Akron Bar Assn. v. Tomer , 138 Ohio St. 3d 302 ( 2013 )

[Cite as Akron Bar Assn. v. Tomer, 138 Ohio St. 3d 302, 2013-Ohio-5494.]
AKRON BAR ASSOCIATION v. T OMER.
[Cite as Akron Bar Assn. v. Tomer, 138 Ohio St. 3d 302, 2013-Ohio-5494.]
Attorneys—Misconduct—Multiple disciplinary violations—Neglecting to act with
reasonable diligence in representing a client—Client trust account
improprieties—Two-year suspension, stayed on conditions.
(No. 2013-0570—Submitted June 5, 2013—Decided December 19, 2013.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 12-008.
____________________
Per Curiam.
{¶ 1} Respondent, Michele Ann Tomer of Akron, Ohio, Attorney
Registration No. 0059477, was admitted to the practice of law in Ohio in 1992.
{¶ 2} Relator, Akron Bar Association, charged Tomer with professional
misconduct for failing to effectively communicate in two client matters, misusing
her Interest on Lawyers’ Trust Accounts (“IOLTA”) account, and engaging in
dishonest conduct during the disciplinary investigation. The parties entered
stipulations of fact and misconduct and jointly recommended that Tomer serve a
six-month suspension stayed on conditions. A three-member panel of the Board
of Commissioners on Grievances and Discipline accepted the parties’ stipulations
and recommended sanction. The board, however, recommends that we suspend
Tomer for two years, with the entire suspension stayed on the conditions
stipulated by the parties. No objections have been filed.
{¶ 3} Upon our independent review of the record, we accept the board’s
findings of fact and misconduct and agree that the appropriate sanction is a two-
year suspension stayed on conditions as recommended by the board.
SUPREME COURT OF OHIO
Misconduct
{¶ 4} Following law school, Tomer worked for 16 years as an assistant
county prosecutor, mostly in the child-support-enforcement division. In January
2009, she was laid off due to county budget constraints, and she then started her
own law practice concentrating in the areas of domestic relations and juvenile
neglect and dependency. At the panel hearing, Tomer testified that starting a
private law practice was overwhelming and intimidating, and the board noted that
Tomer lacked mentors and supervisory oversight. The following misconduct
ensued.
Count one—the Bonner matter
{¶ 5} Tina Bonner retained Tomer to seek modification of a child-
custody order, but after three months, Tomer had not filed a notice of appearance
or any motions on Bonner’s behalf. Further, Bonner claimed that Tomer failed to
return her phone calls. Tomer also deposited Bonner’s retainer into her business
account rather than in an IOLTA account, failed to secure a signed notice from
Bonner regarding Tomer’s lack of professional liability insurance, and failed to
fully refund Bonner’s retainer until after relator had filed its complaint.
{¶ 6} Based on this conduct, the board found, and we agree, that Tomer
violated Prof.Cond.R. 1.3 (requiring a lawyer to act with reasonable diligence in
representing a client), 1.4(a)(2) (requiring a lawyer to reasonably consult with the
client about the means by which the client’s objectives are to be accomplished),
1.4(c) (requiring a lawyer to obtain a signed acknowledgment from the client that
the attorney does not maintain professional malpractice insurance), and 1.15
(requiring a lawyer to hold property of clients in an interest-bearing client trust
account, separate from the lawyer’s own property, and to promptly deliver funds
that the client is entitled to receive).
2
January Term, 2013
Count two—the Terzic matter
{¶ 7} Kevin Terzic paid Tomer a $1,000 retainer to represent him in a
divorce action, and after competently working on the matter, Tomer determined
that she owed Terzic a $370 refund. However, she sent Terzic’s refund check to
the wrong address. Tomer later promised to reissue the check, but instead she
withdrew the funds from her IOLTA account. She failed to send Terzic the
check. She also failed to secure a signed notice from Terzic regarding her lack of
professional liability insurance. After relator filed its complaint, Tomer fully
refunded Terzic’s money.
{¶ 8} Based on this conduct, the board found, and we agree, that Tomer
violated Prof.Cond.R. 1.4(c) and 1.15. Relator withdrew its other alleged rule
violations in this count, and we hereby dismiss those charges.
