[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Davis, Slip Opinion No. 2019-Ohio-1314.]




                                        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. 2019-OHIO-1314
                         DISCIPLINARY COUNSEL v. DAVIS.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
        may be cited as Disciplinary Counsel v. Davis, Slip Opinion No.
                                   2019-Ohio-1314.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct and the
        former Code of Professional Responsibility—Public reprimand.
    (No. 2018-1761—Submitted January 30, 2019—Decided April 10, 2019.)
   ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
                                 Court, No. 2018-028.
                             _______________________
        Per Curiam.
        {¶ 1} Respondent, David William Davis, of Bridgeport, Ohio, Attorney
Registration No. 019639, was admitted to the practice of law in Ohio in 1973.
Davis served for 32 years as a part-time judge of the Belmont County Court and for
30 years as a bankruptcy trustee.
                               SUPREME COURT OF OHIO




          {¶ 2} In 2017, Davis’s longtime bookkeeper was convicted of stealing
funds from Davis’s client trust account. Relator, disciplinary counsel, thereafter
charged Davis with failing to perform the required monthly reconciliations of his
client trust account and failing to adequately supervise his staff. Based on the
parties’ stipulations and Davis’s hearing testimony, a panel of the Board of
Professional Conduct found that he had engaged in the charged misconduct and
recommended that he be publicly reprimanded. The board issued a report adopting
the panel’s findings of fact, conclusions of law, and recommended sanction. The
parties have jointly waived objections and requested that we adopt the board’s
report.
          {¶ 3} Based on our review of the record, we adopt the board’s findings of
misconduct and agree that a public reprimand is the appropriate sanction in this
case.
                                     Misconduct
          {¶ 4} In 1980, Davis’s then law firm hired Jayne Sliva as a legal secretary.
In 2001, Davis established a solo law practice and retained Sliva to serve as his
secretary, bookkeeper, and office manager. In 2003, Sliva began stealing from
Davis. Specifically, Davis practiced bankruptcy law and received significant
amounts of cash payments from clients, either for legal fees or court costs.
Although Sliva recorded those payments on a client ledger, she regularly converted
all or a portion of the funds for her own use, rather than depositing the money into
Davis’s client trust account or his law firm’s general operating account. In other
words, Sliva skimmed money from client cash payments that she should have
deposited into one of Davis’s bank accounts.
          {¶ 5} In 2012, Sliva left Davis’s office to pursue other employment, and in
2014, he decided to merge his law practice with another attorney’s. In preparing to
close his solo practice, Davis audited his books and discovered that money was
missing from both his client trust account and his operating account. In January




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2015, he filed a police report, which led to the Ohio Attorney General’s office
conducting a forensic audit of the accounts. The attorney general determined that
between 2003 and 2012, Sliva had embezzled $185,365.75 from Davis: $125,948
that should have been deposited into his operating account and $59,417.75 that
should have been deposited into his client trust account.
        {¶ 6} In 2017, Sliva pleaded guilty to aggravated theft by deception and
tampering with records. The Belmont County Court of Common Pleas sentenced
her to 36 months of incarceration and ordered her to make restitution to Davis for
the amount stolen. In September 2017, Sliva paid Davis an initial $100,000. He
also received $10,000 from a bonding company.
        {¶ 7} During his disciplinary proceedings, Davis admitted that when Sliva
worked for him, he regularly reviewed the bank statements for his client trust
account but never conducted a monthly reconciliation of the account by comparing
the client ledgers with the client-trust-account registers and bank statements.
Accordingly, the parties stipulated and the board found that he violated
Prof.Cond.R. 1.15(a)(5) (requiring a lawyer to perform and retain a monthly
reconciliation of the records of funds being held on a client’s behalf) and former
DR 9-102(B)(3) (requiring a lawyer to maintain complete records of all client
property coming into the lawyer’s possession and render appropriate accounts to
each client). In addition, the parties stipulated and the board found that Davis failed
to adequately supervise Sliva in violation of Prof.Cond.R. 5.3(b) (requiring a
lawyer to make reasonable efforts to ensure that a nonlawyer employee’s conduct
is compatible with the professional obligations of the lawyer) and former DR 1-
102(A)(6) (prohibiting a lawyer from engaging in conduct that adversely reflects
on the lawyer’s fitness to practice law).1


1. Because Davis’s misconduct occurred both prior to and after February 1, 2007, the effective date
of the Rules of Professional Conduct, relator charged Davis under the former Code of Professional
Responsibility and the counterpart provisions of the current Rules of Professional Conduct.




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        {¶ 8} We agree with the board’s findings of misconduct.
                                          Sanction
        {¶ 9} When imposing sanctions for attorney misconduct, we consider all
relevant factors, including the ethical duties that the lawyer violated, the
aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions
imposed in similar cases.
        {¶ 10} The board found no aggravating factors in this case but several
mitigating factors. Specifically, Davis has a clean disciplinary record and lacked a
dishonest or selfish motive. See Gov.Bar R. V(13)(C)(1) and (2). He made a
timely, good-faith effort to rectify the consequences of his misconduct by
depositing $35,677.46 of his own money into his client trust account to make up
for the amount of unearned client funds still missing from the account. See Gov.Bar
R. V(13)(C)(3). He made full and free disclosures to relator and, as the board
found, “displayed an extremely cooperative attitude” toward the disciplinary
proceedings. See Gov.Bar R. V(13)(C)(4). He also provided 25 letters attesting to
his good character and reputation in the community, and he suffered other penalties
for his misconduct—namely, he used personal funds to balance his trust account.
See Gov.Bar R. V(13)(C)(5) and (6). Finally, the board noted that none of Davis’s
clients lost money as a result of his misconduct and that Davis and his current law
partner have implemented procedures to prevent theft from occurring in the future.
        {¶ 11} In proposing a sanction, the board reviewed three cases in which
attorneys had failed to adequately supervise their nonlawyer employees.                      In
Disciplinary Counsel v. Ball, 67 Ohio St.3d 401, 404, 618 N.E.2d 159 (1993), an
attorney “relinquished significant aspects of his probate practice” to his legal



