Disciplinary Counsel v. Maguire , 131 Ohio St. 3d 412 ( 2012 )

[Cite as Disciplinary Counsel v. Maguire, 131 Ohio St.3d 412, 2012-Ohio-1298.]
DISCIPLINARY COUNSEL v. MAGUIRE.
[Cite as Disciplinary Counsel v. Maguire,
131 Ohio St.3d 412, 2012-Ohio-1298.]
Attorneys—Misconduct—Trust-account rule violations and failure to cooperate in
the disciplinary investigation—One-year license suspension.
(No. 2011-1739—Submitted December 7, 2011—Decided March 29, 2012.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 11-058.
__________________
Per Curiam.
{¶ 1} Respondent, Peggy Maguire of Lewis Center, Ohio, Attorney
Registration No. 0071966, was admitted to the Ohio bar in 2000.
{¶ 2} On June 24, 2010, JPMorgan Chase Bank sent notice to relator,
disciplinary counsel, that Maguire’s client trust account was overdrawn.
JPMorgan sent relator notices of two additional overdrafts on August 5, 2010.
{¶ 3} Relator sent a letter of inquiry to Maguire on July 26, 2010,
regarding the first overdraft. Maguire did not respond to this letter. On August
19, 2010, relator sent another letter to Maguire regarding all three overdrafts.
{¶ 4} Maguire responded with a letter dated September 2, 2010, in which
she maintained that the money in her client trust account was “not client money,
but [her] own.” According to Maguire, over the past few months, she had been
working primarily as a nurse and was not taking on new clients. Maguire
explained that she had kept the trust account open and had deposited her nursing
checks into the account in case she decided to resume her law practice. Her letter
also stated that she had paid off the overdrafts using her nursing money and had
closed the account.
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{¶ 5} On September 7, 2010, relator sent letters requesting additional
information from Maguire regarding the overdrafts and her use of the client trust
account, noting that Maguire had paid personal bills from the account.
{¶ 6} Relator sent another letter to Maguire on October 7, 2010, again
requesting additional information. Maguire replied by letter on November 2,
2010, informing relator that she had changed her law license status to inactive,
had no plans to return to the practice of law, and would not be reopening her
client trust account. Maguire did not, however, address the overdrafts or her
management of the trust account.
{¶ 7} On November 9, 2010, relator subpoenaed Maguire for a
deposition to be held on November 29, 2010. Maguire did not appear. On the
day of the scheduled deposition, relator sent Maguire another letter requesting that
she contact relator immediately. Maguire failed to answer the letter. A similar
letter was sent to Maguire on December 22, 2010, but that letter also went
unanswered.
{¶ 8} On February 23 and March 22, 2011, relator sent letters advising
Maguire that it was terminating its disciplinary investigation and filing a formal
complaint against her. On May 3, 2011, relator sent Maguire a copy of a drafted
complaint and a notice of intent to file it. Maguire did not respond to any of these
notices.
{¶ 9} On June 13, 2011, relator filed a complaint with the Board of
Commissioners on Grievances and Discipline charging Maguire with professional
misconduct. The charged misconduct arose from her alleged misuse of her client
trust account and failure to cooperate in the disciplinary investigation.
{¶ 10} The board sent notice of relator’s complaint to Maguire and
requested her written answer within 20 days of June 16, 2011. The board,
however, was unable to serve Maguire at her residence, the only address listed
with the Office of Attorney Registration. The board thereafter perfected service
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on June 24, 2011, through the clerk of the Supreme Court pursuant to Gov.Bar R.
V(11)(B) (clerk is agent for attorney who conceals his or her whereabouts).
{¶ 11} Maguire did not file an answer to the complaint. On August 25,
2011, relator filed a motion for default judgment pursuant to Gov.Bar R. V(6)(F).
In support of its motion for default, relator submitted affidavits of the assistant
disciplinary counsel charged with investigating Maguire’s alleged misconduct and
the staff investigator who assisted in the investigation. The default-judgment
motion also contained the affidavit of Aaron Ziraks, an employee of ATC
Healthcare, the company that employed Maguire as a nurse for four months in
2010. Also submitted were letters from Maguire to relator acknowledging that
she was aware of the bank records from JPMorgan Chase and the disciplinary
investigation.
{¶ 12} A master commissioner appointed by the board granted relator’s
motion for default judgment, making findings of fact and conclusions of law that
Maguire had engaged in misconduct and recommending that she be suspended
from the practice of law for one year. The board adopted the master
commissioner’s findings of fact, conclusions of law, and recommendation.