Count three—dishonesty in the disciplinary investigation
{¶ 9} Travis Edmonds retained Tomer to represent him in a custody
matter. He later filed a grievance with relator alleging that Tomer had failed to
advance his case. In response to the grievance, Tomer provided relator with two
letters that she claimed she had sent to Edmonds requesting further information
from him. Tomer further told relator that because Edmonds did not reply to her
letters, she discontinued working on his case. But after relator secured metadata
from Tomer’s electronic files, she changed her story and admitted that she had
never sent Edmonds the letters and that she had created and backdated the letters
after receiving a copy of Edmonds’s grievance.
{¶ 10} Based on this conduct, the board found, and we agree, that Tomer
violated Prof.Cond.R. 8.4(c) (prohibiting a lawyer from engaging in conduct
involving dishonesty, fraud, deceit, or misrepresentation) and Gov.Bar R. V(4)(G)
(requiring a lawyer to cooperate with a disciplinary investigation).
3
SUPREME COURT OF OHIO
Count four—IOLTA improprieties
{¶ 11} After relator received notice that Tomer’s IOLTA account had
been overdrawn, relator requested that Tomer produce the bank statements for the
account, which revealed several accounting improprieties. For example, Tomer
had twice attempted to transfer more money out of the account than was deposited
in it. Tomer later explained that she had either mistakenly accounted for funds in
the account or unintentionally moved funds from the IOLTA account rather than
one of her other bank accounts. In addition, the bank statements appeared to
indicate that Tomer had used client funds to cover business or personal expenses.
For example, transfers were made from Tomer’s IOLTA account to a cell-phone
company, a department store, and an electric utility company. Tomer later
explained that the funds used for these transfers were earned working on client
matters but that she had not moved the money to another account before using it.
In the end, the board concluded that Tomer did not improperly divert any
unearned client funds from her IOLTA account. However, Tomer’s accounting of
her client’s money was described as “very basic,” and she agreed to make efforts
to improve her accounting system.
{¶ 12} Based on the condition of Tomer’s IOLTA account, the parties
stipulated, the board found, and we agree, that she violated Prof.Cond.R.
1.15(a)(2) (requiring a lawyer to maintain a record for each client on whose behalf
funds are held) and 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).
Sanction
{¶ 13} When imposing sanctions for attorney misconduct, we consider
several relevant factors, including the ethical duties violated, the actual injury
caused, the existence of any aggravating and mitigating factors listed in BCGD
Proc.Reg. 10(B), and the sanctions imposed in similar cases. Stark Cty. Bar Assn.
v. Buttacavoli, 96 Ohio St. 3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶ 16;
4
January Term, 2013
Disciplinary Counsel v. Broeren, 115 Ohio St. 3d 473, 2007-Ohio-5251, 875
N.E.2d 935, ¶ 21. We have already identified Tomer’s ethical violations.
Consideration of the remaining factors demonstrates that the board’s
recommended sanction is reasonable and appropriate.
Aggravating and mitigating factors
{¶ 14} The board found that two of the nine aggravating factors listed in
BCGD Proc.Reg. 10(B) are present here: (1) multiple offenses and (2)
submission of false evidence, false statements, or other deceptive practices during
the disciplinary process. BCGD Proc.Reg. 10(B)(1)(d) and (f). The board found
that three factors in mitigation are present: (1) absence of a prior disciplinary
record, (2) absence of a dishonest or selfish motive, at least in the provision of
client services, and (3) good character and reputation. BCGD Proc.Reg.
10(B)(2)(a), (b), and (e).
