[Cite as Columbus Bar Assn. v. Hunter, 130 Ohio St.3d 355, 2011-Ohio-5788.]




                         COLUMBUS BAR ASSN. v. HUNTER.
[Cite as Columbus Bar Assn. v. Hunter, 130 Ohio St.3d 355, 2011-Ohio-5788.]
Attorneys—Misconduct—Indefinite suspension.
  (No. 2011-1040—Submitted August 8, 2011—Decided November 15, 2011.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                    Discipline of the Supreme Court, No. 10-071.
                                 __________________
        Per Curiam.
        {¶ 1} Respondent, Kyle Lee Hunter of Columbus, Ohio, Attorney
Registration No. 0069099, was admitted to the practice of law in Ohio in 1998.
On May 24, 2010, we suspended Hunter’s license to practice law on an interim
basis following his felony conviction for failure to report a cash payment of more
than $10,000 in his law practice in violation of Sections 5331 and 5322(a), Title
31, U.S.Code and former Section 103.30, Title 31, C.F.R. In re Hunter, 125 Ohio
St.3d 1431, 2010-Ohio-2261, 927 N.E.2d 4.
        {¶ 2} In August 2010, relator, Columbus Bar Association, filed a
complaint alleging that the conduct underlying Hunter’s felony conviction also
violated the Rules of Professional Conduct. Relator later amended its complaint
to allege additional misconduct arising from Hunter’s handling of two client
matters and his client trust account.
        {¶ 3} The parties submitted stipulations of fact and misconduct and
jointly waived a formal hearing on the matter.              A panel of the Board of
Commissioners on Grievances and Discipline adopted the stipulations without
modification and recommended that Hunter be indefinitely suspended from the
practice of law and that his reinstatement be conditioned upon the completion of
his supervised release and satisfaction of any fee-arbitration award entered in
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favor of a client harmed by his misconduct. The board adopted the stipulated
facts and the recommended sanction, except that rather than conditioning
Hunter’s reinstatement upon the satisfaction of a potential arbitration award, the
board recommends requiring him to make restitution to those harmed by his
misconduct. We adopt the stipulated findings of fact and misconduct, as well as
the sanction and conditions for reinstatement recommended by the board.
                                        Misconduct
                                        Count One
        {¶ 4} The parties have stipulated and the board has found that on January
6, 2010, Hunter pleaded guilty to one felony count of receiving more than
$10,000 in cash in the course of his trade or business as an attorney and failing to
report it as required by law. In April 2010, a federal court accepted Hunter’s plea,
sentenced him to a six-month term of imprisonment, and fined him $100. Now
released from federal prison, he is subject to three years of supervision that will
require him to participate in testing and treatment for drug and alcohol abuse, to
receive mental-health treatment, and to perform 50 hours of community service
within the first year of his release.
        {¶ 5} The parties have stipulated, and the board has found, that Hunter’s
conduct violates 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 a lawyer from engaging in conduct involving dishonesty,
fraud, deceit, or misrepresentation), and 8.4(h) (prohibiting a lawyer from
engaging in conduct that adversely reflects on the lawyer's fitness to practice law).
                                        Count Two
        {¶ 6} With respect to count two, the parties have stipulated that in April
2008, Hunter agreed to represent Trina M. Scott on a contingent-fee basis in a
personal-injury and property-damage matter arising from a vehicle collision.
Scott gave Hunter all the documentation he requested. Hunter assured Scott that




