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

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Cleveland Bar Association v. Sweeney.
[Cite as Cleveland Bar Assn. v. Sweeney (1995), _____ Ohio St.3d ________.]
Attorneys at law -- Misconduct -- Indefinite suspension with any future
reinstatement conditioned on restitution -- Conviction of felony theft --
Converting funds collected on behalf of clients.

(No. 95-1198 -- Submitted September 13, 1995 -- Decided November 22,
1995.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 94-77.

In a complaint filed on December 5, 1994, relator, Cleveland Bar
Association, charged respondent, John T. Sweeney of Rocky River, Ohio,
Attorney Registration No. 0023564, with eleven counts of professional
misconduct involving violations of, inter alia, DR 1-102(A)(1) (violation of
Disciplinary Rule), 1-102(A)(4) (conduct involving fraud, deceit, dishonesty, or
misrepresentation), 6-101(A)(3) (neglect of an entrusted legal matter), 7-101(A)(2)
(failure to carry out contract for employment), 9-102(B)(1) (failure to promptly
notify client of receipt of client's funds), and 9-102(B)(4) (failure to promptly pay
client funds client is entitled to receive). A panel of the Board of Commissioners

on Grievances and Discipline of the Supreme Court heard the matter on March 30,
1995.

The parties stipulated to most of the facts alleged in the complaint, and
respondent admitted having violated the cited Disciplinary Rules, with the
exception of the DR 7-101(A)(2). The stipulations established that respondent
opened a practice in commercial collections in 1985, two years after his admission
to the Ohio Bar. In 1994, respondent pled guilty to nine counts of felony theft, in
violation of R.C. 2913.02, for having converted funds collected on behalf of
clients. Respondent also converted collected funds for at least ten other clients,
although he is apparently not the subject of criminal prosecutions for these thefts.
The total losses sustained by respondent's clients is somewhere between $28,000
and $45,000.

On June 17, 1994, respondent was sentenced to one and one-half years for
six of the felony counts and to two years for the other three felony counts, with the
sentences to run concurrently. Respondent received credit for time served and,
apparently, with good behavior, was released from incarceration on January 18.
1995. He is currently on parole until March 2, 1996 and is obligated to make
restitution to his clients, for whose benefit the Clients' Security Fund has already

paid at least $28,000 in claims. On September 2, 1994, respondent was suspended
indefinitely from the practice of law pursuant to Gov.Bar R. V(5)(A)(3) (automatic
suspension for felony conviction).

From this evidence, the panel concluded that respondent had violated DR 1-
102(A)(1) and (4); 6-101(A)(3); 7-101(A)(2); and 9-102(B)(1) and (4). In
recommending a sanction for this misconduct, the panel considered that
respondent had operated a thriving practice prior to the events at issue; however,
around 1990, he misjudged the business climate for collections and became
overextended due, in part, to his installation of an unreliable computer system and
the bankruptcy of the company retained to service the system. The panel observed
that respondent, who had no history of substance abuse, had "simply got[ten] in
over his head" and had been unable to repay the funds he was floating from one
creditor to another. The panel also noted that respondent used these funds mainly
to pay his employees' salaries, and not to improve what eventually became his
own meager lifestyle. Finally, the panel considered the testimony and
correspondence of several favorable character witnesses, and it was particularly
impressed with the statements of respondent's ex-wife, from whom he was
divorced in 1991. Sara Sweeney testified that respondent had been a respected,

hard-working, and ethical attorney prior to the financial trouble he experienced
beginning in 1990, and she was confident that he could be so again.

Relator recommended that respondent be permanently disbarred; respondent
recommended an indefinite suspension. After reviewing a number of cases in
which attorneys received indefinite suspensions for conduct similar to
respondent's, the panel recommended that respondent be suspended indefinitely
from the practice of law, with any reinstatement being conditioned upon his
restitution to the Clients' Security Fund. The board adopted the panel's report,
including its findings of fact, conclusions of law and recommendation.

Ulmer & Berne and Kenneth A. Bravo;Dworken & Berstein Co., L.P.A., and
Alec Berezin, for relator.

Charles W. Kettlewell, for respondent.

Per Curiam. Upon review of the record, we concur in the board's findings
of misconduct and its recommendation. Respondent is therefore suspended
indefinitely from the practice of law in Ohio, and his reinstatement is conditioned
upon proof of complete reimbursement to the Clients' Security Fund. Moreover,
we add the further condition that, prior to any application for reinstatement,
respondent shall also make full restitution to those clients whose claims have not

been paid by the Clients' Security Fund, with interest at the legal judgment rate.
Costs taxed to respondent.

Judgment
accordingly.

MOYER, C.J., DOUGLAS, WRIGHT, RESNICK, F.E. SWEENEY, PFEIFER and
COOK, JJ., CONCUR.