfish motive by distributing $4,000 of Torok’s
funds from his client trust account to himself within days of the initial deposit
without having earned that amount. See Gov.Bar R. V(13)(B)(2).
{¶ 20} The parties stipulated and the board agreed that mitigating factors
include the absence of a prior disciplinary record and letters from friends and
colleagues attesting to Joltin’s good character and reputation, as demonstrated by
his professional competence, attention to detail, zealous advocacy, courteous
behavior both in and out of the courtroom, and good reputation for truth and
veracity. See Gov.Bar R. V(13)(C)(1) and (5). The board also afforded mitigating
effect to Joltin’s remorse, noting that he freely acknowledged the wrongfulness of
his conduct and wrote formal letters of apology to the affected clients.
{¶ 21} The board accepted the parties’ stipulations that Joltin made full and
free disclosure of his actions to the disciplinary board and that he made a “good
faith effort to make restitution,” but it afforded very little weight to these factors
because his actions were not timely. See Gov.Bar R. V(13)(C)(3) (providing that a
timely, good-faith effort to make restitution or to rectify the consequences of
misconduct may be considered as a mitigating factor). And although Joltin testified
that he had limited the scope of his practice, had revised his general office
procedures, had begun to comply with Prof.Cond.R. 1.15 requirements regarding
his client trust accounts, and had voluntarily engaged a mentor just days before the
hearing in this matter, the board did not give those factors any mitigating effect.
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{¶ 22} The board discussed multiple events in Joltin’s personal life—
including three deaths in his family and the unraveling of his marriage—that
negatively affected his physical and mental health at the time of the charged
misconduct, his consultations with mental-health professionals, and his decision to
enter into a three-year contract with the Ohio Lawyers Assistance Program on
December 1, 2015. It determined, however, that the evidence was insufficient to
establish that Joltin suffered from a mental disorder that was causally related to his
misconduct. See Gov.Bar R. V(13)(C)(7). And the board was not convinced that
the steps he had recently taken to address his mental-health issues would prove
effective over time. Thus, the board did not consider those personal challenges to
be mitigating factors, stating that there was not proof that they were a cause of his
misconduct.
{¶ 23} For misconduct that included significant violations including a
complete failure to maintain required client-trust-account records and
misappropriation of client funds, relator recommended that Joltin be indefinitely
suspended from the practice of law. Joltin argued in favor of a fully stayed
suspension.
{¶ 24} After comparing the facts of this case to those in the cases
propounded by the parties, however, the board found Joltin’s conduct to be most
comparable to Disciplinary Counsel v. Coleman, 144 Ohio St.3d 35, 2015-Ohio-
2489, 40 N.E.3d 1092. Coleman accepted $18,000 from an incarcerated client and
agreed to invest the money on the client’s behalf. Id. at ¶ 5. But he misappropriated
the money. Id. at ¶ 5-6. When the client directed Coleman to make several
distributions, he made them from his personal funds, but the client grew suspicious
because the disbursements were made with money orders and cashier’s checks. Id.
at ¶ 6-7. Coleman falsely assured the client and presented him with a fraudulent
ledger in an effort to persuade him that the funds remained safely deposited in his
client trust account. Id. at ¶ 7. The client terminated the representation and
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demanded that Coleman return his money. Eventually, Coleman began to make
periodic payments to the client, but it took him almost two years to repay the money
that he had misappropriated. Id.
{¶ 25} We found that Coleman’s conduct violated Prof.Cond.R. 1.15(a),
1.15(a)(2), 1.15(a)(3), 1.15(a)(5), and 8.4(c). As aggravating factors, we found that
Coleman acted with a selfish motive by converting his client’s money to his own
use and that he caused harm to a vulnerable client. Id. at ¶ 10; see also Gov.Bar R.
V(13)(B)(2) and (8). Mitigating factors included his full disclosure and cooperative
attitude toward the disciplinary proceedings as well as his good character and
reputation. Id. at ¶ 10; see also Gov.Bar R. V(13)(C)(4) and (5). We also attributed
some mitigating effect to the personal hardships Coleman faced as the single parent
of three children following a drastic decrease in his court-appointed caseload and
income as the result of a change in appointment procedures. Id. at ¶ 14-15.