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he would handle the case in a timely and effective manner, represented that he
was working on the case, and gave her the impression that he had submitted her
claim to the appropriate insurance carrier. In fact, he did little or nothing to
advance her case. Scott had difficulty reaching Hunter, and in November 2009,
Hunter advised her that he would soon face criminal charges that would render
him ineligible to practice law. Scott had to obtain new counsel to pursue her
claims.      Due to respondent’s inaction, Scott did not timely receive the
compensation to which she was entitled, and some of her medical providers filed
collection actions against her.
          {¶ 7} The parties have stipulated and the board has found that Hunter’s
conduct in the Scott matter violates Prof.Cond.R. 1.1 (requiring a lawyer to
provide competent representation to a client), 1.3 (requiring a lawyer to act with
reasonable diligence in representing a client), 1.4 (requiring a lawyer to
reasonably communicate with a client), and 8.4(h).
                                     Count Three
          {¶ 8} In June 2009, Charles Brian Strickler III paid a $2,000 retainer to
secure Hunter’s representation in a divorce and custody proceeding. In the fall of
2009, Hunter stopped keeping Strickler fully informed about the status of his case.
A significant amount of legal work still remained to be done when, in November
2009, Hunter advised Strickler that he would have to withdraw from his case due
to personal problems with the Internal Revenue Service (“IRS”).
          {¶ 9} Hunter sought new counsel for Strickler, arranged for him to meet
with the other lawyer, and gave him some documents to take to the meeting. He
later sent the case materials in his possession to the other attorney. Although
Hunter stated that he would file a notice of withdrawal with the court, he did not
do so. He was removed from the case when Strickler’s new attorney filed a notice
of substitution of counsel.




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          {¶ 10} Hunter maintains that he has earned all the fees he received from
Strickler, but he has not provided an accounting to substantiate his claim. Hunter
stipulates that if called as a witness, Strickler would testify that he requested an
accounting and a refund of some or all of his fees. Despite Hunter’s belief that he
has earned the fees he has received in this case, Hunter has stipulated that if and
when Strickler seeks binding fee arbitration through the Columbus Bar
Association’s fee-arbitration program, he will immediately agree to participate.
Hunter further stipulated that his conduct harmed Strickler by delaying his case
for many months, causing him to obtain new counsel, and depriving him of the
full value of the fees paid to Hunter.
          {¶ 11} The parties have stipulated and the board has found that these facts
clearly and convincingly demonstrate violations of Prof.Cond.R. 1.1, 1.3, 1.4, and
8.4(h).
                                       Count Four
          {¶ 12} Between April and June 2010, Hunter held client funds that should
have been in his client trust account. On two occasions, however, Hunter wrote
checks that caused the account to become overdrawn—once by $298.17 and
another time by $38.88. Hunter stipulates that he did not maintain adequate
accounting procedures and reconciliation methods to prevent such overdrafts and
that his conduct violated Prof.Cond.R. 1.15(a) (requiring a lawyer to hold
property of clients separate from the lawyer’s own property in an interest-bearing
client trust account) and 8.4(h).
                            Findings of Fact and Misconduct
          {¶ 13} We adopt the facts and findings of misconduct as stipulated by the
parties and found by the board.           The board has dismissed several alleged
violations for lack of sufficient evidence. We find, however, that the parties have
also failed to submit any evidence tending to demonstrate that respondent has
violated     Prof.Cond.R.    1.16(d)     (requiring   a   lawyer   withdrawing   from




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representation to take steps reasonably practicable to protect a client’s interest)
and 1.16(e) (requiring a lawyer to promptly refund any unearned fee upon the
lawyer’s withdrawal from employment) as charged in count two of the amended
complaint. Therefore, we dismiss those alleged violations as well.
                                     Sanction
       {¶ 14} 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 Section 10(B) 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.
       {¶ 15} The parties have stipulated and the board has found that the
aggravating factors in this case are a dishonest or selfish motive, a pattern of
misconduct involving multiple offenses, and the vulnerability of and resulting
harm to victims of the misconduct. See BCGD Proc.Reg. 10(B)(1)(b), (c), (d),
and (h). Mitigating factors include the absence of a prior disciplinary record, full
and free disclosure to the board, a cooperative attitude toward the disciplinary
proceeding, and the imposition of other penalties or sanctions in Hunter’s criminal
case. See BCGD Proc.Reg. 10(B)(2)(a), (d), and (f).
       {¶ 16} Citing his acceptance of responsibility for his actions and his
cooperation in this disciplinary proceeding, Hunter argues that an 18-month
suspension is the appropriate sanction for his misconduct. But Hunter offers no
caselaw to support his requested sanction.
       {¶ 17} Relator observes: “ It is not a minor, harmless event when a * * *
lawyer betrays the trust placed in him by the courts, the profession and the public.



