[Cite as Cincinnati Bar Assn. v. Gilbert, 138 Ohio St.3d 218, 2014-Ohio-522.]




                    CINCINNATI BAR ASSOCIATION v. GILBERT.
 [Cite as Cincinnati Bar Assn. v. Gilbert, 138 Ohio St.3d 218, 2014-Ohio-522.]
Attorney misconduct, including practicing law while registered as an attorney on
          inactive status and neglecting client matters—One-year suspension, stayed
          on conditions.
     (No. 2013-0575—Submitted June 5, 2013—Decided February 20, 2014.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                     Discipline of the Supreme Court, No. 12-044.
                                ____________________
          Per Curiam.
          {¶ 1} Respondent, Jason Robert Gilbert of Fort Thomas, Kentucky,
Attorney Registration No. 0074044, was admitted to the practice of law in Ohio in
2001.
          {¶ 2} Relator, Cincinnati Bar Association, charged Gilbert with
professional misconduct for practicing law in Ohio while registered on inactive
status and for neglecting three client matters. Gilbert stipulated to the charged
misconduct, and the parties jointly recommended that he serve a one-year
suspension.       After a hearing, a three-member panel of the Board of
Commissioners on Grievances and Discipline determined that Gilbert had
committed most of the charged misconduct and recommended that he serve a one-
year suspension, stayed on conditions. The board adopted the panel’s findings
and recommended sanction, and neither party has filed objections to the board’s
report.
          {¶ 3} We adopt the board’s findings of fact and misconduct and suspend
Gilbert for one year, with the suspension stayed in its entirety on conditions.
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                                         Misconduct
        {¶ 4} Following graduation from law school in 2001, Gilbert took and
passed the Ohio bar exam but became employed as a Kentucky public defender.1
In 2002, Gilbert was admitted to the Kentucky bar, and in 2005, he registered for
inactive status in Ohio because he worked exclusively in Kentucky state courts.
After ten years as a public defender, Gilbert became dissatisfied with the work
and resigned.
        {¶ 5} In the autumn of 2011, Gilbert was contacted by the administrative
assistant to Michelle Wenker, a Cincinnati attorney who was in a nursing home
after suffering a stroke. Wenker’s assistant indicated that she needed clerical help
in Wenker’s office. Although Gilbert started out assisting only with Wenker’s
administrative matters, he eventually “drifted” into doing some legal work for her
clients. However, Gilbert’s only legal experience was ten years of public-sector
criminal-defense work, and he has since acknowledged that he was “grossly
unprepared” for general private practice.
        {¶ 6} In December 2011, Gilbert left Wenker’s office and became a tax
advisor. He reactivated his Ohio license in February 2012, and at the time of the
panel hearing, he was employed by a company in South Carolina reviewing
documents for discovery.
        {¶ 7} During the few months that Gilbert worked in Wenker’s office, he
committed professional misconduct in four matters. First, Gilbert filed an answer
and counterclaim on Wenker’s behalf in an Ohio civil proceeding against her,
even though he had not yet reactivated his Ohio license. The parties stipulated
and the board found that Gilbert violated Prof.Cond.R. 5.5(a) (prohibiting a



1. Gilbert explained at the panel hearing that Kentucky allows attorneys to practice as public
defenders if they are licensed in another state and take and pass the Kentucky bar exam within 18
months.




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lawyer from practicing law in a jurisdiction in violation of the regulation of the
legal profession in that jurisdiction). We agree with this conclusion.
       {¶ 8} Second, Gilbert met with a former client of Wenker’s to discuss
whether the client was entitled to money as a beneficiary of a life-insurance
policy, and he agreed to represent the client. But Gilbert then failed to resolve the
client’s question or return his phone calls. The parties stipulated and the board
found that Gilbert violated 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), and 5.5(a). We agree with the
conclusion.
       {¶ 9} The third and fourth client matters are similar.         In each case,
Gilbert met with former clients of Wenker’s about divorce-related issues and
collected a retainer to conduct further work, but he did not deposit the clients’
money into a client trust account. Although Gilbert did some work on each case,
he failed to communicate with the clients, and they eventually terminated his
services. Based on this conduct, the parties stipulated and the board found that
Gilbert engaged in two violations of Prof.Cond.R. 1.15 (requiring a lawyer to hold
property of clients in an interest-bearing client trust account, separate from the
lawyer’s own property) and two more violations each of Prof.Cond.R. 1.1, 1.3,
and 5.5(a). We agree that the violations occurred.
       {¶ 10} Relator also alleged that Gilbert violated Prof.Cond.R. 1.5 for
charging an excessive fee in one of the divorce-related matters, but the board
found that the evidence did not support a finding of a violation of this rule. We
agree and hereby dismiss that charge.
                                     Sanction
       {¶ 11} When imposing sanctions for attorney misconduct, we consider
several relevant factors, including the ethical duties violated, the actual injury
caused, the existence of any aggravating and mitigating factors listed in BCGD



