[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Turner, Slip Opinion No. 2014-Ohio-3158.]




                                        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. 2014-OHIO-3158
                        DISCIPLINARY COUNSEL v. TURNER.
   [Until this opinion appears in the Ohio Official Reports advance sheets,
                it may be cited as Disciplinary Counsel v. Turner,
                         Slip Opinion No. 2014-Ohio-3158.]
Attorneys—Misconduct—Deposit of personal funds into client trust account—
        Failure to cooperate in disciplinary investigation—Two-year suspension,
        all stayed on condition.
     (No. 2013-1252—Submitted October 9, 2013—Decided July 23, 2014.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                  Discipline of the Supreme Court, No. 2012-078.
                               ____________________
        Per Curiam.
        {¶ 1} Talbert Randall Turner of Monroe, Ohio, Attorney Registration No.
0016670, was admitted to the practice of law in Ohio in 1983.
        {¶ 2} On March 19, 1998, we sanctioned Turner for failing to comply with
the continuing-legal-education (“CLE”) requirements of Gov.Bar R. X for the
1995-1996 reporting period. In re Continuing Legal Edn. Suspension of Turner,
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81 Ohio St.3d 1476, 691 N.E.2d 294 (1998). In 1999, the Butler County Bar
Association filed a formal disciplinary complaint against Turner. While that
matter was pending, Turner decided to cease the practice of law and seek other
business opportunities, but he failed to change his registration to reflect that his
license was inactive. We also suspended his license on April 5, 2000, for his
failure to comply with CLE requirements.           In re Continuing Legal Edn.
Suspension of Turner, 88 Ohio St.3d 1463, 726 N.E.2d 1001 (2000).
       {¶ 3} On May 31, 2000, we imposed a six-month conditionally stayed
suspension for Turner’s neglect of three separate probate matters and failure to
deposit client funds into his client trust account. Butler Cty. Bar Assn. v. Turner,
89 Ohio St.3d 119, 729 N.E.2d 347 (2000). And on December 6, 2005, we
suspended his license for his failure to timely register for the 2005-2007
biennium. In re Attorney Registration Suspension of Turner, 107 Ohio St.3d
1431, 2005-Ohio-6408, 838 N.E.2d 671.
       {¶ 4} Turner eventually decided to resume the practice of law, and we
reinstated his license on August 24, 2006. In re Turner, 110 Ohio St.3d 1470,
2006-Ohio-4361, 852 N.E.2d 1217; see also In re Turner, 110 Ohio St.3d 1480,
2006-Ohio-4761, 854 N.E.2d 207 (reflecting that his 2005 registration suspension
was cured on August 4, 2006). We suspended Turner again on November 2, 2011,
for his failure to register as an attorney for the 2011-2012 biennium, although we
reinstated his license two days later. In re Attorney Registration Suspension of
Turner, 130 Ohio St.3d 1420, 2011-Ohio-5627, 956 N.E.2d 310.
       {¶ 5} In October 2012, relator, disciplinary counsel, charged Turner with
misconduct arising from the deposit of personal funds into his client trust account,
use of that account for his personal and business expenses, and failure to
cooperate in the ensuing investigation. The parties submitted stipulated facts,
misconduct, and aggravating and mitigating factors and agreed that a two-year




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suspension, all stayed on the condition that Turner engage in no further
misconduct, is the appropriate sanction for his current ethical violations.
       {¶ 6} After conducting a hearing at which Turner testified, a panel of the
Board of Commissioners on Grievances and Discipline issued a report adopting
the parties’ stipulations and recommended sanction.            The board adopted the
panel’s report in its entirety. We adopt the findings and recommendation of the
board and suspend Turner for two years, all stayed on the condition that he
engage in no further misconduct.
                                    Misconduct
                      Count One—Trust-Account Violations
       {¶ 7} Turner maintains a client trust account at PNC Bank. From January
2007 to October 2011, Turner deposited more than $250,000 of his own money
into his client trust account and used the account only to pay his personal and
business expenses. Relator did not allege that this account ever contained any
client funds during this time. Turner acknowledges that his use of the account
was improper and reports that he no longer uses it for personal and business
purposes.
       {¶ 8} The parties stipulated, the board found, and we agree that this
conduct violated Prof.Cond.R. 1.15(b) (prohibiting a lawyer from depositing his
or her own funds in a client trust account except to pay or obtain a waiver of bank
service charges) and 8.4(h) (prohibiting a lawyer from engaging in conduct that
adversely reflects on the lawyer’s fitness to practice law).
                         Count Two—Failure to Cooperate
       {¶ 9} On July 14, 2011, PNC Bank notified relator that Turner’s client
trust account had a negative balance. The first two letters of inquiry that relator
sent to Turner were returned by the postal service. Relator sent three more letters
by regular mail to various addresses in relator’s file. All went unanswered. On