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If a lawyer defending people accused of crime becomes enmeshed in a criminal
enterprise himself, it is a stain upon the profession and a detriment to the public’s
view of lawyers.”
       {¶ 18} Relator cites a number of cases imposing sanctions on attorneys
who have engaged in criminal conduct, ranging from two years to permanent
disbarment. See Cincinnati Bar Assn. v. Zins, 116 Ohio St.3d 1, 2007-Ohio-5263,
875 N.E.2d 941, ¶ 14 (imposing a two-year suspension with no credit for time
served under an interim felony suspension for an attorney convicted of identity
fraud); Disciplinary Counsel v. Stern, 106 Ohio St.3d 266, 2005-Ohio-4804, 834
N.E.2d 351 ¶ 8 (permanently disbarring an attorney convicted of federal drug
crimes, maliciously damaging a building by fire, and money laundering).
       {¶ 19} The majority of opinions cited by relator, however, imposed
indefinite suspensions for similar criminal conduct. See Disciplinary Counsel v.
Smith, 128 Ohio St.3d 390, 2011-Ohio-957, 944 N.E.2d 1166, ¶ 6, 10 (imposing
an indefinite suspension with credit for time served on an attorney convicted of
conspiracy to defraud the IRS, making false tax returns, and corruptly
endeavoring to obstruct and impede an IRS investigation. Reinstatement was
conditioned on the completion of federal supervised release, execution of a final
agreement to pay restitution, and completion of federal supervised release);
Disciplinary Counsel v. Zapor, 127 Ohio St.3d 372, 2010-Ohio-5769, 939 N.E.2d
1230, ¶ 12 (imposing an indefinite suspension and conditioning reinstatement on
the extension of and compliance with an Ohio Lawyers Assistance Program
contract, for an attorney convicted of felony theft from a ward’s account);
Cincinnati Bar Assn. v. Kellogg, 126 Ohio St.3d 360, 2010-Ohio-3285, 933
N.E.2d 1085, ¶ 2, 26 (imposing an indefinite suspension and requirement that
federal supervised release be completed prior to any petition for reinstatement for
attorney convicted of money laundering, conspiracy to commit money laundering,
and conspiracy to obstruct proceedings before both the United States Federal




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Trade Commission and the Food and Drug Administration); Disciplinary Counsel
v. Gittinger, 125 Ohio St.3d 467, 2010-Ohio-1830, 929 N.E.2d 410, ¶ 33, 35, 49
(imposing an indefinite suspension with credit for time served under an interim
felony suspension and conditioning reinstatement on completion of supervised
release for an attorney convicted of money laundering and conspiracy to commit
bank fraud); and Disciplinary Counsel v. Bennett, 124 Ohio St.3d 314, 2010-
Ohio-313, 921 N.E.2d 1064, ¶ 2, 28 (imposing an indefinite suspension, with
credit for time served under an interim felony suspension, and conditioning
reinstatement on completion of supervised release for an attorney convicted of
illegally structuring currency transactions to evade taxation).
       {¶ 20} The panel recommended that Hunter be indefinitely suspended
from the practice of law in Ohio and that reinstatement be contingent on his
successful completion of supervised release and his payment of any restitution
ordered by an arbitrator of the Columbus Bar Association’s fee-arbitration
program. The board adopted the panel’s recommended sanction but recommends
that respondent be required to make “restitution to persons harmed by
Respondent’s misconduct,” rather than leave the issue of restitution to an
arbitrator. Neither party has objected to the board’s recommendation.
       {¶ 21} Having      considered    respondent’s    conduct,   the   applicable
aggravating and mitigating factors, and the sanctions imposed for similar
misconduct, we conclude that an indefinite suspension, with reinstatement
conditioned upon completion of Hunter’s federal supervised release and the
payment of restitution to persons harmed by his misconduct, is the appropriate
sanction for Hunter’s ethical violations.
       {¶ 22} Accordingly, Kyle Lee Hunter is indefinitely suspended from the
practice of law in Ohio and ordered to make restitution to Charles Brian Strickler
III of his entire $2,000 retainer and reimburse the Clients’ Security Fund for the




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total amount of any awards paid by the fund to former clients of respondent as a
result of his misconduct in this case. Costs are taxed to respondent.
                                                            Judgment accordingly.
       O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
                              __________________
       Jeffrey C. Rogers, Bruce A. Campbell, Bar Counsel, and A. Alysha Clous,
Assistant Bar Counsel, for relator.
       Kyle Lee Hunter, pro se.
                            ______________________




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