However, the board concluded—and relator agreed—that Davis’s continuing course of conduct
from 2003 to 2012 constituted only two professional-conduct-rule violations as opposed to four
separate violations. See Disciplinary Counsel v. Crosby, 124 Ohio St.3d 226, 2009-Ohio-6763, 921
N.E.2d 225, ¶ 2, fn.1.




                                               4
                                 January Term, 2019




secretary, resulting in the attorney’s neglect of ten separate probate matters due to
the secretary’s failure to timely file documents in those cases. In addition, the
secretary misappropriated more than $200,000 from estate and guardianship
accounts for which Ball was the attorney or fiduciary. We concluded that the
attorney’s “total failure to supervise any work done by his nonlawyer employee”
required a six-month suspension from the practice of law. Id.
          {¶ 12} In Mahoning Cty. Bar Assn. v. Lavelle, 107 Ohio St.3d 92, 2005-
Ohio-5976, 836 N.E.2d 1214, we found that an attorney’s failure to supervise his
staff created an office environment allowing employees to alter and falsely notarize
documents. Specifically, the attorney “chose to remain oblivious to the improper
actions of the persons he hired, thereby violating the trust that his clients and others
placed in him and his office staff.” Id. at ¶ 29. In addition, the attorney neglected
a client’s domestic-relations case and failed to cooperate in the ensuing disciplinary
investigation. Based on this misconduct, we suspended the attorney for 18 months,
with 12 months conditionally stayed.
          {¶ 13} Finally, in Disciplinary Counsel v. Maley, 119 Ohio St.3d 217, 2008-
Ohio-3923, 893 N.E.2d 180, an attorney gave his secretary broad authority to use
the office credit card and work directly with clients. Consequently, the employee
prepared and filed pleadings without the attorney’s knowledge, and she used the
office credit card for personal purchases. We found that the attorney “either knew
or should have known that she was taking money from clients and performing legal
work for them,” id. at ¶ 14, and that “his lack of responsibility facilitated her
unauthorized practice of law,” id. at ¶ 22. In addition, the attorney failed to
maintain a client trust account and therefore regularly commingled client and
business funds. We suspended him for 18 months, with six months conditionally
stayed.
          {¶ 14} The facts here are much less egregious than those in Ball, Lavelle,
and Maley. As the board found, clients in those cases were detrimentally affected




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by their attorney’s actions but Davis’s “misplaced trust in his former employee
resulted in no harm to clients but significant harm to him.” Further, Ball, Lavelle,
and Maley involved professional misconduct more varied than Davis’s, which was
essentially limited to his failure to compare his client ledger sheets with monthly
bank statements.
       {¶ 15} The board also reviewed cases from outside Ohio, including In re
Ponder, 375 S.C. 525, 654 S.E.2d 533 (2007). In that matter, an attorney’s assistant
embezzled over $238,000 from the attorney’s trust account by forging the
attorney’s name to various checks drawn on the account over a two-year period.
The attorney had failed to review canceled checks from his trust account and to
perform monthly reconciliations of bank statements with trust-account records.
Like Davis, the attorney deposited his own funds into the trust account to cover the
shortages caused by his employee’s theft, and the attorney similarly had an
otherwise clean disciplinary record and fully cooperated in the disciplinary
investigation. The Supreme Court of South Carolina publicly reprimanded him for
the misconduct.
       {¶ 16} We agree with the board that the facts here are more comparable to
those in Ponder than to those in Ball, Lavelle, and Maley and that considering
Davis’s significant mitigating evidence, a public reprimand is the appropriate
sanction in this case.    We reiterate that although “[d]elegation of work to
nonlawyers is essential to the efficient operation of any law office,” “delegation of
duties cannot be tantamount to the relinquishment of responsibility by the lawyer”
and “[s]upervision is critical in order that the interests of clients are effectively
safeguarded.” Ball, 67 Ohio St.3d at 404, 618 N.E.2d 159.
                                    Conclusion
       {¶ 17} David William Davis is hereby publicly reprimanded for violating
Prof.Cond.R. 1.15(a)(5) and 5.3(b). Costs are taxed to Davis.
                                                             Judgment accordingly.




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                                January Term, 2019




       O’CONNOR, C.J., and KENNEDY, FRENCH, FISCHER, DEWINE, DONNELLY,
and STEWART, JJ., concur.
                               _________________
       Scott J. Drexel, Disciplinary Counsel, and Stacey Solochek Beckman,
Assistant Disciplinary Counsel, for relator.
       Charles J. Kettlewell, for respondent.
                               _________________




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