[Cite as Toledo Bar Assn. v. Hetzer, 137 Ohio St.3d 572, 2013-Ohio-5480.]




                       TOLEDO BAR ASSOCIATION v. HETZER.
  [Cite as Toledo Bar Assn. v. Hetzer, 137 Ohio St.3d 572, 2013-Ohio-5480.]
Attorney misconduct, including failing to maintain an accurate record of funds
        held for each client and failing to safeguard funds held in escrow—Public
        reprimand.
    (No. 2013-0567—Submitted June 5, 2013—Decided December 19, 2013.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                    Discipline of the Supreme Court, No. 12-004.
                                ____________________
        Per Curiam.
        {¶ 1} Respondent, Nicholas Wayne Hetzer of Sylvania, Ohio, Attorney
Registration No. 0031302, was admitted to the practice of law in Ohio in 1978. In
February 2012, a probable-cause panel of the Board of Commissioners on
Grievances and Discipline certified that there was probable cause for filing
relator’s three-count formal complaint, which alleged that Hetzer had committed
multiple violations of the Rules of Professional Conduct by (1) improperly
deducting his legal fee from marital funds he held in trust for a divorce client and
the client’s spouse, (2) failing to safeguard the remaining escrowed funds and
instead giving them directly to his client on the termination of their attorney-client
relationship, (3) failing to timely deposit client funds into his client trust account,
(4) failing to reconcile his client trust account on a monthly basis, and (5) failing
to maintain accurate accounting statements for his client trust account.
        {¶ 2} The parties submitted a timely consent-to-discipline agreement in
which Hetzer stipulated that he had committed the charged misconduct and the
parties agreed that a public reprimand was the appropriate sanction for his
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misconduct. The panel recommended that the agreement be adopted, but the
board rejected it and returned the matter to the panel for further proceedings.
        {¶ 3} The parties submitted stipulations of fact, misconduct, and
aggravating and mitigating factors. After conducting a hearing and receiving
additional evidence after the hearing regarding the disposition of the marital funds
distributed to Hetzer’s former client, the panel made findings of fact and
conclusions of law and recommended that Hetzer be publicly reprimanded for his
misconduct. The board adopted the findings, conclusions, and recommendation
of the panel. Having thoroughly reviewed the record, we adopt the board’s
findings of fact and misconduct and publicly reprimand Hetzer.
                                     Misconduct
        {¶ 4} Mark McKarus retained Hetzer on July 13, 2009, to represent him
in a domestic-relations matter. At that time, McKarus gave Hetzer a $10,000
retainer.   McKarus gave Hetzer an additional cash payment of $5,000 in
September 2009, though Hetzer had not requested it. Hetzer admitted that he
never deposited the $5,000 payment in his client trust account and that his receipt
of those funds is not reflected on the escrow summary sheet where he kept records
of the funds received from and expended on behalf of McKarus. He testified,
however, that McKarus “got full and complete credit for that [$]5,000 in
subsequent bills.” Hetzer also stipulated that he did not perform a monthly
reconciliation of his client trust account.
        {¶ 5} On October 26, 2009, McKarus gave Hetzer a $64,762.12 check
representing the proceeds from the sale of a marital asset—a boat. Hetzer did not
deposit that check until January 27, 2010—one day after McKarus gave him a
$5,400 check representing the proceeds from the sale of a Jeep, which was also a
marital asset. Hetzer testified that there was no reason for the delayed deposit
other than “general procrastination” and his belief that his relationship with
McKarus might soon end.




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       {¶ 6} McKarus terminated Hetzer’s representation on February 9, 2010.
That day, Hetzer wrote a $4,277.50 check to himself for the balance of his fees,
deducting that amount from the $70,162.12 in marital funds that he held on behalf
of McKarus and his spouse. In addition to admitting that he had deducted his fees
from the marital assets he held in trust, Hetzer admitted that he also had issued a
check for the remaining balance—$65,884.62—directly to McKarus.              Hetzer
testified that when he advised McKarus that the funds needed to be turned over to
his new counsel, McKarus insisted that Hetzer write the check out to him and that
he would deliver it to his new attorney. Stipulated exhibits submitted by the
parties following the panel hearing show that the full $70,162.12 was ultimately
deposited into the trust account of McKarus’s new counsel and that McKarus’s
spouse suffered no financial harm as a result of Hetzer’s conduct.
       {¶ 7} Hetzer acknowledged that his conduct was improper and stated
that if he was confronted with a similar situation in the future, he would handle
the matter differently. He suggested that he would get a pay-over order, transfer
the funds into opposing counsel’s trust account, or establish a separate account to
prevent the funds from going directly to the client.
       {¶ 8} Hetzer testified that he knew better than to withdraw his legal fees
from escrowed funds or release escrowed funds directly to his client but that his
actions were the result of anger, stupidity, and emotion. He stated that he was “so
exasperated” at the conclusion of his relationship with McKarus that he “just
wanted to close the chapter [on the] case” and so he had done “a very stupid thing
that [he] would not do again.”
       {¶ 9} The parties stipulated and the board found that Hetzer’s conduct
violated Prof.Cond.R. 1.15(a) (requiring a lawyer to maintain a record for each
bank account, maintain the current balance for each client, and perform a monthly
reconciliation), 1.15(e) (requiring a lawyer in possession of funds in which two or
more persons claim an interest to hold those funds in his client trust account until



