Opinion
D.D. No. 85-21
Decided March 12, 1986.
Attorneys at law — Misconduct — Permanent disbarment — Commingling and conversion of clients' funds — Prior indefinite suspension.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Bar.
Relator, Columbus Bar Association, brought this disciplinary action against respondent, Robert L. Cohodes, alleging three counts of misconduct in its complaint.
Count I of the complaint charged a violation of DR 9-102(A) in that respondent commingled funds by depositing client funds into his office account.
Count II of the complaint charged violations of DR 1-102(A)(1), (3), (4) and (6) and 9-102(A), in that respondent used client funds for personal or business needs, thereby violating a Disciplinary Rule; engaged in illegal conduct involving moral turpitude; and engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, and in conduct that adversely reflects on his fitness to practice law.
Count III of the complaint alleged that respondent had been previously disciplined for essentially similar conduct based upon a complaint filed on September 17, 1982, which resulted in the imposition of an indefinite suspension from the practice of law on January 25, 1984. See Columbus Bar Assn. v. Cohodes (1984), 9 Ohio St.3d 83. Because the respondent had notice of a pending complaint concerning issues of commingling and use of client funds for business and personal use prior to the receipt and misapplication of client funds in the instant case, relator claimed that the instant conduct constituted a separate breach of the Disciplinary Rules.
On December 17, 1984, a hearing was held before a panel of the Board of Commissioners on Grievances and Discipline of the Bar. The parties stipulated to the following facts.
Respondent represented a group of heirs of the late Clarence Jackson in a petition to determine Jackson's heirs at law. Pursuant to a judgment entered by the probate court in favor of respondent's clients, the administrator of the Jackson estate issued separate checks for each of respondent's six clients, totalling $2,846.05. Upon receipt of these checks, respondent caused his name to be added to the checks as payee. The checks were endorsed on behalf of each of the payees by Harlan T. Randolph using a power of attorney, and then by respondent. The checks were deposited into respondent's office account on February 22, 1983.
The respondent then prepared checks for distribution to his clients, and the checks so prepared totalled $1,975.26. Thus, respondent retained in his office account a portion of the funds received from the administrator as "attorney fees" and "expenses."
Because of a dispute concerning each heir's share of the estate proceeds, the checks were returned to respondent for recomputation. From February 22, 1983, until the funds were finally distributed, these funds were on deposit in respondent's office account. Subsequent withdrawals by respondent reduced the account's balance below the $1,975.26 distributable to respondent's clients. For example, the March 31, 1983 account balance was $826.02, while the April 29, 1983 balance was $1,409.93. The monies withdrawn by respondent were used for his personal and business expenses.
Respondent was charged with essentially similar conduct in a complaint filed by relator on August 26, 1982. This court found that respondent used estate money for his own personal use on March 9, 1981, and again on September 25, 1981. See Cohodes, supra, at 83. The current incident of commingling occurred on February 22, 1983. Respondent had received notice from relator that the first incidents of commingling had given rise to a formal complaint by virtue of the filing of that complaint on September 17, 1982. This notice occurred approximately five months before the commingling incident currently before this court.
In each instance of commingling, the respondent made restitution and no client suffered a financial loss.
The medical, psychological and psychiatric testimony entered in the earlier case was admitted into evidence before the board. In the earlier case, respondent conceded he was suffering from emotional distress, but not from a mental illness as defined in R.C. 5122.01(A). See Cohodes, supra, at 83.
The board concluded from the foregoing that respondent violated DR 9-102(A) by depositing client funds into his own business account and using those funds for his personal and business purposes. The board found that respondent violated DR 1-102(A)(3) by engaging in illegal conduct involving moral turpitude, and DR 1-102(A)(4) by engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. The board further concluded that respondent engaged in conduct that adversely reflects on his fitness to practice law, thereby violating DR 1-102(A)(6). Finally, the board found that respondent violated DR 1-102(A)(1) in that respondent violated a Disciplinary Rule.
The board recommended permanent disbarment.
Jones, Day, Reavis Pogue, John W. Zeiger, Brownfield, Bally Goodman and James W. Lewis, for relator.
Lewis W. Dye, for respondent.
After a thorough examination of the record in this cause, this court concurs with the findings and conclusions of the board that respondent's conduct constituted violations of DR 1-102(A)(1), (3), (4) and (6) and DR 9-102(A) of the Code of Professional Responsibility.
It is therefore the judgment of this court that respondent be permanently disbarred from the practice of law.
Judgment accordingly.
CELEBREZZE, C.J., SWEENEY, LOCHER, HOLMES, C. BROWN, DOUGLAS and WRIGHT, JJ., concur.