Cleveland Bar Assn. v. Sterling - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
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Cleveland Bar Association et al. v. Sterling.
[Cite as Cleveland Bar Assn. v. Sterling (1994),
Ohio St.3d .]
Attorneys at law -- Misconduct -- Two-year suspension with
final eighteen months stayed and attorney placed on
monitored probation with conditions -- Engaging in conduct
involving dishonesty, fraud, deceit or misrepresentation
-- Neglecting an entrusted legal matter -- Failing to
carry out contract of employment -- Failing to deposit
client's funds in identifiable bank account separate from
personal or professional account -- Failing to promptly
satisfy or deliver money owed to client.
(No. 93-2561 -- Submitted January 26, 1994 --
Decided March 30, 1994.)
On Certified Report by the Board of Commissioners on
Grievances and Discipline of the Supreme Court, No. 92-36.
In a complaint filed on June 22, 1992, relators, Cleveland
Bar Association and Cuyahoga County Bar Association, charged
respondent, Howard T. Sterling of Shaker Heights, Ohio,
Attorney Registration No. 0034274, with eleven counts of
disciplinary infractions. The complaint charged respondent
with violation of the following provisions of the Code of
Professional Responsibility: DR 1-102(A)(4) (engaging in
conduct involving dishonesty, fraud, deceit or
misrepresentation); 6-101(A)(3) (neglecting an entrusted legal
matter); 7-101(A)(2) (failing to carry out a contract of
employment); 9-102(A) (failing to deposit funds of a client in
an identifiable bank account separate from his own personal or
professional account); and 9-102(B)(4) (failing to promptly
satisfy or deliver money owed to a client).
Relators further charged that respondent violated Gov.Bar
R. V(5)(a), now V(4)(G) (failing to cooperate with
investigations of ethical complaints) by his initial failure to
assist the Cleveland Bar Association Certified Grievance
Committee in its investigation of his alleged acts of attorney
misconduct.
On April 30 and August 20, 1993, hearings were held before
a panel of the Board of Commissioners on Grievances and

Discipline of the Supreme Court. Respondent stipulated to most
of the factual allegations of the complaint but denied that he
violated any Disciplinary Rule. The panel additionally allowed
testimony and documentary evidence. From the stipulation,
testimony and exhibits, it is evident that from 1984 through
1991, respondent entered into various contracts to provide
legal services for several clients in civil matters and then
neglected to perform promised services and misrepresented what
he had done. Additionally, respondent failed to promptly
refund the retainers to which his clients were entitled due to
respondent's inaction.
In Count I, for example, the complaint alleges that on
March 18, 1988, Calvin Streeter hired respondent to represent
him in an employment discrimination matter against the Hupp
Company. Streeter paid respondent a $750 retainer to be
applied towards a contingent fee. Respondent subsequently
advised Streeter that he had sent a letter to the Hupp Company
indicating his representation of Streeter. Respondent further
advised Streeter that if he failed to achieve results within
ten days, respondent would file suit. Streeter later paid
respondent an additional $900 to represent his friend, Kathy
Smith, in a sex discrimination suit. Respondent made the same
representations concerning a second letter he would send to the
Hupp Company. The Hupp Company failed to respond to
respondent's letters, and respondent gave Streeter several
excuses, e.g., illness and domestic problems, as to why he had
not filed suit in either case. Streeter then contacted another
attorney and was told that the statute of limitations had
expired on both his and Smith's cases before Streeter had hired
respondent. Streeter requested return of the $1,650, but
respondent failed to return the money. As of November 19,
1993, respondent admitted he still owed Streeter $450 and Smith
$800.
In Count VI, it is alleged that Patrick and Mary Barnes
hired respondent to represent their son, Anthony Cordell
Standford, in a child support matter in juvenile court. The
Barneses paid respondent $300 in attorney fees; however,
respondent did not provide any legal services.
Similarly, Count IX alleges that in December 1988,
Fredrick Isaac retained respondent to open an estate for his
deceased mother and to file a medical malpractice action
against Cleveland Clinic. Isaac paid respondent $350 for
attorney fees. Respondent never opened the estate or filed the
malpractice claim, even though he had represented otherwise to
Isaac. As of November 19, 1993, respondent still owed Isaac
$100.
Additionally, Counts V, VII, and VIII allege that
respondent failed to deposit client funds in an identifiable
bank account separate from his personal and professional
funds. In Count V, for example, the complaint states that
Frank and Josephine Watts retained respondent in March 1989 to
handle their uninsured motorist insurance claim. Respondent
settled their claim for $4,000 and the Wattses signed the
necessary releases and endorsed the $4,000 insurance draft.
Respondent informed the Wattses that he would deposit the draft
in his bank account, and when the draft cleared, respondent
would issue them a check for their share of the settlement

