[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Becker, Slip Opinion No. 2014-Ohio-3665.]




                                           NOTICE
     This slip opinion is subject to formal revision before it is published in an
     advance sheet of the Ohio Official Reports.             Readers are requested to
     promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South
     Front Street, Columbus, Ohio 43215, of any typographical or other formal
     errors in the opinion, in order that corrections may be made before the
     opinion is published.


                         SLIP OPINION NO. 2014-OHIO-3665
                        DISCIPLINARY COUNSEL v. BECKER.
   [Until this opinion appears in the Ohio Official Reports advance sheets,
                 it may be cited as Disciplinary Counsel v. Becker,
                         Slip Opinion No. 2014-Ohio-3665.]
Attorneys—Misconduct—Misappropriation of funds entrusted to attorney as
        fiduciary of decedent’s estate and as guardian of incompetent person—
        Disbarment.
   (No. 2013-1257—Submitted January 7, 2014—Decided September 3, 2014.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                  Discipline of the Supreme Court, No. 2011-116.
                               ____________________
        PFEIFER, J.
        {¶ 1} Stephen Leslie Becker of Lima, Ohio, Attorney Registration No.
0002829, was admitted to the practice of law in Ohio on November 7, 1975.
Relator, disciplinary counsel, filed a complaint against Becker on December 5,
2011, alleging that Becker had violated the Disciplinary Rules of the Code of
                                 SUPREME COURT OF OHIO




Professional Responsibility and the Rules of Professional Responsibility.1 The
complaint described a pattern of misconduct in which, over a period of years,
Becker misappropriated funds entrusted to him, primarily to feed his gambling
addiction.
        {¶ 2} A panel of the Board of Commissioners on Grievances and
Discipline held hearings on the matter in December 2012 and January 2013. The
panel made findings of fact and conclusions of law and recommended that Becker
be permanently disbarred. The board adopted the panel’s report in its entirety.
        {¶ 3} Both sides have filed objections in this court. Given the gravity
and duration of the misconduct, the fiduciary duties violated, the harm caused
to vulnerable victims, the multiple aggravating factors, and the sanctions
imposed in similar cases, we adopt the board’s findings of fact and conclusions
of law. We also agree that permanent disbarment is the appropriate sanction.
                                         Misconduct
                     Count I—Christopher I. Becker Guardianships
        {¶ 4}      Becker’s nephew, Christopher I. Becker, was born in 1976 and
suffers from severe developmental disabilities. On December 12, 1983, the
Allen County Probate Court appointed Becker guardian of the estate of
Christopher, then still a minor. Becker also prepared and filed a “Fiduciary’s
Acceptance” form, thereby subjecting himself to possible penalties for improper
conversion of the property that he held as fiduciary.
        {¶ 5} In November 1990, Becker lent $5,000 to Jack and Cindy
Stevenson, taking a mortgage as security.                In July 1991, Robyn Becker,


1
 Relator charged Becker with misconduct under the applicable Disciplinary Rules of the Code of
Professional Responsibility for acts occurring before February 1, 2007, the effective date of the
Rules of Professional Conduct, which superseded the Disciplinary Rules. Acts occurring thereafter
were charged as violations of the Rules of Professional Conduct.




                                               2
                                January Term, 2014




Becker’s wife, lent an additional $56,000 to the Stevensons. This loan was
also secured by a mortgage.
       {¶ 6} In March 1992, Becker drafted a note for the Stevensons in which
they agreed to repay a loan in the amount of $63,000. The note identified the
lender as Christopher I. Becker. This loan was secured by a mortgage in favor of
Christopher. The Stevensons used the proceeds of this loan to repay Becker and
his wife for the two earlier loans. The loan was not disclosed on the guardian’s
account that Becker filed with the probate court. Two years later, when the
Stevensons repaid the loan, the receipt of the check and the interest earned were
not disclosed to the probate court.
       {¶ 7} In September 1994, Christopher was no longer a minor but
remained incompetent. Becker was again appointed guardian of Christopher’s
estate. Becker concedes that he failed to file the guardian’s account as frequently
as the law required and that he concealed his use of guardianship funds, including
$32,152.50 he lent to himself to pay gambling debts. He conceded that this
“loan” was not a proper use of Christopher’s funds.
       {¶ 8} In 2002, Becker used guardianship funds to lend $30,800 to his
daughter to help her buy a house. A second mortgage was recorded in Becker’s
favor and not disclosed to the court. Becker conceded that it is not permissible to
use guardianship funds to make a loan secured by a second mortgage.
       {¶ 9} In January 2005, the guardianship was terminated because
Christopher had moved to Colorado.           Becker was ordered to transmit the
guardianship funds to the Colorado guardian. The final account that Becker filed
in April 2006 indicated that he had distributed in full the remaining balance of
$35,082.75. But Becker admitted that he did not make that distribution. Instead,
he issued a check to Christopher’s father for $17,272.98 in November 2008. The
final account also did not disclose the $30,800 loan to Becker’s daughter.




