[Cite as Disciplinary Counsel v. Sabroff, 123 Ohio St.3d 182, 2009-Ohio-4205.]




                         DISCIPLINARY COUNSEL v. SABROFF.
[Cite as Disciplinary Counsel v. Sabroff, 123 Ohio St.3d 182, 2009-Ohio-4205.]
Attorneys — Misconduct — Multiple violations of the Disciplinary Rules and the
        Rules of Professional Conduct — Felony conviction — Failure to
        cooperate in the disciplinary process — Disbarment is the presumptive
        sanction for misappropriating client funds and practicing law while under
        suspension.
   (No. 2009-0467 — Submitted April 21, 2009 — Decided August 27, 2009.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                    Discipline of the Supreme Court, No. 08-074.
                                  __________________
        Per Curiam.
        {¶ 1} Respondent, Brett M. Sabroff, Attorney Registration No. 0018933,
with a registration address in Mayfield Heights, Ohio, was admitted to the
practice of law in Ohio in 1977. The Board of Commissioners on Grievances and
Discipline has recommended that this court permanently disbar respondent, based
on findings that he misappropriated clients’ funds, settled a client’s claim without
her consent, failed to maintain all client funds in an attorney trust account,
commingled client and personal funds in his trust account, practiced law while
under suspension, and failed to cooperate in the efforts to investigate his
misconduct. We agree that respondent committed professional misconduct as
found by the board and that permanent disbarment is the appropriate sanction for
his misconduct.
        {¶ 2} Relator, Disciplinary Counsel, charged respondent with violations
of the Disciplinary Rules of the Code of Professional Responsibility, the Rules of
Professional Conduct, the Gov.Bar R. V(4)(G) requirement that attorneys
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cooperate in investigations of misconduct, and the duties of a suspended attorney
specified in Gov.Bar R. V(8)(E). When service could not be perfected at the
address on file for respondent with the Office of Attorney Services or at a last
known address, the board served the complaint on the Clerk of the Supreme Court
pursuant to Gov.Bar R. V(11)(B) (providing that the Clerk is the agent for service
of process when the whereabouts of Ohio lawyers are unknown). Respondent
failed to answer the complaint, and pursuant to Gov.Bar R. V(6)(F), relator
moved for default. A master commissioner appointed by the board granted the
motion, making findings of fact, conclusions of law, and the recommendation that
respondent be permanently disbarred.          The board adopted the master
commissioner’s findings of misconduct, conclusions of law, and recommendation.
                                  Misconduct
                        Count I – The Sebolds’ Grievance
       {¶ 3} In July 2001, Mikki and Mark Sebold engaged respondent to
represent them in their personal-injury claims arising from an automobile
accident. On respondent’s recommendation, the Sebolds received treatment for
their injuries from Dr. Albert Musca.       Respondent settled their claims and
presented the Sebolds with a settlement statement reflecting that he had withheld
part of their share to pay Dr. Musca for their medical treatment. However,
respondent did not pay the Sebolds’ medical bills, nor did he retain these funds
for their benefit in his attorney trust account. In January 2007, the Sebolds
received collection notices for their unpaid medical bills, and respondent
informed them that he had signed an agreement with Dr. Musca to be responsible
for the medical bills. Respondent could not produce a copy of this agreement, did
not pay Dr. Musca, and did not reimburse the Sebolds.
       {¶ 4} We accept the board’s findings that respondent misappropriated
the Sebolds’ funds and violated DR 1-102(A)(4) (prohibiting conduct involving
dishonesty, fraud, deceit, or misrepresentation), 1-102(A)(5) (prohibiting conduct