{¶ 15} The panel was particularly persuaded by Tomer’s “exceptionally
strong [m]itigation testimony,” which the panel found “significantly mitigated[d]
the aggravating factors.” For example, the panel noted that Tomer expressed
“persistent and repeated remorse for having falsified the letters,” and the panel
cited the numerous awards and honors that Tomer had received for being a top
young professional in the Akron area and for her dedication to community
service, including a “Rising Star” designation from an Akron area magazine and a
community-service award from the Ohio State Bar Foundation. The panel further
noted that Tomer’s lack of adequate training when entering “the private general
practice of law after sixteen years of exemplary service as an assistant prosecutor
in a narrow practice area” was unfortunate. According to the panel, Tomer’s
“high profile in the Akron area legal community as a young ‘go-getter’ and
enthusiastic volunteer, created additional feelings of stress and lack of confidence
in seeking the substantial help she greatly needed in managing both the legal and
business aspects of her practice.” Despite her rough start to the private practice of
5
SUPREME COURT OF OHIO
law, the panel expressed its “firm belief” that Tomer “will become a very
competent and well-respected practitioner with the necessary imposition of the
conditions delineated.”
{¶ 16} We accept the panel’s conclusions about the sincerity of Tomer’s
mitigation testimony. “Unless the record weighs heavily against a hearing panel’s
findings, we defer to the panel’s credibility determinations, inasmuch as the panel
members saw and heard the witnesses firsthand.” Cuyahoga Cty. Bar Assn. v.
Wise, 108 Ohio St. 3d 164, 2006-Ohio-550, 842 N.E.2d 35, ¶ 24.
Applicable precedent
{¶ 17} “A violation of Prof.Cond.R. 8.4(c) will typically result in an
actual suspension from the practice of law unless ‘significant mitigating factors
that warrant a departure’ from that principle are present.” Disciplinary Counsel v.
Potter, 126 Ohio St. 3d 50, 2010-Ohio-2521, 930 N.E.2d 307, ¶ 10, quoting
Disciplinary Counsel v. Rohrer, 124 Ohio St. 3d 65, 2009-Ohio-5930, 919 N.E.2d
180, ¶ 45. We agree with the board that this case is one in which significant
mitigating factors are present. Tomer has no prior disciplinary record, has
demonstrated excellent character and reputation, has shown significant remorse
for her actions, and except for falsifying the letters, has completely cooperated in
the disciplinary process. Even relator described her falsification of the letters as a
“solitary bad decision.” Therefore, because of the significant mitigating factors,
an actual suspension is not warranted.
{¶ 18} However, we disagree with the parties and the panel—and agree
with the board—regarding the length of the stayed suspension. The parties and
panel rely on Akron Bar Assn. v. DeLoach, 130 Ohio St. 3d 153, 2011-Ohio-4201,
956 N.E.2d 811, in which we issued a stayed six-month suspension to an attorney
who, like Tomer, violated Prof.Cond.R. 8.4(c) by recreating client letters as part
of her response to a disciplinary grievance. But Tomer not only engaged in
dishonesty, she also committed other professional misconduct, resulting mostly
6
January Term, 2013
from serious operational deficiencies in her new practice. Accordingly, a longer
stayed suspension—to mirror her monitored probation—is warranted here.
Conclusion
{¶ 19} Having reviewed the record and the aggravating and mitigating
factors, and having considered the sanctions previously imposed for comparable
conduct, we adopt the board’s recommended sanction of a stayed two-year
suspension with conditions that aim to improve the organization and
recordkeeping of Tomer’s law practice. Accordingly, Michele Ann Tomer is
hereby suspended from the practice of law in Ohio for two years, with the entire
suspension stayed on the conditions that she (1) serve a two-year period of
monitored probation in accordance with Gov.Bar R. V(9)(B), (2) complete 12
hours of continuing legal education (“CLE”) in law-office management, including
law-office accounting, office organization, and time and task management, within
the first year of her suspension, in addition to the CLE requirements of Gov.Bar
R. X, and (3) commit no further misconduct. If Tomer fails to comply with the
conditions of the stay, the stay will be lifted and she will serve the full two-year
suspension. Costs are taxed to Tomer.
Judgment accordingly.
PFEIFER, O’DONNELL, LANZINGER, KENNEDY, FRENCH, and O’NEILL, JJ.,
concur.
O’CONNOR, C.J., not participating.
____________________
Joseph S. Kodish and Thomas R. Houlihan, for relator.
Buckingham, Doolittle & Burroughs, L.L.P., and Peter T. Cahoon, for
respondent.
________________________
7