{¶ 13} We adopt the board’s findings of fact and conclusions of law and
its recommendation of a one-year suspension.
Misconduct
Misuse of Client Trust Account
{¶ 14} Maguire, a sole practitioner, maintained a client trust account at
JPMorgan Chase Bank. Maguire was also employed as a nurse with ATC
Healthcare from May 2010 until August 23, 2010. During this time, Maguire
deposited several nursing paychecks from ATC Healthcare into her client trust
account. Maguire deposited client checks into her client trust account during this
same time. Also during this time, Maguire used the money in her client trust
account to pay personal expenses. Finally, bank records show that Maguire had
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overdrawn her client trust account three times: on June 22, July 6, and August 3,
2010.
{¶ 15} A lawyer is required to hold property of clients in an interest-
bearing account separate from the lawyer’s own property. Prof.Cond.R. 1.15(a)
(a client trust account shall contain only funds belonging to clients). Maguire
deposited nursing paychecks from ATC Healthcare into her client trust account,
commingling her own funds with those of her clients. Therefore, we agree with
the board that she violated Prof.Cond.R. 1.15(a). Maguire also deposited money
she earned as a nurse into the account and used that money to pay personal
expenses. Accordingly, we agree with the board that in doing so, Maguire
violated Prof.Cond.R. 1.15(b) (allowing a lawyer to deposit personal funds into a
trust account only to pay or waive bank charges on the account). The board also
found that Maguire had engaged in conduct that adversely reflects on the lawyer’s
fitness to practice law. Prof.Cond.R. 8.4(h). We agree. Maguire overdrew the
trust account on June 22, 2010, and the account continued to be overdrawn until
she closed it. This and the other evidence cited above demonstrate that Maguire
used her client trust account for purposes other than safekeeping client-entrusted
funds.
Failure to Cooperate in Disciplinary Investigation
{¶ 16} After receiving notice that Maguire had overdrawn her client trust
account, relator sent her a total of seven letters inquiring about the overdrafts and
her use of the trust account. Maguire failed to respond to five of the letters, and
offered only partial responses to the other two. Relator also subpoenaed Maguire
to attend a deposition, but Maguire failed to appear.
{¶ 17} Because Maguire repeatedly ignored investigative inquiries, we
agree with the board that she violated Gov.Bar R. V(4)(G) (requiring lawyers to
cooperate in an investigation of professional misconduct).
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Sanction
{¶ 18} In recommending a sanction, the board considered the aggravating
and mitigating factors listed in BCGD Proc.Reg 10. The board found no
aggravating factors. In mitigation, the board found only that Maguire had no
prior disciplinary record. See BCGD Proc.Reg. 10(B)(2)(a).
{¶ 19} The board recommended that Maguire be suspended from the
practice of law for one year.
{¶ 20} Having reviewed the record, we agree that a one-year suspension is
the appropriate sanction in this case. The record reflects that Maguire used her
client trust account as a personal bank account, conducting financial transactions
through it that were unrelated to the practice of law. Maguire deposited personal
funds into her client trust account, commingled client and personal funds, paid
personal expenses out of the account, and caused overdrafts to the account. In
recent cases involving misuse of client trust accounts, we have issued one-year
stayed suspensions. See Disciplinary Counsel v. Simon, 128 Ohio St.3d 359,
2011-Ohio-627, 944 N.E.2d 660, ¶ 10, and Disciplinary Counsel v. Johnston, 121
Ohio St.3d 403, 2009-Ohio-1432, 904 N.E.2d 892, ¶ 13, 16 (one-year stayed
suspension with monitored probation). Maguire’s misuse of her client trust
account is similar to the misuse of the trust accounts in Simon and Johnston.
Maguire’s failure to cooperate in the disciplinary investigation, however, warrants
a more severe sanction than that imposed in those cases.1
{¶ 21} Accordingly, Peggy Maguire is suspended from the practice of law
in the state of Ohio for a period of one year. Costs are taxed to Maguire.
Judgment accordingly.
1. Attorney Simon was also charged with refusing to cooperate in the investigation when he failed
to provide information to disciplinary counsel in a timely manner. Simon, however, subsequently
provided the information and executed a consent-to-discipline agreement. In contrast, Maguire
never fully cooperated and never admitted wrongdoing.
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O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
__________________
Jonathan E. Coughlan, Disciplinary Counsel, and Heather L. Coglianese,
Assistant Disciplinary Counsel, for relator.
______________________
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