[Cite as Toledo Bar Assn. v. Scott, 129 Ohio St.3d 479, 2011-Ohio-4185.]




                        TOLEDO BAR ASSOCIATION v. SCOTT.
   [Cite as Toledo Bar Assn. v. Scott, 129 Ohio St.3d 479, 2011-Ohio-4185.]
Attorneys—Misconduct—Fabrication of evidence submitted to disciplinary
    authority—Failure to account for client funds—Failure to advise client of lack
    of malpractice insurance—Failure to deposit fees not yet earned into trust
    account—Engaging in conduct adversely reflecting on fitness to practice
    law—two-year suspension, one year stayed, on conditions.
(No. 2010-2265—Submitted February 16, 2011—Decided August 25, 2011.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                    Discipline of the Supreme Court, No. 10-016.
                                  __________________
        Per Curiam.
        {¶ 1} Respondent, Robert Bernal Scott, Attorney Registration No.
0073411, was admitted to the practice of law in Ohio in 2001. On February 8,
2010, the Toledo Bar Association, relator, filed a two-count complaint against
respondent. After a first amendment of the complaint on May 28, 2010, a second
amended complaint was filed on July 2, 2010, adding a third count.
        {¶ 2} On August 9, 2010, the parties submitted stipulations of fact and
misconduct for some of the allegations, and a panel of the Board of
Commissioners on Grievances and Discipline conducted a hearing on the
remaining allegations. The panel accepted the parties’ agreed stipulations, made
additional findings of fact and conclusions of law, and recommended that
respondent be suspended from the practice of law for one year, with six months of
the suspension stayed, upon conditions. The board adopted the panel’s findings
of fact, conclusions of law, and recommended sanction.
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       {¶ 3} On January 12, 2011, this court issued an order directing the
parties to show cause why the recommendation of the board should not be
confirmed by the court. The parties did not file objections to the show-cause
order. We adopt the board’s findings and conclusions that respondent violated
ethical standards incumbent on Ohio lawyers. However, we reject the board’s
recommended sanction. Although the board accepted the parties’ stipulations to
certain violations of the Ohio Rules of Professional Conduct, the stipulations do
not tell the entire story of misconduct in this case and the board’s reliance on our
precedent related to the stipulated violations is misplaced. For the reasons that
follow, we suspend respondent’s license to practice law in Ohio for two years,
with one year of the suspension stayed on the conditions set by the panel.
                                   Misconduct
                          Count 1 (The Jameson Matter)
       {¶ 4} Respondent stipulated that in 2007, he was hired by Lawrence
Jameson to represent him on a charge of aggravated murder. Prior to representing
Jameson, respondent had never tried a murder case. The parties stipulated that
Jameson signed a general power of attorney (“POA”) in favor of respondent and
gave respondent his ATM card and personal identification number.
       {¶ 5} Over the next several weeks, respondent made seven ATM
withdrawals of $500 each from Jameson’s bank account, none of which were
deposited into a trust account. In November 2007, respondent, using the POA,
closed Jameson’s 401(k) account and deposited $24,456 from that account into
his business account before he had earned a fee of that size based on his hourly
fee agreement with Jameson. Respondent also used the POA to gain access to
Jameson’s home, where he took possession of some of Jameson’s personal
property, including a pair of Cleveland Browns football tickets. Respondent
claimed that he had intended to use the tickets as evidence in Jameson’s trial.
However, respondent used the tickets to attend the game with a friend.



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         {¶ 6} During the representation, respondent also obtained possession of
Jameson’s 1983 Porsche 928 and a 1990 Cadillac Fleetwood by causing Jameson
to sign the backs of the titles to both vehicles as transferor. Respondent then
filled in his own name as transferee on both vehicles without any written
authorization from Jameson. Respondent then had a secretary notarize Jameson’s
signature on the titles, even though she had not seen Jameson sign them.
Respondent stipulated that he had failed to keep records of, or account to Jameson
for, the personal property he received.
         {¶ 7} Respondent stipulated that during the investigation into the
Jameson grievance, he had produced copies of hourly bills, claiming that they
were bills he had delivered to Jameson periodically during the representation. But
these documents were not copies of actual bills that respondent presented to
Jameson. Rather, respondent fabricated and submitted false documents for the
purpose of misleading the investigator. Included in the fabricated bills were
claims of time spent conferring with Jameson at the jail. However, for ten of
these entries, totaling 22 hours, the visitor log at the jail did not show respondent
signing in.
         {¶ 8} After deducting amounts expended on Jameson’s behalf,
respondent received, according to his attorney’s calculation, approximately
$21,900 in cash and other property in connection with his representation of
Jameson. Respondent stipulated that he had not adequately accounted for these
funds.
                           Count 2 (The Triplett Matter)
         {¶ 9} Respondent stipulated that he had been retained by the family of
Timothy Triplett to represent Triplett in an appeal of a criminal conviction in late
2007 or early 2008. At the time he was retained, respondent did not have a
malpractice insurance policy and did not provide his client with the notice
required by Prof.Cond.R. 1.4(c).