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prejudicial to the administration of justice), 1-102(A)(6) (prohibiting conduct that
adversely reflects on the lawyer's fitness to practice law), 9-102(B)(3) (requiring a
lawyer to maintain complete records and appropriate accounts), and 9-102(B)(4)
(requiring a lawyer to promptly pay or deliver funds in the lawyer's possession to
which the client is entitled).
                           Count II – Failure to Cooperate
        {¶ 5} In September 2007, relator sent a letter of inquiry to the respondent
regarding the Sebolds’ allegations. Although respondent signed the certified mail
return receipt, he did not respond to relator’s inquiry. In November 2007, relator
sent a second letter of inquiry to respondent. Respondent provided a response to
the second letter of inquiry, but he failed to address fully the specific allegations
in the Sebolds’ grievance. In April 2008, relator subpoenaed respondent to appear
for a deposition at relator’s office in Columbus, Ohio. At respondent’s request,
relator rescheduled the deposition for 9:00 a.m. on June 19, 2008, in Cleveland,
Ohio, based on respondent’s assertion that he could not physically travel to
Columbus. At 7:46 a.m. on the day of the deposition, respondent left a telephone
message at relator’s office in Columbus explaining that he had suffered a physical
injury that morning that prevented his appearance at the deposition. Relator and
respondent agreed that respondent would contact relator when he had sufficiently
recovered to sit for the deposition.         Respondent failed to reschedule the
deposition.
        {¶ 6} We accept the board’s findings that respondent violated
Prof.Cond.R. 8.4(d) (prohibiting conduct prejudicial to the administration of
justice) and 8.4(h) (prohibiting conduct that adversely reflects on the lawyer's
fitness to practice law) and Gov.Bar R. V(4)(G).
                         Count III – The Forgus Grievance
        {¶ 7} In August 2002, Erica Forgus hired respondent to represent her in a
personal-injury claim resulting from an automobile accident in Ohio. At the time,



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Forgus resided in Illinois, but in June 2004, she moved to Switzerland.
Respondent filed a complaint on her behalf in the Portage County Court of
Common Pleas in 2003, but in September 2005, the month before trial, he decided
to voluntarily dismiss the complaint. Although he wrote Forgus a letter and left
her a telephone message seeking her input, he nonetheless voluntarily dismissed
the complaint without waiting for her response or her consent. At that point,
Forgus had already purchased a transatlantic plane ticket so that she could appear
at trial.
            {¶ 8} Fifteen days later, respondent received a settlement offer and
contacted Forgus, recommending that she accept it. Forgus did not accept the
offer at that time and told respondent that they would discuss it further when she
arrived in Ohio the following week.           Contrary to her directive, respondent
accepted the settlement offer. Further, he forged Forgus’s name on the settlement
check, and on October 4, 2005, he deposited the funds into his attorney trust
account.       Respondent then prepared a settlement statement reflecting his 40
percent contingency fee of $7,000, expenses in the amount of $1,511.26, and a
disbursement of $9,000 to Forgus. After he arrived two and one-half hours late
for a meeting scheduled with Forgus and argued with her, she refused to sign the
settlement statement. Respondent subsequently mailed a check for $9,000 to
Forgus at her parents’ address. After he realized that he had failed to deduct
funds to pay her medical expenses from her share of the settlement, respondent
stopped payment on the check on November 17, 2005, promising to issue a new
one after he had paid her medical bills. Records from respondent’s attorney trust
account show that it often had a balance of less than $9,000 during the time
respondent retained Forgus’s money.
            {¶ 9} After hearing nothing from respondent, Forgus contacted the
Beachwood Police Department, which launched a criminal investigation.
Respondent pleaded guilty to one count of theft as a fifth-degree felony and paid




