Dayton Bar Assn. v. Truman - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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Dayton Bar Association v. Truman.
[Cite as Dayton Bar Assn. v. Truman ( 1995), _____ Ohio St.3d _____.]
Attorneys at law -- Misconduct -- One-year suspension with six months period of
sanction suspended on condition that no disciplinary complaints against
attorney are certified to Board of Commissioners on Grievances and
Discipline during the one-year period -- Writing unauthorized checks from
client's business account.

(No. 95-1194 -- Submitted July 26, 1995 -- Decided October 25, 1995.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 94-72.

By a complaint filed on October 17, 1994, relator, Dayton Bar Association,
charged respondent, Vance Paul Truman of Beaumont, Texas, Attorney
Registration No. 0061526, with professional misconduct involving, inter alia, DR
1-102(A)(3) (illegal conduct involving moral turpitude), 1-102(A)(4) conduct
involving fraud, deceit, dishonesty, or misrepresentation), and 1-102(A)(6)
(conduct that adversely reflects on fitness to practice law). A panel of the Board
of Commissioners on Grievances and Discipline of the Supreme Court ("board")
heard the matter on March 3, 1995.

The parties admitted the facts underlying the charged misconduct and
stipulated to respondent's having violated the cited Disciplinary Rules. The
record before the panel established that, in December 1990 and prior to
respondent's November 1993 admission to the Ohio Bar, Sheilds Bar-B-Que, a
Dayton restaurant, engaged respondent as an accounting consultant for its
business. The owners of Sheilds Bar-B-Que, the Sheildses, had been in business
for twenty-four years, but needed help organizing the financial aspects of their
restaurant operation. Respondent, who has an undergraduate degree in accounting
and a Master of Business Administration, reviewed various financial records and
suggested several accounting systems and procedures, most of which the Shieldses
refused to follow consistently. Beginning in January 1992, respondent noticed
that the Shieldses were failing to make bank deposits and to otherwise account for
revenue generated by their restaurant. By July 1992, the Sheildses had completely
abandoned record keeping, causing respondent to take complete control of the
restaurant's financial books.

Beginning in July 1992 and continuing through February 1994, including
the period after his bar admission, respondent wrote himself checks for at least
$16,865 in addition to the compensation he and the Sheildses had agreed upon for

his services. Respondent admitted that, while he believed he devoted time and
effort to Sheilds Bar-B-Que beyond what his level of compensation required, he
was not entitled to the additional funds he paid himself. Respondent also had no
explanation for his conduct -- he was otherwise employed and not in financial
trouble during the period in question. Moreover, respondent denies having had
substance abuse or gambling problems.

In February 1994, the Internal Revenue Service seized the Sheildses' assets
to recover approximately $50,000 in delinquent taxes. Respondent realized that
his conduct would likely be discovered as a result, and, after consulting counsel in
March 1994, he disclosed his unauthorized payments to relator.

At the time of the panel hearing, respondent had made restitution to the
Sheildses in the amount of $17,865, paying an additional $1,000 to account for a
discrepancy between his records of checks written to himself and losses assessed
by the Montgomery County Prosecuting Attorney's Office. Respondent had also
already completed a diversion program sponsored by the Montgomery County
Prosecutor's Office, and he therefore does not expect to be the subject of a
criminal prosecution. On his own initiative, respondent stopped practicing law in
July 1994.

Based on the foregoing, the panel determined that respondent had violated
DR 1-102(A)(3), (4), and (6). In recommending a sanction for this misconduct,
the panel considered the testimony of four character witnesses, each of whom
attested to respondent's integrity apart from the events at issue and that his
misconduct represented a dramatic departure from his lifestyle and values. The
panel also considered that (1) respondent's misconduct did not occur in an
attorney-client relationship, (2) he had made full restitution, (3) he cooperated
completely with relator's investigation, and (4) he expressed genuine remorse for
his misconduct.

The panel recommended that respondent be suspended from the practice of
law in Ohio for a period of one year, but that six months of this sanction be
suspended, apparently on the condition that he commit no further misconduct
within that year. The board adopted the panel's report, including its findings of
fact, conclusions of law, and recommendation.
______________

Mark R. Chilson, for relator.

David C. Greer, 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 from
the practice of law in Ohio for one year, but six months of the sanction period are
suspended on the condition that no disciplinary complaints against respondent are
certified to the board by a probable cause panel during the one-year period. Costs
taxed to respondent.

Judgment accordingly.

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

COOK, J., dissents.

COOK, J.., dissenting. I respectfully dissent. Respondent embezzled over
$16,000, and only admitted the conduct upon concluding that he would probably
be caught through the IRS proceedings. Giving consideration to the mitigating
factors recited in the majority decision, I nevertheless believe that anything less
than a full one-year suspension would be an inadequate censure.