Dayton Bar Ass'n v. Gerren

812 N.E.2d 1280, 103 Ohio St. 3d 21
CourtOhio Supreme Court
DecidedAugust 18, 2004
DocketNo. 2004-0496
StatusPublished
Cited by20 cases

This text of 812 N.E.2d 1280 (Dayton Bar Ass'n v. Gerren) 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
Dayton Bar Ass'n v. Gerren, 812 N.E.2d 1280, 103 Ohio St. 3d 21 (Ohio 2004).

Opinion

Per Curiam.

{¶ 1} Respondent, Nicholas L. Gerren Jr. of Dayton Ohio, Attorney Registration No. 0032341, was admitted to the practice of law in Ohio in 1973. On February 10, 2003, relator, Dayton Bar Association, charged respondent with having violated DR 7-101(A)(3) (prohibiting an attorney from intentionally damaging or prejudicing a client) and 9-102(B)(3) (requiring an attorney to keep complete records of client’s property in the attorney’s possession), among other Disciplinary Rules. A panel of the Board of Commissioners on Grievances and Discipline heard the cause and, based on the parties’ stipulations and other evidence, made findings of fact, conclusions of law, and a recommendation, all of which were adopted by the board.

Misconduct

{¶ 2} Before the panel, the parties agreed that respondent had violated DR 7-101(A)(3) and 9-102(B)(3) and asked that the other allegations of misconduct be dismissed. The parties also stipulated to the events underlying the admitted infractions.

{¶ 3} Beginning in 1996, respondent represented a client in a personal injury claim arising from a motorcycle accident. Respondent settled the client’s claim, without having to file suit, for the $50,000 limit of the tortfeasor’s insurance policy. After deducting his one-third contingent fee, respondent deposited the remaining settlement proceeds in his trust account. Respondent later issued check payments to all but one provider of his client’s medical care. He then also paid his client the settlement proceeds to which the client was entitled.

{¶ 4} The unpaid provider — the Franciscan Medical Center — had billed respondent’s client for $12,159.64 in inpatient and outpatient services. Respondent offered to attempt to reduce this amount by negotiating a compromise, and his [22]*22client agreed. The client also agreed that if respondent’s negotiations were successful, they would divide the resulting savings, with one third of the proceeds going to respondent and two thirds going to the client.

{¶ 5} Respondent contacted Franciscan Medical Center and negotiated with a representative to within $200 of a deal. The negotiations eventually stalled, however, because the medical center had financial difficulties and respondent lost track of his contact. At about the same time, respondent began to face a series of overwhelming personal problems. He went through a divorce, and his father became seriously ill. Respondent’s practice, which had never been particularly lucrative, suffered due to these incidents and other factors. And after respondent became involved in a complaint against the Montgomery County Public Defender, his professional stature in the community suffered as well. Respondent also unsuccessfully ran for the Ohio General Assembly, essentially closing his practice during his campaign.

{¶ 6} During these events, respondent made a series of disbursements from his trust account and used the funds to pay his personal expenses, all the while realizing the impropriety of his actions. Respondent eventually exhausted the money that he had reserved to satisfy his client’s debt to the Franciscan Medical Center.

{¶ 7} Several years passed before Megacity Collections, a debt collection agency that had taken over the Franciscan Medical Center’s accounts receivable, contacted respondent. Having by that time spent the money that was to pay his client’s last medical bill, respondent accepted responsibility for payment and began negotiating with Megacity on his own behalf. Respondent had some difficulty pinning the collection agency down as to the precise amount of the debt, but he nevertheless made at least two $500 payments to satisfy the arrearage.

{¶ 8} In time, however, respondent’s financial situation caused him to miss some payments, and the collection agency obtained a judgment against his client for the balance of the debt. When respondent learned of this development, he contacted Megacity Collections in an effort to settle the account with them. Megacity Collections then reported respondent’s transgressions to relator. Respondent has since obtained a loan and attempted to pay the collection agency $11,059 to retire the debt and satisfy the judgment against his client. As of the hearing date, however, respondent had not been able to finally resolve the matter.

{¶ 9} Based on these facts, the board found that respondent had violated DR 7-101(A)(3) and 9-102(B)(3), as stipulated. Recognizing that neither it nor the panel was constrained to find only the misconduct stipulated by the parties, see Section 1(A) of the Rules and Regulations Governing Procedure on Complaints and Hearings Before the Board of Commissioners on Grievances and Discipline [23]*23(“BCGD Proc.Reg.”), the board nevertheless dismissed all other allegations of misconduct.

