Disciplinary Counsel v. McCauley

873 N.E.2d 269, 114 Ohio St. 3d 461
CourtOhio Supreme Court
DecidedAugust 29, 2007
DocketNo. 2007-0336
StatusPublished
Cited by6 cases

This text of 873 N.E.2d 269 (Disciplinary Counsel v. McCauley) 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
Disciplinary Counsel v. McCauley, 873 N.E.2d 269, 114 Ohio St. 3d 461 (Ohio 2007).

Opinion

Per Curiam.

{¶ 1} Respondent, Christopher James McCauley of Brecksville, Ohio, Attorney Registration No. 0034632, was admitted to the practice of law in Ohio in 1986. The Board of Commissioners on Grievances and Discipline recommends that we indefinitely suspend respondent’s license to practice law based on findings that he repeatedly withdrew funds from his client trust account and improperly used the money for his personal and business expenses. On review, we agree that respondent committed professional misconduct as found by the board and that an indefinite suspension is appropriate.

{¶ 2} Relator, Disciplinary Counsel, charged respondent with five counts of professional misconduct. Respondent admitted most of the charges but disputed that he had violated DR 1-102(A)(4) (a lawyer shall not engage in fraud, deceit, dishonesty, or misrepresentation), as alleged in Counts I, II, III, and V. The parties jointly proposed an indefinite suspension.

{¶ 3} A three-member panel of the board heard the cause and made findings of fact and conclusions of law and recommended an indefinite suspension. The board adopted the panel’s findings of misconduct and recommendation. No objections have been filed.

Misconduct

{¶ 4} During the underlying events, respondent practiced law as McCauley & Associates Co., L.P.A., providing general legal representation to clients and debt collection services to several businesses. In particular, respondent represented Christina Erhardt in obtaining proceeds from some retirement accounts and [462]*462collected debts for United Consumer Financial Services (“UCFS”) and Alterra Healthcare. In administering his practice, respondent maintained an Interest on Lawyer Trust Account (“IOLTA”) account for entrusted client funds and an operating account for his office at American National Bank.

Count I

{¶ 5} Count I alleged that respondent improperly administered his IOLTA account while managing his law firm’s practice. Respondent admitted that between January 1, 2002, and December 31, 2005, he commingled funds and used money from his IOLTA account to pay personal and business expenses. Specifically, respondent wrote or authorized 21 checks payable to himself for a total of $13,580, 11 checks for a total of $3,275 in cash, and two checks totaling $22,000 to repay a personal loan from his client trust account. Respondent arranged for electronic transfers totaling $4,358 to pay the law firm’s utility bills and wrote or authorized seven checks totaling $3,475 to pay a combination of personal and office expenses, a check for $3,950 for office rent, and another $100 check to an attorney in his firm. Respondent additionally overdrew his IOLTA account nine times during this period, incurring $252 in bank fees as a result.

{¶ 6} The parties stipulated that respondent violated the following Disciplinary Rules relative to Count I: DR 1-102(A)(5) (a lawyer shall not engage in conduct that is prejudicial to the administration of justice), 1-102(A)(6) (a lawyer shall not engage in conduct that adversely reflects upon his fitness to practice law), and 9-102(B)(3) (a lawyer shall maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accounts to his client regarding them). We accept the stipulations. Moreover, because respondent violated DR 9-102(A) (all client funds in a lawyer’s possession, other than funds advanced for costs or expenses, must be deposited and maintained in a separate identifiable bank account), we also agree that respondent violated that Disciplinary Rule. Finally as to Count I, we agree with the board that by withdrawing client-entrusted funds for his personal and his law firm’s use, respondent acted dishonestly in violation of DR 1~102(A)(4) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation).

Counts II, III, and V

{¶ 7} Counts II, III, and Y arise out of respondent’s debt collection services for UCFS and Alterra and his representation of Erhardt.

{¶ 8} UCFS, the grievant in Count II, and Alterra, the grievant in Count III, consigned accounts receivable to respondent for collection and payment. Respondent arranged with both clients to deduct an agreed-upon percentage from the collection proceeds for his fee and to remit the remainder to the clients. [463]*463Respondent agreed to accept one-third to one-half of the collected funds, depending on the circumstances, as payment from UCFS, and one-third of the collected funds from Alterra. Respondent employed attorneys and administrative staff to pursue the accounts receivable through debtor contact, legal action, and collection proceedings after judgment.

{¶ 9} Respondent began collecting consumer installment sales accounts for UCFS in June 2002, when UCFS referred approximately 15,000 accounts to him. Between July 2002 and May 2004, respondent collected nearly $400,000 for UCFS but remitted only $23,949, far less than he owed under their agreement. In early 2004, UCFS contacted respondent about the shortfall, and respondent and representatives of UCFS audited his accounts together to verify the amount due to UCFS. On May 15, 2004, respondent signed a cognovit promissory note for the benefit of UCFS for $197,315, to be paid in 12 monthly installments of $16,533.

{¶ 10} Respondent or an administrative employee regularly transferred fee income as earned from clients like UCFS and Alterra from the law firm’s IOLTA account to the law office operating account to pay the law firm’s bills. But after the promissory note had been signed, the burden of making installment payments to UCFS depleted the operating account at times to the extent that respondent’s law firm could not pay monthly expenses, including payroll. When operating expenses exceeded the funds available in the operating account, either respondent or an employee acting with his authority would transfer as yet unearned funds from the IOLTA account to cover the expenses. Respondent rationalized these withdrawals as “advances,” because his staff typically reconciled the IOLTA account and operating accounts each month, without any carryover.

{¶ 11} Eventually, respondent’s law firm defaulted on the monthly payments due UCFS under the promissory note, and UCFS obtained a $178,054 judgment against respondent on the note. UCFS also sued respondent for malpractice, conversion, fraud, and breach of contract, claims that respondent and UCFS resolved through a consent judgment requiring respondent to pay an additional $35,049.

{¶ 12} The parties stipulated that respondent violated the following Disciplinary Rules relative to UCFS and Count II: DR 1 — 102(A)(5), 1-102(A)(6), 9-102(B)(3), and 9-102(B)(4) (a lawyer shall promptly pay or deliver to the client as requested by the client the funds, securities, and other properties in the possession of the lawyer which the client is entitled to receive). We accept those stipulations. Also as to Count II, we find that respondent violated DR 1-102(A)(4) by misappropriating entrusted client funds and using the unearned money to pay creditors.

[464]*464{¶ 13} In trying to satisfy his obligations to UCFS, other clients, and creditors, respondent also misused funds rightfully belonging to Alterra. In January 2005, respondent collected $5,000 from an Alterra debtor and deposited the funds in his IOLTA account.

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Cite This Page — Counsel Stack

Bluebook (online)
873 N.E.2d 269, 114 Ohio St. 3d 461, Counsel Stack Legal Research, https://law.counselstack.com/opinion/disciplinary-counsel-v-mccauley-ohio-2007.