Disciplinary Counsel v. France - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as Disciplinary Counsel v. France, 93 Ohio St.3d 169, 2001-Ohio-1298]

OFFICE OF DISCIPLINARY COUNSEL v. FRANCE.
[Cite as Disciplinary Counsel v. France (2001), 93 Ohio St.3d 169.]
Attorneys at law -- Misconduct -- Two-year suspension -- Respondent may apply
for reinstatement in the second year in accordance with stated conditions --
Engaging in conduct involving dishonesty, fraud, deceit, or
misrepresentation -- Engaging in conduct adversely reflecting on fitness to
practice law -- Failing to promptly notify client of receipt of funds --
Failing to maintain complete records of all funds received -- Failing to
promptly deliver funds or property to which the client is entitled.
(No. 01-388 -- Submitted April 2, 2001 -- Decided September 5, 2001.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline
of the Supreme Court, No. 00-50.
__________________

Per Curiam. On June 5, 2000, relator, Office of Disciplinary Counsel, filed a
complaint charging respondent, John Stephen France of Toledo, Ohio, Attorney
Registration No. 0014846, with violating five Disciplinary Rules in his representation
of Patricia Weatherholtz. Respondent answered and the matter was referred for
hearing to a panel of the Board of Commissioners on Grievances and Discipline of
the Supreme Court ("board").

The panel found that in 1996, while in the county jail, Patricia Weatherholtz
retained respondent to defend her in a criminal trial for a flat fee of $5,000.
Weatherholtz executed a power of attorney giving respondent the power to cash her
monthly pension checks from Greyhound and her monthly Social Security checks.
The power of attorney was not signed by Weatherholtz in respondent's presence, but
was sent to respondent who later notarized it. Under their agreement, after
Weatherholtz was sentenced to a prison term respondent was to use the power of
attorney to cash her checks depositing the pension fund money in his operating fund

SUPREME COURT OF OHIO
as payment toward his fee and placing the money from the Social Security check in
his client trust fund account. Respondent agreed to send some of the Social Security
money to Weatherholtz and to her grandson, who was also in prison.

In April 1998, respondent received a letter from the Social Security
Administration ("SSA") stating that because Weatherholtz was in prison she would
receive no more social security checks and would be required to pay back the monies
she had received while incarcerated. Respondent did not inform Weatherholtz of this
letter or her responsibility to repay the money to the SSA. Nor did he respond on
Weatherholtz's behalf to the SSA. After April 1998 respondent stopped sending
money to Weatherholtz.

When she was about to be released from prison, Weatherholtz made several
unsuccessful attempts to contact respondent. When she finally did reach him,
respondent informed her that the money in her accounts was almost gone and that she
was responsible for making up the overpayment to the SSA. From a document that
respondent sent to her in May 1998, Weatherholtz discovered that respondent had
charged her account for items that she had not approved or received, including
charges for a television set, and for food baskets that were not sent to her grandson.
Respondent also charged Weatherholtz for a trip to Florida by an employee of
respondent to pick up her belongings, which trip was never made. Respondent did
not provide Weatherholtz with any receipts for the expenses he incurred, and he was
unable to provide the panel with an accurate account of the disbursements he made on
Weatherholtz's behalf or the amount remaining in her bank account. He admitted to
the panel that because of his inadequate records he had overcharged Weatherholtz.

The panel concluded that respondent's conduct violated DR 1-102(A)(4) (a
lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or
misrepresentation), 1-102(A)(6) (a lawyer shall not engage in conduct adversely
reflecting on the lawyer's fitness to practice law), 9-102(B)(1) (a lawyer shall
promptly notify a client of the receipt of funds), 9-102(B)(3) (a lawyer shall maintain
complete records of all funds coming into the lawyer's possession), and 9-102(B)(4)
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January Term, 2001
(a lawyer shall promptly deliver to the client funds or property to which the client is
entitled).

The panel found in mitigation that respondent took full responsibility for his
actions, admitting that his recordkeeping was deficient, that he was grossly negligent
in handling the Weatherholtz accounts in his office, that there was a breakdown in
office procedures after December 1997, and that he overcharged his client.

The panel recommended that respondent be suspended from the practice of
law for two years, with reinstatement and probation for the second year on the
following conditions: (1) that he supply to relator all documents and evidence in his
possession or control relating to his representation of Weatherholtz for audit by a
CPA chosen by relator to determine the amount of restitution to be made to her, (2)
that respondent pay restitution as determined by relator to Weatherholtz, and (3) that
respondent complete six hours of continuing legal education on law office
management and accounting procedures. The panel further requested that the
Secretary of the Board notify the Notary Commission about respondent's violation of
the notary laws.

The board adopted the findings, conclusions, and recommendations of the
panel.

On review of the record, we adopt the findings, conclusions, and
recommendation of the board.

Respondent is hereby suspended from the practice of law for two years, but
may apply for reinstatement after one year under Gov.Bar R. V(10). To be eligible
for reinstatement, respondent must show that he has (1) supplied to relator all
documents and evidence in his possession or control relating to his representation of
Weatherholtz for audit by a CPA chosen by relator to determine the amount of
restitution to be made to her, (2) paid the restitution as determined by relator, and (3)
completed six hours of continuing legal education on law office management and
accounting procedures. If this court grants respondent's application for
reinstatement, this court's order of reinstatement shall include a one-year term of
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probation subject to conditions this court deems appropriate per Gov.Bar R.
V(10)(E)(4). Violation of any conditions of probation may result in the reinstatement
of any stayed suspension. Gov.Bar R. V(9)(E). The Secretary of the board shall
notify the Notary Commission about respondent's violation of the notary laws. Costs
are taxed to respondent.
Judgment accordingly.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
__________________
Jonathan
E.
Coughlan, Disciplinary Counsel, and Kenneth R. Donchatz,
Assistant Disciplinary Counsel, for relator.

John Stephen France, pro se.
__________________
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