Sanction

{¶ 10} Respondent candidly acknowledged that he was wrong to withdraw for his own use settlement funds that had been set aside to pay his client’s last medical bill, and the board considered this admission a mitigating feature of respondent’s case. See BCGD Proc.Reg. 10(B)(1)(g). The board also found that prior to having committed this ethical infraction, respondent had had an impeccable legal career dedicated to providing legal services for the less fortunate and highlighted by significant community service. Respondent further accepted responsibility to repay the money he had misappropriated and did so notwithstanding the outcome of the disciplinary proceedings. And in his testimony at the hearing, respondent apologized and expressed genuine remorse for his behavior and the embarrassment he had caused the legal profession, impressing the panel and board with his sincerity. In fact, relator’s counsel was convinced that the mitigating factors in this case warranted the imposition of a less severe sanction than was usual in similar cases.

{¶ 11} Beyond this, the board found that although respondent’s client has not so far complained of financial repercussions from respondent’s transgressions, the judgment entered against the client might easily have had significant adverse effects. And despite respondent’s remorse, his character and standing in the community, and the dismissal of other charges of misconduct, including a violation of DR 1-102(A)(4) (barring an attorney from dishonesty, fraud, deceit, or misrepresentation), respondent’s infractions constituted serious misconduct. The misappropriation of a client’s funds can be cause for disbarment, see Cleveland Bar Assn. v. Dixon (2002), 95 Ohio St.3d 490, 769 N.E.2d 816, and even without dishonesty or deceit, misappropriation of client’s money can warrant the indefinite suspension of an attorney's license. Dayton Bar Assn. v. Green, 97 Ohio St.3d 119, 2002-Ohio-5314, 776 N.E.2d 1060. An exception may be made, however, when the misappropriation represents an isolated incident in an otherwise unblemished career. Toledo Bar Assn. v. Kramer (2000), 89 Ohio St.3d 321, 323, 731 N.E.2d 643.

{¶ 12} Adopting the panel’s recommendation, the board agreed that respondent’s misconduct fell under the isolated-incident exception and did not require an actual suspension.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Disciplinary Counsel v. Pigott.
2018 Ohio 5096 (Ohio Supreme Court, 2018)
Columbiana County Bar Association v. Barborak
2016 Ohio 8167 (Ohio Supreme Court, 2016)
Disciplinary Counsel v. Streeter
2014 Ohio 1051 (Ohio Supreme Court, 2014)
Disciplinary Counsel v. Edwards
2012 Ohio 5643 (Ohio Supreme Court, 2012)
Cincinnati Bar Assn. v. Britt
2012 Ohio 4541 (Ohio Supreme Court, 2012)
Disciplinary Counsel v. Burchinal
2012 Ohio 3882 (Ohio Supreme Court, 2012)
Disciplinary Counsel v. Squire
2011 Ohio 5578 (Ohio Supreme Court, 2011)
Disciplinary Counsel v. Longino
2011 Ohio 1524 (Ohio Supreme Court, 2011)
Toledo Bar Assn. v. Stahlbush
2010 Ohio 3823 (Ohio Supreme Court, 2010)
Cleveland Bar Ass'n v. Mishler
118 Ohio St. 3d 109 (Ohio Supreme Court, 2008)
Disciplinary Counsel v. Bubna
878 N.E.2d 632 (Ohio Supreme Court, 2007)
Disciplinary Counsel v. Robertson
865 N.E.2d 886 (Ohio Supreme Court, 2007)
Cuyahoga County Bar Ass'n v. Maybaum
858 N.E.2d 359 (Ohio Supreme Court, 2006)
Disciplinary Counsel v. Claflin
107 Ohio St. 3d 31 (Ohio Supreme Court, 2005)
Disciplinary Counsel v. Hunter
106 Ohio St. 3d 418 (Ohio Supreme Court, 2005)
Disciplinary Counsel v. Johnson
106 Ohio St. 3d 365 (Ohio Supreme Court, 2005)
Disciplinary Counsel v. Holland
106 Ohio St. 3d 372 (Ohio Supreme Court, 2005)
Dayton Bar Ass'n v. Gerren
825 N.E.2d 609 (Ohio Supreme Court, 2005)

Cite This Page — Counsel Stack

Bluebook (online)
812 N.E.2d 1280, 103 Ohio St. 3d 21, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dayton-bar-assn-v-gerren-ohio-2004.