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restitution to Forgus in April 2007 as a condition of his agreement to plead to a
reduced charge.
          {¶ 10} We accept the board’s findings that respondent misappropriated
Forgus’s money and violated DR 1-102(A)(4), 1-102(A)(5), 1-102(A)(6), 7-
101(A)(3) (prohibiting a lawyer from prejudicing or damaging his client during
the course of the professional relationship), 9-102(B)(3), and 9-102(B)(4).
                           Count IV – Felony Conviction
          {¶ 11} On November 1, 2006, the state of Ohio indicted respondent on
fourth-degree-felony charges of theft, forgery, and uttering a forged document
based on his forging Forgus’s signature on her settlement check, cashing it, and
misappropriating those funds. The court set the case for trial on April 9, 2007, but
respondent arrived late. After the jury had been impaneled, the parties negotiated
a plea agreement. The state amended the complaint to charge respondent with
one count of theft as a felony of the fifth degree. Respondent pleaded guilty to
that charge, and the court dismissed the forgery and uttering charges. The court
delayed sentencing for a month and ordered respondent to pay restitution of
almost $12,000 in four days.
          {¶ 12} At his sentencing hearing, respondent admitting using cocaine and
marijuana after his plea hearing, resulting in his failing a court-ordered drug test.
He also admitted paying the restitution late. The court sentenced respondent to
community control, in-patient drug treatment, and community service.              In
addition, the court ordered respondent not to practice law.
          {¶ 13} We accept the board’s findings that respondent violated
Prof.Cond.R. 8.4(b) (prohibiting a lawyer from committing an illegal act that
reflects adversely on the lawyer’s honesty or trustworthiness), 8.4(c) (prohibiting
conduct involving dishonesty, fraud, deceit, or misrepresentation), 8.4(d), and
8.4(h).
                  Count V – Practicing Law while under Suspension



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       {¶ 14} On October 23, 2007, this court imposed an interim suspension on
respondent following his felony conviction for theft. In re Sabroff, 115 Ohio
St.3d 1435, 2007-Ohio-5636, 875 N.E.2d 98. Notwithstanding his suspension
from the practice of law, less than a month later, respondent sent a letter to the
Cleveland Heights Municipal Court on behalf of his son, who had been charged
with a traffic violation.    Respondent used letterhead referring to himself as
“Attorney and Counselor at Law,” and in the letter, he entered a plea of not guilty,
waived all statutory time requirements, and sought the scheduling of a pretrial
hearing. After relator apparently contacted respondent inquiring whether he had
practiced law with a suspended license, respondent sent a letter to the municipal
court explaining that he had “decided to withdraw as counsel” for his son because
of “a plethora of physical problems.”
       {¶ 15} We accept the board’s finding that respondent violated
Prof.Cond.R. 5.5(a) (prohibiting a lawyer from practicing law in a jurisdiction in
violation of the regulation of the legal profession in that jurisdiction) and Gov.Bar
R. V(8)(E) (requiring a lawyer to notify opposing counsel and the court of his
disqualification to practice law).
               Count VI – Commingling Client and Personal Funds
       {¶ 16} Between December 1, 2004, and February 28, 2006, respondent
maintained an attorney trust account at Huntington National Bank and used it to
pay his cable, credit card, telephone, and electric bills, insurance premiums,
college tuition, and his attorney registration fee, and he wrote numerous checks
out of this account made payable to “Cash.” The words “IOLTA [Interest on
Lawyers’ Trust Accounts] ACCOUNT” appear on the front of the checks in bold
letters. During this same time period, respondent deposited checks received for
settling the personal-injury claims of clients into this same account.
       {¶ 17} We accept the board’s finding that respondent violated DR 1-
102(A)(4), 1-102(A)(6), and 9-102(A) (requiring all funds of clients paid to a




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lawyer to be deposited in one or more identifiable bank accounts containing no
funds belonging to the lawyer).
                                     Sanction
       {¶ 18} When imposing sanctions for attorney misconduct, we consider a
number of factors, including the duties the lawyer violated, the lawyer's mental
state, and 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 Section 10 of the Rules and Regulations Governing Procedure on
Complaints and Hearings Before the Board of Commissioners on Grievances and
Discipline (“BCGD Proc.Reg.”). Disciplinary Counsel v. Broeren, 115 Ohio
St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21. Because each disciplinary
case is unique, we are not limited to the factors specified in the rule but may take
into account “all relevant factors” in determining what sanction to impose.
BCGD Proc.Reg. 10(B).
       {¶ 19} Respondent’s failure to cooperate in the investigatory process
prevents us from determining whether his health issues and chemical dependency
mitigate his misconduct.      See BCGD Proc.Reg. 10(B)(2)(g).            Regarding
aggravating factors, we accept the board’s findings that respondent acted with a
dishonest or selfish motive, engaged in a pattern of misconduct, committed
multiple offenses, failed to cooperate in the disciplinary process, and refused to
acknowledge the wrongful nature of his conduct. BCGD Proc.Reg. 10(B)(1)(b),
(c), (d), and (e).   We also accept the finding that respondent has not made
restitution to the Sebolds for the funds stolen from them and that he paid
restitution to Forgus only after being ordered to do so as a condition of his plea
agreement. BCGD Proc.Reg. 10(B)(1)(i).
       {¶ 20} The primary purpose of the disciplinary process is to protect the
public from lawyers who are unworthy of the trust and confidence essential to the



