Cleveland Metro. Bar Assn. v. Gay (Slip Opinion) , 153 Ohio St. 3d 251 ( 2018 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Cleveland Metro. Bar Assn. v. Gay, Slip Opinion No. 2018-Ohio-2170.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2018-OHIO-2170
CLEVELAND METROPOLITAN BAR ASSOCIATION v. GAY.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Cleveland Metro. Bar Assn. v. Gay, Slip Opinion No.
2018-Ohio-2170.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct,
including failing to properly safeguard client funds in a client trust
account—Conditionally stayed one-year suspension.
(No. 2017-1413—Submitted November 21, 2017—Decided June 7, 2018.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2017-003.
________________
Per Curiam.
{¶ 1} Respondent, James Arthur Gay, of Cleveland, Ohio, Attorney
Registration No. 0025646, was admitted to the practice of law in Ohio in 1979. We
indefinitely suspended him from the practice of law in 1994 for misappropriating
funds from and failing to file an inventory of his father’s probate estate, accepting
SUPREME COURT OF OHIO
fees from clients without performing the contracted work, and failing to cooperate
in the ensuing disciplinary investigation. Cleveland Bar Assn. v. Gay, 68 Ohio
St.3d 190, 625 N.E.2d 593 (1994). We reinstated his license to practice law on
February 27, 2002. Cleveland Bar Assn. v. Gay, 94 Ohio St. 3d 404, 763 N.E.2d
585 (2002).
{¶ 2} In a four-count complaint filed in February 2017, relator, Cleveland
Metropolitan Bar Association, alleged that Gay violated the Rules of Professional
Conduct by mismanaging his Interest on Lawyers’ Trust Account (“IOLTA”) on
several occasions and by making a personal loan to a client.
{¶ 3} Based on the parties’ stipulations, a panel of the Board of Professional
Conduct found by clear and convincing evidence that Gay committed the charged
rule violations and recommended that he be suspended from the practice of law for
one year, fully stayed on conditions. The board adopted the panel’s report and
further recommends that the costs of the proceedings be assessed to Gay. We adopt
the board’s report in its entirety and suspend Gay from the practice of law for one
year, fully stayed on conditions.
Misconduct
Count I—IOLTA Overdraft
{¶ 4} On July 21, 2015, Gay disbursed settlement proceeds to two of his
clients, Carmen Graham and Breonna Crawford, from his IOLTA. He also
disbursed $5,747.56 in settlement proceeds to pay his fees and to reimburse himself
for expenses he had advanced to his clients. On July 28, 2015, Gay directly
withdrew $5,747.56 from his IOLTA for the same fees and expenses, causing a
negative balance in the account. The next day, he became aware of the overdraft
and returned the funds he had mistakenly withdrawn. In response to a letter of
inquiry from relator, Gay acknowledged that he had mistakenly paid himself twice.
The parties agreed, and the board found by clear and convincing evidence, that
2
January Term, 2018
Gay’s conduct violated Prof.Cond.R. 1.15(a) (requiring client funds to be properly
safeguarded in a client trust account).
Count II—Failure to Properly Manage IOLTA
{¶ 5} Gay admits that he did not maintain separate ledger sheets for his
clients. He also admits that he did not consistently maintain, and have his clients
sign, disbursement sheets and closing statements. The parties agreed and the board
found that Gay’s conduct violated Prof.Cond.R. 1.5(c)(2) (requiring a lawyer to
furnish closing statements that are signed by both the client and the lawyer in
contingent-fee cases), 1.15(a)(2) (requiring a lawyer to maintain a record for each
client setting forth the date, amount, payee, and purpose of each disbursement made
on behalf of each client), 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).
Count III—Making a Personal Loan to a Client
{¶ 6} Gay admits that he made a personal loan of $300 to a client, Carmen
Graham, and repaid himself from the settlement proceeds of Graham’s personal-
injury claim. The parties agreed and the board found that Gay’s conduct violated
Prof.Cond.R. 1.8(e) (prohibiting a lawyer from providing financial assistance to a
client in connection with pending or contemplated litigation).
Count IV—Failure to Properly Manage IOLTA
{¶ 7} Gay admits that prior to depositing the settlement proceeds of clients
Vanessa Cannon and Layvonne Washington in two separate cases, he withdrew
funds from his IOLTA to pay himself for the work he did in those cases. The parties
agreed and the board found that Gay’s conduct violated Prof.Cond.R. 1.15(a).