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the dispute is resolved), and 1.3 (requiring a lawyer to act with reasonable
diligence in representing a client).
       {¶ 10} We adopt the board’s findings of fact and find that Hetzer violated
Prof.Cond.R. 1.3 by failing to timely deposit McKarus’s $5,000 payment and the
proceeds from the sale of marital assets into his client trust account and violated
Prof.Cond.R. 1.15(a) by failing to hold McKarus’s property in an interest-bearing
client trust account, separate from his own property.           He also violated
Prof.Cond.R. 1.15(a)(2)(ii) by failing to maintain an accurate record of the funds
he received on McKarus’s behalf, violated Prof.Cond.R. 1.15(a)(5) by failing to
reconcile his client trust account on a monthly basis, and twice violated
Prof.Cond.R. 1.15(e)—first, by paying his own fees with funds that he held in
escrow for the benefit of the McKaruses, and then, by releasing the remainder of
the escrowed funds directly to his client.
                                       Sanction
       {¶ 11} 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 BCGD Proc.Reg. 10(B). Disciplinary Counsel v. Broeren, 115 Ohio
St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21.
       {¶ 12} The parties stipulated that no aggravating factors exist in this case,
and the board found none. Mitigating factors include the facts that Hetzer does
not have a record of prior discipline, made full and free disclosure to the board
and maintained a cooperative attitude toward the disciplinary proceedings, and
submitted evidence of his strong character and reputation within the legal
community. See BCGD Proc.Reg. 10(B)(2)(a), (d), and (e). Letters from four
fellow attorneys generally describe Hetzer as a professional and competent




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attorney, and several note his volunteer service on the substance-abuse committee
of the Toledo Bar Association. A letter from Patricia Shordt Intagliata, director of
the pro bono program for the Toledo Bar Association, thanks Hetzer for his
service to the program.
       {¶ 13} Scott Mote, executive director of the Ohio Lawyers Assistance
Program (“OLAP”), submitted a letter to the panel, identifying Hetzer as a
personal friend and a key resource for OLAP in the northwestern part of the state.
He testified regarding Hetzer’s involvement in the Lawyers Assistance
Committee, a predecessor to OLAP, his participation in the formation of OLAP,
and his ongoing volunteer work with the organization.
       {¶ 14} Comparing the facts of this case to those in Cincinnati Bar Assn. v.
Helbling, 124 Ohio St.3d 510, 2010-Ohio-955, 924 N.E.2d 364, the parties urged
the panel to recommend a public reprimand for Hetzer’s misconduct. Helbling
had deposited client funds into his trust account and issued a check for litigation
expenses on behalf of the client. But the check was returned for insufficient funds
because Helbling had made several transfers of funds from his client trust account
to his business account before the check was presented for payment. Id. at ¶ 4-5.
We found that he violated Prof.Cond.R. 1.15(a)(2)(iv) by failing to maintain a
record of one client’s current balance and the trust account’s outstanding checks,
violated Prof.Cond.R. 1.15(a)(3)(ii) by failing to maintain a record of which
client’s funds were affected by each client-trust-account credit and debit, violated
Prof.Cond.R. 1.15(c) by failing to maintain a client advance for litigation
expenses in his client trust account, and violated Prof.Cond.R. 1.15(c) by causing
a portion of one client’s funds to cover the expenses of another client. Id. at ¶ 7.
We publicly reprimanded Helbling, noting that there were no aggravating factors
present and that mitigating factors included the absence of prior discipline, his
cooperative attitude and full disclosure to the board, and his immediate action to




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rectify the consequences of his misconduct. Id. at ¶ 8; see also BCGD Proc.Reg.
10(B)(2)(a), (c), and (d).
       {¶ 15} The panel and board found that this case is analogous to Helbling
and recommend that we publicly reprimand Hetzer for his misconduct. We adopt
the board’s reasoning and agree that a public reprimand is the appropriate
sanction for Hetzer’s misconduct.
       {¶ 16} Accordingly, Nicholas Wayne Hetzer is publicly reprimanded for
violating Prof.Cond.R. 1.3, 1.15(a), 1.15(a)(2)(ii), 1.15(a)(5), and 1.15(e). Costs
are taxed to Hetzer.
                                                            Judgment accordingly.
       O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
                              ____________________
       McKenny, Ernsberger & Grude, L.L.C., and David G. Grude; Law Offices
of Margelefsky & Mezinko, L.L.C., and Vincent S. Mezinko; and Michael A.
Bonfiglio, Bar Counsel, for relator.
       Reminger Co., L.P.A., Nicholas D. Satullo, and Jonathan H. Krol, for
respondent.
                             ________________________




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