Cincinnati Bar Ass'n v. Rothermel

819 N.E.2d 1099, 104 Ohio St. 3d 413
CourtOhio Supreme Court
DecidedDecember 15, 2004
DocketNo. 2004-1010
StatusPublished
Cited by10 cases

This text of 819 N.E.2d 1099 (Cincinnati Bar Ass'n v. Rothermel) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cincinnati Bar Ass'n v. Rothermel, 819 N.E.2d 1099, 104 Ohio St. 3d 413 (Ohio 2004).

Opinion

Per Curiam.

{¶ 1} Respondent, Christian Dean Rothermel of Hamilton, Ohio, Attorney Registration No. 0043140, was admitted to the practice of law in Ohio in 1977. On December 31, 1984, we suspended respondent from practice for one year for professional misconduct involving conversion of client trust funds, failure to disburse funds held on a client’s behalf, and failure to maintain the identity of client funds in a trust account. Disciplinary Counsel v. Rothermel (1984), 15 Ohio St.3d 121, 15 OBR 272, 472 N.E.2d 1072. Respondent did not immediately apply for readmission to the bar at the end of his one-year suspension but was eventually reinstated. Disciplinary Counsel v. Rothermel (1999), 86 Ohio St.3d 1215, 716 N.E.2d 712.

{¶2} On October 6, 2003, relator, Cincinnati Bar Association, charged that respondent had again violated the Code of Professional Responsibility. A panel of the Board of Commissioners on Grievances and Discipline heard the cause and, based on the parties’ comprehensive stipulations and other evidence, made findings of misconduct and a recommendation, all of which the board adopted.

Misconduct

{¶ 3} As stipulated, the board found that around March 1, 2001, respondent represented an estranged wife in the administration of her deceased husband’s estate. The husband, who had died intestate, left an estate containing a $518.57 paycheck and debts of approximately $23,000, rendering the estate insolvent. On April 30, 2001, respondent deposited the $518.57 check into his client trust account.

{¶ 4} Respondent’s client was the sole beneficiary of her husband’s life-insurance policy, which had a death benefit of $31,707.10. On July 30, 2001, the [414]*414client and respondent agreed in writing that respondent would reimburse relatives who had advanced money for her husband’s funeral and burial expenses, pay decedent’s outstanding medical bills, and distribute the remaining insurance proceeds based on a formula that distributed one-half of the net proceeds to the client and one-half to her husband’s children.

{¶ 5} The client endorsed the life-insurance check, and on July 31, 2001, respondent deposited the check into his client trust account. Between August 1, 2001, and August 13, 2001, respondent made eight disbursements totaling $15,941.74 from the trust account, purportedly on behalf of the decedent’s estate, leaving a balance of $16,283.93. From the date of the last check until February 10, 2003, respondent failed to maintain sufficient funds in his trust account to safeguard the remaining $16,283.93. And between August 2001 and June 2002, respondent wrote 15 checks to himself against the trust account. These checks, totaling $12,980, were used for purposes unrelated to the decedent’s estate. Respondent also failed to disburse additional insurance proceeds until February 2003, when sufficient funds were finally available in his client trust account.

{¶ 6} Throughout the times relevant to the complaint, respondent failed to maintain complete records of funds in his client trust account and was unable to render appropriate accounts. As an example, respondent deposited $30,800 into the account in February 2003, $27,300 of which came from unidentified sources. On February 17, 2003, respondent distributed from his trust account $12,514.45 to his client and others; however, as of the hearing date, respondent had not paid at least $3,000 in accordance with his and his client’s July 30, 2001 agreement.

{¶ 7} In addition to the stipulated facts, the board found that respondent did not advise his client or even research the question of whether she was legally obligated to pay her estranged husband’s debts from the life-insurance proceeds. Respondent instead deferred to the client’s decision to deposit the insurance proceeds in his trust account, to reimburse relatives for the funeral and burial expenses they had paid, and to distribute one-half of any remaining insurance proceeds to his client and one-half to the decedent’s surviving children. Respondent claims that it was also his client’s idea to negotiate with medical providers for a reduction of the decedent’s medical expenses and then to divide the savings by thirds — one-third to herself, one-third to the decedent’s children, and one-third to respondent for legal fees.

{¶ 8} As for his withdrawal of $12,980 from the client trust account, respondent explained that he “borrowed” the money, making a series of 15 withdrawals over ten months and using the money to pay his personal office and living expenses. The board found that respondent did not have his client’s consent to this arrangement and allowed the client to believe that leaving her money in his trust account to earn “approximately 5 percent” interest was a good investment. [415]*415Respondent did not document his loan, specify terms for repayment or interest, or give the client security against loss. He also did not advise her of their conflicting interests or suggest that she should seek other counsel to protect her interests.

{¶ 9} The client’s mother-in-law filed the original grievance against respondent, from which the board concluded that at least one of the decedent’s relatives was confused as to whom respondent represented. Respondent testified that he represented only the widow, although he discussed the work he was doing on the widow’s behalf with others. This arrangement raised for the board the issue of a conflict of interest, in addition to his financial self-dealing, but neither conflict had been charged against respondent.

{¶ 10} Quoting the panel’s report, the board concluded:

{¶ 11} “Respondent, in effect and in fact, charged his client a fee based on a percentage of supposed savings for convincing creditors with doubtful claims against his client to accept from his client payment less than the decedent owed them. In the meantime while negotiations were supposedly ongoing over a nearly two year period, Respondent systematically drained his client’s funds from his trust account using those funds for his own purposes only.

{¶ 12} “Respondent eventually restored the funds largely with deposits of unknown origin. Respondent claims that he has been unable to find his client and therefore has not delivered her money to her although he has drawn trust account checks payable to her. There is no independent evidence in the record demonstrating funds on deposit to honor the checks drawn on that account. No report of unclaimed funds has been made.”

{¶ 13} Respondent admitted and the board found that respondent had violated DR 9-102(A) (requiring an attorney to deposit client’s funds in a separate identifiable bank account) and 9-102(B)(3) (requiring an attorney to maintain complete records of client’s property and to render appropriate accounts) by failing to maintain client funds in a client trust account until properly disbursed. Respondent also admitted and the board found that he had violated DR 1-102(A)(4) (barring conduct involving fraud, deceit, dishonesty, or misrepresentation) by removing funds belonging to a client from a client trust account and using those funds for his own purpose.

Sanction

{¶ 14} In recommending a sanction for this misconduct, the board considered the mitigating and aggravating factors of respondent’s case.

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Disciplinary Counsel v. McCauley
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Disciplinary Counsel v. Robertson
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Cleveland Bar Ass'n v. Herron
112 Ohio St. 3d 564 (Ohio Supreme Court, 2007)
Cincinnati Bar Ass'n v. Rothermel
860 N.E.2d 754 (Ohio Supreme Court, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
819 N.E.2d 1099, 104 Ohio St. 3d 413, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cincinnati-bar-assn-v-rothermel-ohio-2004.