Dayton Bar Assn. v. Austin

1997 Ohio 280

• Court: Ohio Supreme Court
• Decided: December 31, 1997
• Docket: 1997-1748
• Status: Published

Opinion

DAYTON BAR ASSOCIATION v. AUSTIN.

[Cite as Dayton Bar Assn. v. Austin (1997), ___ Ohio St.3d ___.]

Attorneys at law — Misconduct — Public reprimand — Commingling and

mismanaging guardianship accounts.

(No. 97-1748 — Submitted October 7, 1997 — Decided December 31,

1997.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 96-117.

In 1984, respondent, Richard Austin of Christiansted, St. Croix, Virgin

Islands, Attorney Registration No. 0031709, received funds as guardian of three

minor children. He placed the funds in his trust account and not in a guardianship

account. Thereafter, he failed to keep proper account of deposits and payments to

the guardianship account, commingled client funds with the guardianship funds,

and failed to provide proper accountings to the probate court. As a result of

respondent’s actions, the beneficiaries of the guardianship funds failed to earn

proper interest.

In late 1992 or early 1993, respondent was removed as guardian, and a

successor guardian was appointed. By 1995, respondent had made full and

complete restitution to the guardianship .

In December 1996, relator, Dayton Bar Association, filed a complaint

charging respondent with violations of several Disciplinary Rules, and the matter

was submitted to a panel of the Board of Commissioners on Grievances and

Discipline (“board”) on stipulations of the parties.

The panel found that respondent commingled and mismanaged guardianship

accounts and concluded that his actions violated DR 1-102(A)(6) (engaging in

conduct adversely reflecting upon the lawyer’s fitness to practice law), 9- 102(B)(3) (failing to maintain complete records of a client’s funds), and 9-

102(B)(4) (failing to promptly deliver funds in the possession of a lawyer which

the client is entitled to receive).

The panel further found in mitigation that at no time during respondent’s

tenure as guardian were the beneficiaries denied access to their accounts or use of

the funds, that respondent provided for the needs of the beneficiaries with no

interruption, problems, or difficulties, and that respondent made full and complete

restitution before this disciplinary action was commenced. The panel also found

that the accounting problems occurred during a time of emotional stress for

respondent due to the termination of his marriage, his remarriage, his relocation to

the Virgin Islands to provide legal services to the poor, his subsequent divorce

from his second wife, the devastation of his community and his property by

Hurricane Hugo in 1989, and his complete collapse followed by hospitalization at

the Cleveland Clinic in late 1989. In addition, the panel found that for thirteen

years respondent has worked at an agency providing legal services to the poor in

the Virgin Islands, and that he was so highly regarded in his position of trust and

management that he had been considered for a position as director of the agency.

The panel recommended that respondent receive a public reprimand.

The board adopted the findings, conclusions, and recommendation of the

panel.

__________________

John M. Ruffolo, for relator.

Gary J. Leppla, for respondent.

Per Curiam. We adopt the findings and conclusions of the board. Based

upon the mitigating circumstances, we find, as recommended by the board, that

2 respondent ought to be and he hereby is publicly reprimanded. Costs taxed to

respondent.

Judgment accordingly.

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

LUNDBERG STRATTON, JJ., concur.