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                              Count 3 (Trust Account)
       {¶ 10} During December 2009 through February 2010, respondent
maintained a client trust account with Huntington Bank.          While respondent
maintained the account, he authorized debits of $40 per month to be paid to a
credit-card servicing company for its processing of credit-card charges by
respondent’s clients for fees payable to respondent. Respondent held client funds
in the account, but he failed to maintain adequate and accurate records of those
funds. During the first week of February 2010, despite the fact that respondent’s
trust account continued to hold client funds, the debits for the credit-card
company caused the account to become overdrawn. The bank issued a notice to
respondent that the account contained insufficient funds to meet further debits or
other demands on the account.
                               Stipulated Violations
       {¶ 11} The panel and board accepted the parties’ stipulations, and we
agree that the above conduct resulted in violations of the following disciplinary
rules: Prof.Cond.R. 1.15(c) (respondent failed to deposit fees paid in advance into
a trust account), 8.1(a) (respondent made a false statement of material fact in
connection with a disciplinary matter), 8.4(h) (by requesting a notary public to
notarize Jameson’s signature improperly, respondent engaged in conduct that
adversely reflects on his fitness to practice law), 1.15(a) (respondent failed to
adequately safeguard and to maintain adequate records of client funds and other
property), and 1.4(c) (respondent failed to notify his client that respondent had no
professional-liability insurance).
                           Aggravation and Mitigation
       {¶ 12} The panel found the following aggravating factors: multiple
offenses (BCGD Proc.Reg. 10(B)(1)(d)) and the submission of false evidence and
false statements during the disciplinary process (BCGD Proc.Reg. 10(B)(1)(f)).




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Further, the panel also concluded that the submission of false evidence and
statements implied a dishonest or selfish motive (BCGD Proc.Reg. 10(B)(1)(b)).
       {¶ 13} In mitigation, the panel adopted the parties’ stipulation that
respondent has no prior disciplinary record (BCGD Proc.Reg. 10(B)(2)(a)) and
that respondent has acknowledged his wrongful conduct. The panel also found a
timely good-faith effort to make restitution (BCGD Proc.Reg. 10(B)(2)(c)) and a
cooperative attitude after acknowledging the fabricated record (BCGD Proc.Reg.
10(B)(2)(d)).
                                    Sanction
       {¶ 14} When imposing sanctions for attorney misconduct, we consider all
relevant factors, including the duties violated by the lawyer in question 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.              Before making a
determination, we also weigh evidence of the aggravating and mitigating factors
listed in BCGD Proc.Reg. 10. See Lake Cty. Bar Assn. v. Troy, 121 Ohio St.3d
51, 2009-Ohio-502, 901 N.E.2d 809, ¶ 11.
       {¶ 15} As a sanction, respondent and relator jointly recommended a one-
year suspension with six months stayed upon the following conditions: respondent
shall work with a mentoring attorney for one year, the mentoring attorney and
respondent shall meet monthly, the mentor shall submit a quarterly report to
relator, and respondent shall take three hours of courses on law-office
management within the first six months of the suspension.             The board
recommends that we accept the stipulated sanction, but we decline to do so.
       {¶ 16} To determine the appropriate length of a suspension, we have
recognized that our primary purpose in imposing disciplinary sanctions is not to
punish the offender but to protect the public.         Cincinnati Bar Assn. v.
Schwieterman, 115 Ohio St.3d 1, 2007-Ohio-4266, 873 N.E.2d 810, ¶ 34, citing
Disciplinary Counsel v. O’Neill, 103 Ohio St.3d 204, 2004-Ohio-4704, 815



