Columbus Bar Association v. Pugh - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
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Columbus Bar Assn. v. Pugh.
[Cite as Columbus Bar Association v. Pugh (1994), Ohio
St.3d .]
Attorneys at law -- Misconduct -- Two-year suspension with
final six months suspended on monitored probation with
conditions -- Failing to maintain trust funds in a
separate bank account -- Illegal conduct involving moral
turpitude -- Conduct involving dishonesty, fraud, deceit
or misrepresentation -- Conduct prejudicial to the
administration of justice -- Conduct adversely reflecting
on fitness to practice law -- Failing to maintain proper
records of a client.
(No. 93-1715 -- Submitted November 9, 1993 -- Decided
January 26, 1994.)
On Certified Report by the Board of Commissioners on
Grievances and Discipline of the Supreme Court, No. 92-39.
In a complaint filed on June 22, 1992, relator, Columbus
Bar Association, charged respondent, Terry P. Pugh of Dublin,
Ohio, Attorney Registration No. 0022942, with three counts of
misconduct alleging numerous violations of the Code of
Professional Responsibility. In his answer, respondent
admitted certain factual allegations contained in the third
count but denied that he had committed any of the disciplinary
infractions set forth in that count. Respondent essentially
denied the allegations contained in the other two counts and
any disciplinary infractions relating thereto. Thereafter, a
panel of the Board of Commissioners on Grievances and
Discipline of the Supreme Court ("board") held a hearing on the
matter on April 23, 1993. Respondent had previously received a
public reprimand on June 19, 1985 for violating DR 6-101(A)(3)
(neglecting legal matters entrusted to him). Columbus Bar
Assn. v. Pugh, D.D. No. 85-14, 18 Ohio Official Reports Advance
Sheets, No. 1 (June 24, 1985), at A-4.
At the beginning of the hearing, respondent stipulated to
each of the alleged violations of the complaint. As to the
first count, it was admitted that respondent had no
professional banking account other than an IOLTA Trust Account
with Fifth Third Bank. Respondent routinely used his trust

account as a depository for both legal fees and trust funds,
and paid office operating expenses and personal expenses with
checks drawn upon his trust account. The panel concluded that
he had violated DR 9-102(A) (failing to maintain trust funds in
a separate bank account).
As to the second count, it was stipulated that in
September 1991, National Disposal Company ("NADCO") was
experiencing financial difficulties, and its bank accounts were
subject to attachment by creditors. Respondent, who had been
in-house counsel for NADCO, used his trust account during
September through November 1991 to secretly deposit NADCO funds
and to make payments on behalf of NADCO for its payroll and
office expenses and for its officers' personal expenses. The
panel concluded that respondent had violated DR 1-102(A)(3)
(illegal conduct involving moral turpitude), 1-102(A)(4)
(conduct involving dishonesty, fraud, deceit or
misrepresentation), 1-102(A)(5) (conduct prejudicial to the
administration of justice), and 1-102(A)(6) (conduct adversely
reflecting on fitness to practice law).
As to the third count, it was admitted that in September
or October 1991, respondent represented Classic Granite &
Marble, Inc. ("Classic") in a civil dispute with Everett
Express, Inc. ("Everett") in which Everett had secured a
judgment against Classic in the Franklin County Common Pleas
Court. On October 14, 1991, respondent delivered a trust
account check made payable to Everett's counsel as "trustee"
for Everett in the sum of $12,060 to settle the dispute.
Everett's counsel deposited the check in his trust account and
was subsequently notified that the check had been dishonored
because of insufficient funds. Respondent knew or should have
known that there were insufficient funds in his trust account
to cover his check. On October 22, 1991, respondent returned
trust funds to Classic in the amount of $11,000. The panel
concluded that respondent had violated DR 1-102(A)(3), (4),
(5), and (6), as well as DR 9-102(B)(3) (failing to maintain
proper records of a client coming into attorney's possession).
Although admitting that he had committed the disciplinary
violations, respondent offered evidence in mitigation.
Respondent claimed that he had been an alcoholic for twenty
years. In March 1990, he completed an inpatient program at
Brighton Hospital in Michigan and was advised to attend
Alcoholics Anonymous meetings. Respondent claimed that he
suffered a relapse about thirteen months after his discharge.
On the advice of his attorney, respondent entered relator's
Lawyers Assistance Program about three weeks prior to the
hearing to help his alcohol problem. Respondent blamed the
disciplinary violations on his alcoholism, financial
difficulties, and his clients. Respondent requested that any
suspension be suspended and that he be placed on probation,
with a requirement that he participate in the Lawyers
Assistance Program. Respondent also contended that restitution
to Everett was not warranted because of a release from judgment
filed by Everett. Respondent testified that he would make
restitution if ordered to do so. Relator noted that the
satisfaction of judgment occurred as a result of a clerical
error.
The panel determined that respondent's conduct was not the

product of his alcoholism since he had engaged in intentionally
deceitful misconduct which required conscious effort. The
panel was also not convinced of respondent's sincerity to
effectively deal with his alcoholism. The panel recommended
that respondent be suspended from the practice of law in Ohio
for two years. However, the panel recommended that the final
six months of that suspension be suspended with respondent
placed on probation to be monitored by relator. As conditions
of the suspension and probation, the panel recommended that
respondent, during suspension and probation, attend Alcoholics
Anonymous and/or the Lawyers Assistance Program as appropriate,
submit to random alcohol testing, and maintain his continuing
legal education requirements. The board adopted the findings
of fact, conclusions of law, and the recommendation of the
panel (except as to the CLE requirement), and further
recommended that costs be taxed to respondent.

Jones, Day, Reavis & Pogue and Jeffrey A. Lipps; Gibson &
Robbins-Penniman and Gus Robbins-Penniman; and Bruce A.
Campbell, for relator.
James H. Banks for respondent.

Per Curiam. We agree with the board's findings and
recommendation as modified. Accordingly, we suspend respondent
from the practice of law in Ohio for two years; however, the
final six months of that suspension are suspended and
respondent is to be placed on monitored probation under the
following conditions effective during suspension and
probation: that respondent attend Alcoholics Anonymous and/or
the Lawyers Assistance Program as appropriate, on a regular
basis, with compliance to be verified by relator; that he
submit to random alcohol testing to be monitored by relator;
and that he maintain the necessary continuing legal education
requirements. Costs taxed to respondent.
Judgment accordingly.
A.W. Sweeney, Acting C.J., Bryant, Douglas, Wright,
Resnick, F.E. Sweeney and Pfeifer, JJ., concur.
Peggy Bryant, J., of the Tenth Appellate District, sitting
for Moyer, C.J.