Considering these factors and having determined that an actual suspension was
warranted for Coleman’s misconduct, we suspended him from the practice of law
for two years with 18 months stayed on the conditions that he work with a law-
practice monitor for the duration of the stayed suspension and engage in no further
misconduct. Id. at ¶ 17.
{¶ 26} Given the similarities between the financial misdeeds of Coleman
and Joltin—including their commingling, misappropriation, failure to maintain
adequate records of client funds in their possession, and false statements to their
clients—the board concluded that their conduct warranted comparable sanctions.
It therefore recommended that we suspend Joltin for two years but stay the final 18
months on the conditions that he (1) serve a period of monitored probation, (2)
complete three hours of continuing legal education (“CLE”) addressing trust-
account maintenance in addition to the CLE required by Gov.Bar R. X(13), (3) fully
comply with his existing OLAP contract, and (4) commit no further misconduct.
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{¶ 27} Relator objects to the board’s recommended sanction and argues that
Joltin’s multiple acts of misconduct, including dishonesty and the misappropriation
of client funds, warrants a harsher sanction. Comparing that conduct with the
conduct at issue in Disciplinary Counsel v. McCauley, 114 Ohio St.3d 461, 2007-
Ohio-4259, 873 N.E.2d 269, and Disciplinary Counsel v. Crosby, 124 Ohio St.3d
226, 2009-Ohio-6763, 921 N.E.2d 225, relator suggests that the appropriate
sanction is a two-year suspension from the practice of law with no stay.
{¶ 28} In McCauley, we indefinitely suspended an attorney who
commingled personal and client funds, misappropriated funds from his client trust
account to pay his personal and business expenses, overdrew his client trust
account, and failed to maintain complete records regarding the client funds in his
possession. Id. at ¶ 5-6. But McCauley misappropriated approximately $200,000
from two clients who consigned their accounts receivable to him for collection and
payment—whereas Joltin misappropriated $18,000. In addition, McCauley
defaulted on a cognovit promissory note that he signed as part of an agreement to
reimburse one of the clients from whom he misappropriated accounts receivable.
He also misappropriated significant sums that he held on behalf of a third client and
spent an additional $60,000 that had been deposited in his account due to a bank
error. Id. at ¶ 10-11, 14-15. Like Joltin, McCauley ignored or failed to sufficiently
respond to relator’s letters of inquiry about the underlying grievances, although he
eventually stipulated that he engaged in much of the charged misconduct. Id. at
¶ 6, 12, 20, 21.
{¶ 29} We acknowledged that disbarment is the presumptive sanction for
the misappropriation of client funds. Id. at ¶ 22; see, e.g., Cincinnati Bar Assn. v.
Rothermel, 104 Ohio St.3d 413, 2004-Ohio-6559, 819 N.E.2d 1009. But we found
that McCauley’s lack of a prior disciplinary record, eventual cooperation in the
disciplinary proceedings, and acknowledgment of wrongdoing and sincere remorse,
combined with payment of full restitution to his clients, outweighed aggravating
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factors that included multiple offenses and a pattern of misconduct. Id. at ¶ 23; see
also Gov.Bar R. V(13)(C)(1), (3), and (4) and V(13)(B)(3) and (4). Therefore, we
accepted the board’s recommendation that McCauley be indefinitely suspended
from the practice of law in Ohio and be required to complete at least 12 hours of
CLE in law-office and trust-account management in addition to the general CLE
requirements. Id. at ¶ 24.
{¶ 30} In Crosby, we confronted an attorney who commingled personal and
client funds, used his client trust account as a personal checking account, failed to
maintain complete records of all client funds coming into his possession, failed to
properly train or supervise the employee he entrusted to maintain his client trust
account, and retained earned fees in his client trust account in a deliberate attempt
to shield the funds from judgment creditors and taxing authorities. Crosby, 124
Ohio St.3d 226, 2009-Ohio-6763, 921 N.E.2d 225, at ¶ 5, 8-9, 12-13.