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N.E.2d 286, ¶ 53. We look to similar cases for the sanctions that are most
appropriate for similar misconduct. Disciplinary Counsel v. Jackson, 127 Ohio
St.3d 250, 2010-Ohio-5709, 938 N.E.2d 1021, ¶ 27.
        {¶ 17} If one were to read only the stipulated violations, the
recommended sanction would seem to align with the sanctions we previously
have imposed for similar violations. The facts as stipulated by the parties depict
misconduct of a very serious nature. Respondent used his client’s ATM card to
withdraw large sums of money for purposes unrelated to client services. Using
the power of attorney he caused his client to execute, respondent closed his
client’s retirement account and deposited over $24,000 from that account into
respondent’s own business account. Respondent took two Cleveland Browns
tickets from his client’s home and used them to attend a game with his friend.
        {¶ 18} Respondent also obtained possession of two motor vehicles, a
Porsche and a Cadillac, by causing his freelance secretary to commit fraud by
notarizing an affidavit without observing his client’s signature. Respondent did
all of this while his client was in jail on a murder charge. Moreover, respondent
lied to disciplinary authorities about how often he met with his client and
fabricated billing statements to mislead the investigator. Taken in totality, this
course of conduct falls far below the professional standards lawyers should
uphold and merits more than a six-month actual suspension from the practice of
law.
        {¶ 19} “Lawyers who choose to engage in fabrication of evidence, deceit,
misrepresentation of facts, and distortion of truth do so at their peril.” Cleveland
Bar Assn. v. McMahon, 114 Ohio St.3d 331, 2007-Ohio-3673, 872 N.E.2d 261, ¶
29.    Thus, although the board found that respondent actually collected less
compensation than he was entitled to receive under the fee agreement, the
credibility of respondent’s later documentation, cobbled from a self-serving
memory, is weak. The reality is that respondent’s use of his client’s ATM card



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and other personal effects had very little to do with compensation for legal
services.
       {¶ 20} The disciplinary panel adopted the parties’ stipulation that
respondent has acknowledged the wrongfulness of his conduct.              While this
acknowledgment is an important consideration, it does not change the deceitful
nature of respondent’s misconduct and the fact that he took advantage of a
vulnerable client. Respondent’s conduct amounted to more than just failing to
deposit fees into a trust account or failing to maintain records of his client’s funds
(although these are serious violations). His conduct was intentionally deceptive
and equates to stealing from his client.
       {¶ 21} Indeed, we have imposed substantial sanctions for attorneys who
have taken funds from their clients. In Disciplinary Counsel v. Blair, 128 Ohio
St.3d 384, 2011-Ohio-767, 944 N.E.2d 1161, we suspended an attorney from the
practice of law for two years with 18 months stayed on conditions because, in her
capacity as a court-appointed guardian, the attorney withdrew all of the ward’s
funds from her client’s trust account, bankrupting the ward, but did not use any of
those funds for the ward’s benefit. The attorney further authorized her staff to
prepare false affidavits. And in Dayton Bar Assn. v. Gross (1991), 62 Ohio St.3d
224, 581 N.E.2d 520, we indefinitely suspended an attorney who, pursuant to a
power of attorney, made a series of withdrawals from his mother’s bank account
without her knowledge or consent, used the funds to meet his personal financial
needs (eventually depleting her funds), and failed to pay her nursing-home bills.
       {¶ 22} Likewise, we have imposed suspensions greater than the one
imposed here on attorneys who have deceptively elicited funds from nonclients.
In Cincinnati Bar Assn. v. Farrell, 119 Ohio St.3d 529, 2008-Ohio-4540, 895
N.E.2d 800, we imposed a two-year suspension with one year stayed on
conditions for an attorney who forged his wife’s signature on a power of attorney
to obtain a line of credit and fabricated numerous documents to cover up his



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actions. In Northwest Ohio Bar Assn. v. Archer, 129 Ohio St.3d 204, 2011-Ohio-
3142, 951 N.E.2d 78, the court imposed a one-year suspension on an attorney who
not only allowed his malpractice insurance to lapse without informing his clients,
but also converted to his own use the taxes he had withheld from his secretary’s
wages.
                                    Conclusion
         {¶ 23} The practice of law is not a right, and our Rules of Professional
Conduct demand the highest standards of conduct from those in our profession.
McMahon, 114 Ohio St.3d 331, 2007-Ohio-3673, 872 N.E.2d 261, ¶ 29.
Respondent engaged in offenses that undermined the integrity of the legal
profession and indicated a selfish indifference to his professional obligations.
         {¶ 24} Having weighed the aggravating and mitigating factors in this case
as found by the board and having considered the sanctions previously imposed for
comparable conduct, we reject the parties’ stipulated sanction. Accordingly, we
suspend Robert Bernal Scott from the practice of law for two years, with the final
12 months stayed upon the following conditions: (1) respondent shall serve six
months of probation supervised by a monitor appointed by relator in accordance
with Gov.Bar R. V(9) and (2) in addition to respondent’s other CLE requirements
under Gov.Bar R. X(3)(G), respondent shall complete three hours of CLE in law-
office management within the first six months of his suspension. If respondent
fails to comply with these conditions, the stay will be lifted, and respondent shall
serve the entire two-year suspension. Costs are taxed to the respondent.
                                                             Judgment accordingly.
         O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
                               __________________
         Robison, Curphey & O’Connell and W. David Arnold; Michael J.
Manahan; and Jonathan B. Cherry, Bar Counsel, for relator.




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James D. Caruso, for respondent.
                   ______________________




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