proceeds. On July 10, 1989, respondent deposited the $4,000
insurance draft in his bank account, which was not an IOLTA
trust account. On July 11, 1989, a creditor of respondent
attached his bank account in the amount of $3,982.65.
Respondent then told Mr. and Mrs. Watts that the Internal
Revenue Service had frozen his bank account. Respondent paid
part of the money back to the Wattses but, as of November 19,
1993, still owed them $2,268. As of that date, respondent owed
his ex-clients a total of $3,838.
In mitigation, respondent testified that when most of the
events charged in the complaint occurred, he suffered from
alcoholism and experienced domestic problems that ultimately
led to his divorce in 1989. He thought that both his domestic
and alcohol problems were connected with his service as an
intelligence officer in Vietnam. According to respondent, he
had received counseling in the past and had not consumed any
alcohol since 1987. Two judges testified that respondent had
always exhibited professional competence in his representation
of clients before them.
The panel concluded that respondent had committed all of
the charged violations of the Code of Professional
Responsibility. (Relators had withdrawn Count III, which
involved the alleged violation of former Gov.Bar R. V[5][a].)
Relators recommended that respondent be suspended from the
practice of law for two years in Ohio, with eighteen months of
that term suspended, and that respondent be placed on monitored
probation. The panel recommended that respondent be suspended
from the practice of law for one year, with the last six months
suspended upon the following conditions: (1) respondent enter
counseling programs for his alcohol dependence and emotional
problems with an agency or agencies acceptable to relators; and
(2) upon compliance with the first condition, if respondent is
restored to the practice of law within the one-year period of
suspension, his practice for the balance of the suspension be
subject to monitoring by relators.
The board adopted the findings of fact and conclusions of
law of the panel but not the panel's recommendation because of
the number of counts involved and the fact that respondent
still owed money to several clients due to his failure to
perform promised legal work. The board recommended that
respondent be suspended from the practice of law in Ohio for
two years, with eighteen months of the suspension suspended and
respondent placed on probation upon the following conditions:
(1) respondent must enter into counseling programs for his
alcohol dependence and emotional problems with an agency or
agencies acceptable to relators; and (2) respondent must make
complete restitution to his clients or the Clients' Security
Fund during the first twelve months of the eighteen-month
probationary period. The board further recommended that costs
be taxed to respondent.

James T. Flaherty, Michael C. Hennenberg, Scott Rawlings
and Thomas Escovar, for relators.
Darryl E. Pittman, for respondent.

Per Curiam. We concur in the board's findings and
recommendation as modified. Accordingly, we suspend respondent

from the practice of law for two years; however, the final
eighteen months of that suspension are stayed and respondent is
to be placed on monitored probation under the following
conditions effective during suspension and probation: that
respondent enter into counseling programs for his alcohol
dependence and emotional problems with an agency or agencies
acceptable to relators; that he attend such counseling programs
on a regular basis, with compliance to be verified by relators;
and that he make complete restitution to his clients during the
first twelve months of the eighteen-month probationary period.
Costs taxed to respondent.
Judgment accordingly.
A.W. Sweeney, Douglas, Wright, Resnick, F.E. Sweeney and
Pfeifer, JJ., concur.
Moyer, C.J., dissents and would suspend respondent from
the practice of law for eighteen months, but would stay the
suspension and place respondent on probation.