{¶ 31} Although Crosby was not charged with misappropriating client
funds, the evidence showed that he overdrew his client trust account and that on at
least one occasion the account balance was nearly $8,000 less than the amount that
had been entrusted to him by one of his clients. Id. at ¶ 9 and fn. 2. In mitigation,
we found that Crosby had no prior disciplinary record and there was no evidence
that he failed to make his clients whole. Id. at ¶ 16. Aggravating factors, however,
included a pattern of misconduct, failure to fully cooperate in the disciplinary
process, and Crosby’s dishonest and selfish efforts to hide his personal funds from
his creditors. Id. at ¶ 17. On those facts, we suspended Crosby for two years with
no stay and conditioned his reinstatement on the completion of 12 hours of CLE in
law-office management and accounting in addition to the standard CLE
requirement and payment or compromise of nearly $26,000 in judgments that had
been taken against him. Id. at ¶ 22-34.
{¶ 32} While there is no doubt that Joltin’s conduct is serious and warrants
a period of actual suspension from the practice of law, it is not comparable to
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McCauley’s misappropriation of more than $300,000 from his clients and his bank.
And while Joltin’s misconduct is similar to that of Crosby, we find that Crosby’s
conduct was more egregious in that he admitted that he commingled personal and
client funds not only as a convenience but also to shield his personal assets from
judgment creditors and taxing authorities. Crosby at ¶ 13. In contrast, relator did
not allege in its complaint or earnestly attempt to prove that Joltin deposited the
$88,000 he received as an executor’s fee from the estate of his deceased
grandparents into his client trust account with the intent to conceal his assets from
his spouse.
{¶ 33} Of the cases advanced by the parties and the board, we find that
Joltin’s dishonesty and financial misconduct are most analogous to the misconduct
at issue in Coleman. But in addition to misusing his client trust account, failing to
maintain required records regarding his client trust account, and misappropriating
$18,000 in client funds, Joltin also failed to honor a letter of protection issued to a
client’s treating physician for more than two years after distributing settlement
proceeds to his client and neglected another client’s matter. Moreover, he failed to
respond to multiple letters of inquiry sent by relator, provided incomplete answers
in others, and ignored subpoenas compelling his attendance at two separate
depositions. Therefore, we agree with relator’s argument that a greater period of
actual suspension is warranted given Joltin’s additional misconduct, the presence
of serious aggravating factors including a dishonest and selfish motive, multiple
offenses, a pattern of misconduct, and failure to cooperate in the disciplinary
process as well as Joltin’s delays in making restitution, seeking a mentor, and
seeking assistance from OLAP. Contrary to relator’s argument, however, we
believe that a two-year suspension with the second year stayed on the conditions
recommended by the board is commensurate with the severity of Joltin’s
misconduct and will adequately protect the public from future harm.
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{¶ 34} Accordingly, we sustain relator’s objection in part, overrule it in
part, and suspend Benjamin Joltin from the practice of law in Ohio for two years
with the second year stayed on the conditions that he serve a one-year period of
monitored probation in accordance with Gov.Bar R. V(21), complete three hours
of CLE addressing trust-account maintenance in addition to the CLE requirements
of Gov.Bar R. X(13), remain in full compliance with his existing OLAP contract,
follow all treatment recommendations of OLAP and his treating professionals, and
commit no further misconduct. Costs are taxed to Joltin.
Judgment accordingly.
PFEIFER, O’DONNELL, KENNEDY, FRENCH, and O’NEILL, JJ., concur.
LANZINGER, J., dissents, with an opinion joined by O’CONNOR, C.J.
_________________
LANZINGER, J., dissenting.
{¶ 35} I respectfully dissent and would impose an indefinite suspension in
this case. A two-year suspension with one-year stayed is insufficient when the
presumptive sanction is disbarment for misappropriation of client funds. See
Cincinnati Bar Assn. v. Rothermel, 104 Ohio St.3d 413, 2004-Ohio-6559, 819
N.E.2d 1099, ¶ 18.
O’CONNOR, C.J., concurs in the foregoing opinion.
_________________
Scott J. Drexel, Disciplinary Counsel, and Catherine M. Russo, Assistant
Disciplinary Counsel, for relator.
Tracey A. Laslo, for respondent.
_________________
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