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Proc.Reg. 10(B), 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;
Disciplinary Counsel v. Broeren, 115 Ohio St.3d 473, 2007-Ohio-5251, 875
N.E.2d 935, ¶ 21.      We have already identified Gilbert’s ethical violations.
Consideration of the remaining factors demonstrates that a one-year suspension,
stayed in its entirety on conditions, is reasonable and appropriate in this case.
                       1. Aggravating and mitigating factors
       {¶ 12} The board found, and we agree, that only one aggravating factor is
present—Gilbert committed multiple offenses. See BCGD Proc.Reg. 10(B)(1)(d).
In contrast, the mitigating factors are the absence of a disciplinary record in Ohio
or Kentucky, full and free disclosure to the disciplinary board and a cooperative
attitude toward the proceedings, and full restitution to the two clients from whom
Gilbert accepted retainers.     See BCGD Proc.Reg. 10(B)(2)(a), (c), and (d).
Gilbert also expressed significant remorse for his conduct, and he submitted two
character letters, including one from a Kentucky trial court judge who stated that
she had presided over cases involving Gilbert for five years and found his
character to be “beyond reproach.” Finally, the board noted that it was unable to
find evidence of a dishonest or selfish motive in Gilbert’s misconduct.
                              2. Applicable precedent
       {¶ 13} As the board noted, we have not had many cases involving an
attorney who practiced law while registered on inactive status—and even fewer
involving an attorney on inactive status who practiced incompetently or neglected
client matters. In Cincinnati Bar Assn. v. Bucciere, 121 Ohio St.3d 274, 2009-
Ohio-1156, 903 N.E.2d 640, an attorney mistakenly believed that his assistant had
arranged to register him for active status. He appeared in trial and appellate court
proceedings, attended a deposition, and agreed to participate in mediation to
resolve a dispute, all while his attorney-registration status was inactive. That
attorney had no prior discipline, lacked a dishonest or selfish motive, and




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cooperated in the disciplinary proceedings, and we accordingly issued a public
reprimand. Id. at ¶ 4-6.
       {¶ 14} In Disciplinary Counsel v. Motylinski, 134 Ohio St.3d 562, 2012-
Ohio-5779, 983 N.E.2d 1314, an attorney moved to the Virgin Islands and
changed the status of his license to inactive. However, he continued to work on
an Ohio case, including participating in a telephone pretrial conference with the
court and transmitting a settlement offer. Id. at ¶ 5-6. The attorney in Motylinski
also neglected the client matter, which resulted in other disciplinary-rule
violations. Id. at ¶ 7-8. In mitigation, he lacked a prior disciplinary record and
fully cooperated in the investigation, but he also acted with a dishonest motive by
hiding his inactive status in order to collect his fee. On that record, we sanctioned
the attorney with a stayed six-month suspension. Id. at ¶ 10-12.
       {¶ 15} Here, Gilbert engaged in the practice of law in four client matters
while on inactive status, and he has admitted that he was not adequately prepared
to handle three of those matters, which resulted in their neglect. Accordingly, a
harsher sanction than in Motylinski is warranted.        But given the facts and
mitigating factors, we agree with the board that Gilbert’s sanction should not be
much more severe than the sanction in Motylinski.
       {¶ 16} As the board concluded, the amount of legal work that Gilbert
actually performed while on inactive status was minimal, involving only the filing
of a standard pleading, holding office conferences with clients, and drafting
domestic-relations documents that Gilbert never gave to the client or filed in
court. Gilbert did not appear in court, attend any depositions, or make any
significant legal decisions.
       {¶ 17} In addition, there is no evidence indicating that Gilbert’s clients
were significantly harmed by his misconduct. As the cases cited in the board’s
report demonstrate, we have imposed relatively short, stayed suspensions on
lawyers who, like Gilbert, neglected multiple client matters but demonstrated the



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existence of significant mitigating factors that overwhelmingly outweighed the
few, if any, aggravating factors. See, e.g., Toledo Bar Assn. v. DiLabbio, 101
Ohio St.3d 147, 2004-Ohio-338, 803 N.E.2d 389 (stayed six-month suspension
for a lawyer who neglected three client matters, but whose case had only one
aggravating factor and several mitigating factors, including the absence of prior
discipline, absence of a selfish motive, restitution, and remorse); Cuyahoga Cty.
Bar Assn. v. Rutherford, 112 Ohio St.3d 159, 2006-Ohio-6526, 858 N.E.2d 417
(stayed six-month suspension for a lawyer who neglected three client matters and
failed to deposit unearned client funds in a trust account, but who had no prior
discipline, made full restitution, cooperated in the disciplinary investigation, and
had a mental disability that contributed to his misconduct).
                                    Conclusion
       {¶ 18} Having reviewed the record and the aggravating and mitigating
factors, and having considered the sanctions previously imposed in comparable
unauthorized-practice and client-neglect cases, we find that the board’s
recommended sanction is appropriate. Accordingly, Gilbert is hereby suspended
from the practice of law for one year, but the suspension is stayed on the
conditions that (1) he commit no further misconduct, (2) he pay the costs of these
proceedings before expiration of the one-year suspension, and (3) he notify relator
or the bar association in the venue where he practices and have that organization
provide a monitor to oversee his law practice in accordance with Gov.Bar R.
V(9), if he decides to practice law in Ohio during the stayed suspension. If
Gilbert fails to comply with the conditions of the stay, the stay will be lifted, and
he will serve the entire one-year suspension. Costs are taxed to Gilbert.
                                                               Judgment accordingly.
       O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
                             ____________________




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Christopher R. Heekin and Edwin W. Patterson III, for relator.
Jason Robert Gilbert, pro se.
                  _________________________




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