{¶ 8} We agree with the board’s findings of misconduct.
Sanction
{¶ 9} When imposing sanctions for attorney misconduct, we consider
several relevant factors, including the ethical duties that the lawyer violated, the
3
SUPREME COURT OF OHIO
aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions
imposed in similar cases.
{¶ 10} The only aggravating factor found by the board was that Gay has a
prior disciplinary record. See Gov.Bar R. V(13)(B)(1).
{¶ 11} The panel found the following mitigating factors: although alcohol
and depression were involved in Gay’s first disciplinary case, Gay has maintained
his sobriety such that alcohol was not a factor in this case; Gay had been practicing
law for 38 years; Gay did not have a dishonest or selfish motive; Gay’s misconduct
was not intentional but instead was the result of sloppiness and bad recordkeeping;
Gay made a full and free disclosure to relator and has had a cooperative attitude
toward these proceedings; no clients were harmed as a result of Gay’s failure to
deposit settlement checks prior to withdrawing funds or his failure to keep
appropriate IOLTA records; Gay has taken appropriate action, with the assistance
of relator, to educate himself in order to prevent further errors with his IOLTA; Gay
now maintains a general ledger and client ledgers; he understands that he must
deposit settlement funds prior to withdrawing his fees or disbursing funds to clients;
he understands that he must perform monthly reconciliations of his IOLTA; he now
has clients sign disbursement statements; and he understands that he is not
permitted to make loans to clients and has averred that he will not make loans to
clients in the future. See Gov.Bar R. V(13)(A) and (C)(2) through (4).
{¶ 12} The board recommends that we impose a fully stayed one-year
suspension on conditions for Gay’s misconduct. In support of that
recommendation, the board examined cases in which we imposed one- or two-year
suspensions partially or fully stayed on conditions for similar misconduct. See
Toledo Bar Assn. v. Royer, 133 Ohio St. 3d 545, 2012-Ohio-5147, 979 N.E.2d 329
(imposing a one-year suspension, stayed on conditions including a two-year period
of monitored probation, on an attorney for misconduct that was the result of poor
time management and poor recordkeeping; the attorney had no prior disciplinary
4
January Term, 2018
record and did not have a dishonest motive); Akron Bar Assn. v. Tomer, 138 Ohio
St.3d 302, 2013-Ohio-5494, 6 N.E.3d 1133 (imposing a two-year suspension,
stayed on conditions including a two-year period of monitored probation, on an
attorney for mismanagement of her IOLTA and submitting false evidence during
the disciplinary investigation; although the attorney had no prior disciplinary
record, she engaged in dishonesty during the disciplinary investigation);
Disciplinary Counsel v. Thompson, 139 Ohio St. 3d 452, 2014-Ohio-2482, 12
N.E.3d 1203 (imposing a two-year suspension with 18 months stayed on
conditions, including an 18-month period of monitored probation, on an attorney
for mismanaging and failing to maintain appropriate accounting records for his
client trust account; the attorney had one prior instance of discipline for similar
misconduct).
{¶ 13} We agree with the board that Gay’s misconduct is less severe than
the misconduct in any of the cases cited above. Here, it was Gay’s poor
bookkeeping that caused his violations. Upon discovery of his errors, Gay
immediately corrected them and cooperated with relator’s investigation.
{¶ 14} Having independently reviewed the record, we adopt the board’s
findings of fact and misconduct and agree that a one-year suspension, stayed in its
entirety on the conditions recommended by the board, is the appropriate sanction
in this case.
{¶ 15} Accordingly, we suspend James Arthur Gay from the practice of law
for one year, fully stayed on the conditions that he (1) serve a two-year term of
monitored probation that includes oversight of his office management and IOLTA
recordkeeping procedures, (2) complete a minimum of six hours of continuing legal
education, in addition to the requirements of Gov.Bar R. X, in law-practice
management, including at least one hour of IOLTA instruction, and (3) engage in
no further misconduct. If he fails to comply with any condition of the stay, the stay
will be lifted and he will serve the full one-year suspension. Costs are taxed to Gay.
5
SUPREME COURT OF OHIO
Judgment accordingly.
O’CONNOR, C.J., and O’DONNELL, KENNEDY, FRENCH, FISCHER, DEWINE,
JJ., concur.
DEGENARO, J., not participating.
_________________
Heather M. Zirke and Kari L. Burns, Bar Counsel, for relator.
Tyrone E. Reed Co., L.P.A., and Tyrone E. Reed, for respondent.
_________________
6