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

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[Cite as Disciplinary Counsel v. Poley, 94 Ohio St.3d 425, 2002-Ohio-1237.]

OFFICE OF DISCIPLINARY COUNSEL v. POLEY.
[Cite as Disciplinary Counsel v. Poley (2002), 94 Ohio St.3d 425.]
Attorneys at law -- Misconduct -- Eighteen-month suspension with entire
sanction stayed with condition -- Engaging in conduct adversely
reflecting on fitness to practice law -- Neglect of entrusted legal matters.
(No. 01-1828 -- Submitted December 12, 2001 -- Decided March 6, 2002.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 01-41.
__________________

Per Curiam. In a nine-count complaint filed on April 9, 2001, relator,
Office of Disciplinary Counsel, charged respondent, John D. Poley of Dayton,
Ohio, Attorney Registration No. 0000051, with numerous violations of the Code
of Professional Responsibility. Respondent answered, and the matter was referred
to a panel of the Board of Commissioners on Grievances and Discipline of the
Supreme Court ("board").

Based on stipulations and testimony received at a hearing on August 23,
2001, the panel found with respect to Count I that from January 1, 1997 through
December 31, 1999, respondent maintained a general bank account, a client trust
account, a business account, and a MasterCard account. Respondent deposited
both client funds and personal funds in the general bank account, and from that
account he paid client medical bills, the client portion of case settlements, the bar
association for client referrals, and his own personal bills. In his client trust
account, respondent also maintained both client and personal funds. In December
1997, respondent transferred $10,000 of personal funds from his client trust
account to his business account. On two occasions, he made payments on his
MasterCard account from the client trust account. Respondent also used the

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MasterCard account to pay both client and personal expenses. The panel
concluded that respondent's treatment of these funds and accounts violated DR 1-
102(A)(6) (a lawyer shall not engage in conduct adversely reflecting on the
lawyer's fitness to practice law) and 9-102(A) (a lawyer shall not commingle
funds of a client with personal funds).

The panel found that in several cases respondent received client settlement
funds but failed to pay agreed portions of them to Dayton Physical Medicine until
May 25, 1999, several weeks after a grievance was filed against him. Specifically
in Count II, the panel found that in November 1997, respondent withheld a
portion of settlement funds he received on behalf of Charles Hutton and did not
pay Dayton Physical Medicine until eighteen months after he received the funds
and six weeks after a grievance was filed against him. Considering Count III, the
panel found that respondent withheld and failed until May 25, 1999, to pay over
to that same creditor funds from a settlement he had received on behalf of Glenda
Carlisle in November 1997. Count IV involved respondent's similar treatment of
the withheld portion of April Easterling's settlement funds that he received in
December 1997. The panel found with respect to Count V that respondent
received Shahab Mahallati's settlement funds in February 1998 and failed to pay
the appropriate portion over to Dayton Physical Medicine until May 25, 1999. In
addition, the panel found in Count VI that respondent withheld settlement funds
received on behalf of David Hammond in February 1998 for the purpose of
paying that same creditor but did not pay it in full until May 25, 1999.

The panel found that respondent treated the funds of other clients in a
similar manner. Considering Count VII, the panel found that respondent received
settlement funds due to Salaheddin Mahallati in August 1999 but did not pay the
portion owed to Dayton Physical Medicine until January 2000. It found in Count
VIII that he received settlement funds due to Martha Ruby in June 1998, withheld
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January Term, 2002
the full amount due to Dayton Physical Medicine, and paid that creditor only a
portion of the amount withheld.

Finally, with respect to Count IX, the panel found that respondent received
settlement funds on behalf of Donna Jones in October 1999 and withheld, but
failed to timely pay, amounts due to Dayton Medical Imaging, Radiology
Physicians, Inc., and Dayton Neurological Consultants, Inc. As a result, those
creditors turned over their accounts to a collection agency. After the grievance
was filed, Jones informed relator that those creditors were paid.

The panel concluded that in each of the last eight instances, respondent
violated DR 1-102(A)(6) (a lawyer shall not engage in conduct adversely
reflecting on the lawyer's fitness to practice law) and 6-101(A)(3) (a lawyer shall
not neglect an entrusted legal matter).

In mitigation, the panel found that by the time of hearing all the creditors
of respondent's clients had been paid, that respondent had satisfactorily resolved
his trust account practices, that respondent had no prior disciplinary infractions,
and that he cooperated and expressed remorse. The panel also found that the
incidents that were the subject of the charges occurred when respondent was an
actively drinking alcoholic. Further, the panel noted that approximately twenty
months prior to the hearing, respondent had entered into an advocacy contract
with Ohio Lawyers Assistance Program ("OLAP") and he is actively engaged in a
recovery program.

The panel recommended that respondent receive an eighteen-month
suspension with all eighteen months stayed, conditioned on respondent's
renewing and abiding by his contract with OLAP through October 7, 2003. The
board adopted the findings, conclusions, and recommendation of the board.

Having reviewed the record in this case, we adopt the findings,
conclusions, and recommendation of the panel. Respondent is hereby suspended
from the practice of law in Ohio for eighteen months with the entire eighteen
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months stayed, provided that respondent abides by and renews his contract with
OLAP through October 7, 2003. If respondent fails to abide by his OLAP
contract during this period, the entire eighteen-month suspension shall be
imposed. Costs are taxed to respondent.
Judgment accordingly.

DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER and COOK, JJ., concur.

MOYER, C.J., and LUNDBERG STRATTON, J., dissent.
__________________

MOYER, C.J., dissenting. Respondent's pattern of conduct by which he
deprived clients of the beneficial use of settlement funds entrusted to him does not
warrant an entirely stayed suspension. I would suspend respondent for eighteen
months and stay twelve months of the suspension subject to the same conditions
ordered in the majority opinion.

LUNDBERG STRATTON, J., concurs in the foregoing dissenting opinion.
__________________

Jonathan E. Coughlan, Disciplinary Counsel, and Dianna M. Anelli,
Assistant Disciplinary Counsel, for relator.

Kegler, Brown, Hill & Ritter, Geoffrey Stern and Christopher J. Weber,
for respondent.
__________________
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