                                         3
                              SUPREME COURT OF OHIO




       {¶ 10} The board found by clear and convincing evidence that Becker’s
conduct regarding Christopher’s guardianships violated DR 1-102(A)(3)
(prohibiting conduct involving moral turpitude), 1-102(A)(4) (prohibiting conduct
involving     dishonesty,   fraud,   deceit,   or   misrepresentation),   1-102(A)(5)
(prohibiting conduct that is prejudicial to the administration of justice), and 1-
102(A)(6) (prohibiting conduct that adversely reflects on the lawyer’s fitness to
practice law). We adopt the board’s findings of fact and misconduct with respect
to Count I.
                     Count II—Eileen Binkley joint bank account
       {¶ 11} For over 20 years until her death in 2008, Becker helped care for
his elderly aunt, Eileen Binkley. Binkley signed a will bequeathing one-third of
her estate to Becker and a power of attorney granting Becker broad authority to
manage her affairs. In July 2005, Becker opened a joint bank account in his and
Binkley’s name and deposited $20,500 in the account, including a check payable
to Binkley for $18,000. Three more checks totaling $42,000 were deposited in
August 2005—one payable to Binkley for $17,000 and two payable to Becker for
$25,000. In July and August, Becker wrote checks to four different casinos
totaling $37,000. From October to December 2005, Becker withdrew $9,500 in
cash and wrote three more checks to casinos totaling $22,000 and a check for
$25,000 to repay money that he had improperly taken from Christopher.
       {¶ 12} In June 2007, Becker deposited a cashier’s check in the amount of
$15,000 drawn from a separate savings account of Binkley’s. On the same day,
Becker signed and endorsed a check for $15,000 payable to himself.
       {¶ 13} In June 2008, Becker deposited $65,222.37 of Binkley’s money
into the joint account. Over the next ten days, Becker wrote checks totaling
$62,500 to four casinos.
       {¶ 14} Becker was confronted in October 2010 by attorneys from the firm
that employed him, Huffman, Kelley, Becker & Brock, L.L.C. (“the Huffman




                                           4
                                 January Term, 2014




firm”). Becker admitted that he did not have authority to spend Binkley’s money
on his gambling debts. He acknowledged that he had stolen from her and referred
to himself as a thief.
        {¶ 15} The board found, by clear and convincing evidence, that Becker
had used the joint account to convert tens of thousands of dollars belonging to his
aunt.   The board found that Becker’s conduct violated DR 1-102(A)(3), 1-
102(A)(4), and 102(A)(6) and Prof.Cond.R. 8.4(b) (prohibiting illegal acts that
reflect adversely on the lawyer’s honesty or trustworthiness), 8.4(c) (prohibiting
conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(h)
(prohibiting conduct that adversely reflects on the lawyer’s fitness to practice
law). We adopt the board’s findings of fact and misconduct with respect to Count
II.
                          Count III—Eileen Binkley estate
        {¶ 16} Eileen Binkley, the subject of Count II of the complaint, died on
August 1, 2008, at the age of 91. Her will was admitted to probate, and on
August 6, 2008, Becker filed an application to be appointed executor.          The
application was granted, and Becker signed a fiduciary’s acceptance form, thereby
acknowledging that he was subject to penalties for improper conversion of
property that he held as a fidiciary.
        {¶ 17} Five days later, Becker issued a check payable to himself for
$27,500 from the estate’s bank account, calling it a “partial distribution” to a
beneficiary, i.e., himself. No other distributions were made at that time. Over the
next four months, Becker made other distributions to himself from the estate
account totaling over $51,000.
        {¶ 18} On January 21, 2009, Becker filed an estate inventory and a
memorandum in which he purported to disclose all the property that Binkley had
distributed as gifts before she died, including all money from joint bank accounts.
Notably missing from the list, however, was any mention of the tens of thousands