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attorney-client relationship and to allow us to ascertain the lawyer’s fitness to
practice law. Disciplinary Counsel v. Agopian, 112 Ohio St.3d 103, 2006-Ohio-
6510, 858 N.E.2d 368, ¶ 10. Respondent’s misappropriation of his clients’ funds,
his felony conviction, his dishonesty, his settlement of a personal-injury claim
against the express instructions of his client, his forgery of a client’s signature on
the settlement check, his practice of law with a suspended license, his failure to
notify the municipal court of his disqualification from practice, his commingling
of personal and client funds, his engagement in a pattern of misconduct, and his
failure to cooperate in the disciplinary process demonstrate that he is no longer fit
to practice law.
       {¶ 21} We have previously explained that “misappropriation of client
funds carrie[s] a ‘presumptive sanction of disbarment.’ ” Trumbull Cty. Bar Assn.
v. Kafantaris, 121 Ohio St.3d 387, 2009-Ohio-1389, 904 N.E.2d 875, ¶ 14,
quoting Cleveland Bar Assn. v. Dixon, 95 Ohio St.3d 490, 2002-Ohio-2490, 769
N.E.2d 816, ¶ 15. Similarly, “ ‘permanent disbarment is an appropriate sanction
for conduct that violates DR 1-102 and results in a felony conviction.’ ”
Disciplinary Counsel v. Stern, 106 Ohio St.3d 266, 2005-Ohio-4804, 834 N.E.2d
351, ¶ 8, quoting Disciplinary Counsel v. Gallagher (1998), 82 Ohio St.3d 51, 52,
693 N.E.2d 1078. Further, “ ‘[t]he normal penalty for continuing to practice law
while under suspension is disbarment.’ ” Disciplinary Counsel v. Frazier, 110
Ohio St.3d 288, 2006-Ohio-4481, 853 N.E.2d 295, ¶ 54, quoting Disciplinary
Counsel v. Allison, 98 Ohio St.3d 322, 2003-Ohio-776, 784 N.E.2d 695, ¶ 12, and
Disciplinary Counsel v. Mbakpuo, 98 Ohio St.3d 177, 2002-Ohio-7087, 781
N.E.2d 208, ¶ 13. See also Medina Cty. Bar Assn. v. Wootton, 110 Ohio St.3d
179, 2006-Ohio-4094, 852 N.E.2d 175, ¶ 10 (disbarring attorney for theft of his
clients’ funds, dishonesty, financial harm to his clients, and the failure to
cooperate).




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       {¶ 22} Respondent has not challenged the board’s findings of misconduct
or the recommended sanction of permanent disbarment. Based on respondent’s
conduct and our precedent, respondent is hereby permanently disbarred from the
practice of law in the state of Ohio.
       {¶ 23} Costs are taxed to respondent.
                                                              Judgment accordingly.
       MOYER,      C.J.,   and    PFEIFER,       LUNDBERG   STRATTON,   O’CONNOR,
O’DONNELL, LANZINGER, and CUPP, JJ., concur.
                                 __________________
       Jonathan Coughlan, Disciplinary Counsel, and Robert G. Berger, Assistant
Disciplinary Counsel, for relator.
                            ______________________




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