                                         5
                            SUPREME COURT OF OHIO




of dollars that Becker had distributed to himself from the joint account from 2005
to 2008. Even the existence of the joint account was not disclosed. Becker used
the joint account to hold estate funds, including a deposit in April 2009 of
$96,979.50 from the proceeds of the sale of Binkley’s house. Over the next few
months, Becker wrote several checks on the joint account, including $17,000
payable to casinos and $13,500 payable to cash.
       {¶ 19} The “First and Final Fiduciary’s Account” that Becker filed on
January 21, 2010, contained intentionally false and misleading information and
omissions. For instance, Becker failed to disclose the checks written to the
casinos and to cash. The account also falsely stated that final distributions had
been made to other beneficiaries in November 2009. Those distributions were not
made until May 2010 and October 2010, at least in part because the needed funds
were unavailable. When asked at the disciplinary hearing why the funds were not
available, Becker stated, “Because I had gambled the money away.”
       {¶ 20} The board found by clear and convincing evidence that Becker’s
conduct regarding Binkley’s estate violated Prof.Cond.R. 8.4(b), 8.4(c), 8.4(d)
(prohibiting conduct that is prejudicial to the administration of justice), and
8.4(h). We adopt the board’s findings of fact and misconduct with respect to
Count III.
                   Count IV—Funds pertaining to other clients
       {¶ 21} The parties stipulated at the hearing that in April 2010, Becker
improperly used for his personal purposes $2,216 that had been given him as
payment for legal services and that should have been reported to and deposited
with the Huffman firm. Becker falsely assured his colleagues that this was a one-
time mistake. Becker received a settlement check for $24,920.48 for client John
Festa, which should have been deposited into the firm’s IOLTA account. Instead,
he deposited the check into an account that he controlled. Becker wrote a check
for $22,040.61 from the account to pay his brother John Becker his share of




                                        6
                               January Term, 2014




Binkley’s estate. Becker also wrote a check for $2,879.87 payable to himself.
When Becker subsequently paid Festa $16,815.36, he used attorney fees received
from a different client. The board concluded by clear and convincing evidence
that Becker violated Prof.Cond.R. 8.4(c), 8.4(h), and 1.15(a) (a lawyer shall hold
the property of clients in the lawyer’s possession in an IOLTA account).
       {¶ 22} Several times Becker received funds for attorney fees that he did
not report to the Huffman firm—$6,230.12 from Festa, $1,200 from Matt
Gossard, $5,000 from Michael Steinke, $2,000 from Joan Clellan, $1,500 from
Brad Longstreth, $650 from Dennis Gardner, and an unidentified amount from
Jessica Wheeler. The board found by clear and convincing evidence that this
dishonesty to his employer in attempting to conceal his diversion of those fees
violated Prof.Cond.R. 8.4(c) and 8.4(h).
       {¶ 23} We adopt the board’s findings of fact and misconduct with respect
to Count IV.
                                    Sanction
       {¶ 24} “When imposing sanctions for attorney misconduct, we consider
relevant factors, including the ethical duties that the lawyer violated and the
sanctions imposed in similar cases. Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio
St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶ 16.             In making a final
determination, we also weigh evidence of the aggravating and mitigating factors
listed in BCGD Proc.Reg. 10(B). Disciplinary Counsel v. Broeren, 115 Ohio
St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21.” Disciplinary Counsel v.
O’Malley, 137 Ohio St.3d 161, 2013-Ohio-4566, 998 N.E.2d 470, ¶ 15.
       {¶ 25} The board found several aggravating factors: that Becker acted
with a dishonest and selfish motive, engaged in a pattern of misconduct,
committed multiple offenses, caused harm to vulnerable victims, and failed to
make full restitution. BCGD Proc.Reg. 10(B)(1)(b), (c), (d), (h), and (i). The




                                           7
                             SUPREME COURT OF OHIO




board found one mitigating factor: that Becker had no prior disciplinary record.
BCGD Proc.Reg. 10(B)(2)(a).
       {¶ 26} Becker offered no reliable evidence that he suffered from a mental
disability or a chemical dependency when the violation occurred. Accordingly,
we presume that he was healthy and unhindered at those times. Disciplinary
Counsel v. McCord, 121 Ohio St.3d 497, 2009-Ohio-1517, 905 N.E.2d 1182, ¶ 5.
       {¶ 27} It is obvious, given how much of the converted and
misappropriated money went to pay casinos, that Becker has a gambling problem.
But Becker has not established all the elements necessary to establish this
condition as a mitigating factor under BCGD Proc.Reg. 10(B)(2)(g). His former
psychologist did testify that Becker was a pathological gambler, but he did not
testify that this disorder caused Becker’s misconduct, BCGD Proc.Reg.
10(B)(2)(g)(ii), or that Becker had undergone a sustained period of successful
treatment, BCGD Proc.Reg. 10(B)(2)(g)(iii).            See Stark Cty. Bar Assn. v.
Williams, 137 Ohio St.3d 112, 2013-Ohio-4006, 998 N.E.2d 427, ¶ 23. Becker’s
failure to pursue any kind of consistent help for his problem eliminates this factor
as possible mitigation.
       {¶ 28} Becker      asserted   that   he   was    cooperative   and   that   his
cooperativeness should be a mitigating factor. BCGD Proc.Reg. 10(B)(2)(d).
Relator contended that Becker was uncooperative and that his uncooperativeness
should be an aggravating factor. BCGD Proc.Reg. 10(B)(1)(e). There is nothing
in the record that indicates that Becker was either notably cooperative or
conspicuously uncooperative.
       {¶ 29} Becker claims in his objections to the board’s report that he has
accepted full responsibility for his actions and that his acceptance should be a
mitigating factor. We see nothing in the record that suggests that Becker has
accepted full responsibility for his conduct. Becker characterized some of his
misappropriations as “loans” and suggests that calling some of his




                                            8
                                January Term, 2014




misappropriations “theft” is a matter of semantics. Becker also tried to take credit
for self-reporting even though the record reflects that the self-reporting occurred
only after he had been confronted by his colleagues at the Huffman firm. See
Disciplinary Counsel v. Yajko, 77 Ohio St.3d 385, 388, 674 N.E.2d 684 (1997).
       {¶ 30} Becker also objects to the board’s recommendation of disbarment,
citing his otherwise excellent record and his alleged attempts to address his
addiction. But we have consistently stated that “the primary purpose of the
disciplinary process is not to punish the offender but to protect the public from
lawyers who are unworthy of the trust and confidence essential to the attorney-
client relationship.” Cleveland Metro. Bar Assn. v. Lockshin, 125 Ohio St.3d 529,
2010-Ohio-2207, 929 N.E.2d 1028, ¶ 42. In this case, it is obvious that an
extreme sanction is necessary to protect the public.       Becker misappropriated
substantial sums that were entrusted to him.           As we have stated, “No
circumstances ever justify the deliberate misappropriation of [a] client’s funds for
a lawyer’s personal benefit,” and “the appropriate discipline when a lawyer
knowingly converts client funds is disbarment.” Cleveland Bar Assn. v. Belock,
82 Ohio St.3d 98, 100, 694 N.E.2d 897 (1998); Cuyahoga Cty. Bar Assn. v.
Churilla, 78 Ohio St.3d 348, 350, 678 N.E.2d 515 (1997). Given the extent and
duration of the various misappropriations and the helplessness of some of the
victims (including a disabled nephew and an elderly aunt), we are confident that
disbarment is the appropriate sanction.
       {¶ 31} Though gambling was a primary factor in many of the
misappropriations, it is not clear that it was the only factor. Furthermore, there is
no reason to believe that Becker has conquered his gambling problems. He has
not sought regular treatment for his gambling problems. In fact, it appears that he
has not sought any treatment since 2012. This case is therefore unlike Akron Bar
Assn. v. Smithern, 125 Ohio St.3d 72, 2010-Ohio-652, 926 N.E.2d 274.              In
Smithern, the respondent acknowledged her addictions, was receiving treatment



                                          9
                             SUPREME COURT OF OHIO




for them, and demonstrated that she could overcome them with continued
treatment. Id. at ¶ 10. There is no reason to think that Becker has control over his
gambling problem.
       {¶ 32} After considering the violations committed, the aggravating
factors, the mitigating factor, and all other relevant information, we conclude that
the appropriate sanction is disbarment. Accordingly, Stephen Leslie Becker is
hereby permanently disbarred from the practice of law in Ohio. Costs are taxed to
Becker.
                                                            Judgment accordingly.
       O’CONNOR, C.J., and O’DONNELL, LANZINGER, KENNEDY, FRENCH, and
O’NEILL, JJ., concur.
                             ____________________
       Scott J. Drexel, Disciplinary Counsel, Joseph M. Caligiuri, Chief Assistant
Disciplinary Counsel, and Robert R. Berger and Karen H. Osmond, Assistant
Disciplinary Counsel, for relator.
       Robert K. Leonard Law Offices, L.L.C., and Robert K. Leonard, for
respondent.
                          _________________________




                                        10