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September 27, 2011, Turner’s wife signed for a letter of inquiry that relator had
sent by certified mail to his home.
       {¶ 10} Turner responded by letter dated October 11, 2011, and soon
thereafter, relator subpoenaed his client-trust-account records from PNC Bank.
Based on the information obtained from those bank records, relator requested
additional information from Turner in December 2011 regarding specific trust-
account transactions. And in January 2012, relator expanded that request to
include copies of Turner’s 2007-2010 income tax returns and information
regarding additional transactions.    When Turner failed to respond to those
requests, relator subpoenaed him for deposition.
       {¶ 11} Before the scheduled deposition, Turner submitted a written
response to relator’s inquiries and stated that he would “promptly” provide copies
of the requested tax returns, but he did not follow through on that promise. Nor
did he respond to two additional letters, one of which contained an official form
that, if executed, would have permitted relator to obtain copies of his tax returns
directly from the Internal Revenue Service.
       {¶ 12} On June 14, 2012, Turner left a voice message for relator stating
that he would provide the requested tax returns in the next week and a half. In a
June 26, 2012 letter, relator advised him that his failure to provide the records by
July 6, 2012, would result in the filing of a disciplinary complaint against him.
Turner did not provide the records.
       {¶ 13} In late July, relator mailed a draft complaint to Turner, but it was
returned unclaimed. A formal complaint was filed on August 23. Seven days
later, relator received a letter from Turner, along with copies of his 2004 and 2006
tax returns. But these were not the forms that relator had requested. Turner
finally provided the requested tax returns on January 4, 2013—a full year after
relator had requested them. Relator stipulated that those returns did not reveal
any additional misconduct.




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                                 January Term, 2014




        {¶ 14} The parties stipulated, the board found, and we agree that this
conduct violated Prof.Cond.R. 8.1(b) (prohibiting a lawyer from knowingly
failing to respond to a demand for information by a disciplinary authority during
an investigation) and Gov.Bar R. V(4)(G) (prohibiting a lawyer from neglecting
or refusing to assist in a disciplinary investigation).
                                       Sanction
        {¶ 15} 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.
        {¶ 16} The parties stipulated and the board found that Turner has a prior
disciplinary record and that he initially failed to cooperate with relator’s
investigation into his current misconduct. See BCGD Proc.Reg. 10(B)(1)(a) and
(e). As mitigating factors, the parties stipulated and the board found that Turner
did not have a selfish or dishonest motive and that he cooperated in the
disciplinary proceedings after relator filed his formal complaint, making a full and
free disclosure to the board. See BCGD Proc.Reg. 10(B)(2)(b) and (d). The
board also credited Turner’s good character and reputation, as demonstrated by
three letters from attorneys in his community and his self-reported community
involvement. See BCGD Proc.Reg. 10(B)(2)(e).
        {¶ 17} The parties stipulated and the board found that the appropriate
sanction for Turner’s misconduct is a two-year suspension, fully stayed on the
condition that he engage in no further misconduct. In support of that sanction,
they cite Disciplinary Counsel v. Simon, 128 Ohio St.3d 359, 2011-Ohio-627, 944
N.E.2d 660.



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          {¶ 18} In Simon, we adopted a consent-to-discipline agreement and
imposed a one-year fully stayed suspension for an attorney who used his client
trust account as a personal and business account for almost four years and failed
to provide his tax returns to relator in a timely manner. Simon’s misconduct was
arguably more egregious than Turner’s because he commingled personal and
client funds in the account, while Turner’s account is not alleged to have
contained any client funds. But unlike Simon, Turner has a history of prior
discipline, including two attorney-registration suspensions and a six-month stayed
suspension for violating three Disciplinary Rules of the former Code of
Professional Responsibility.1      For that reason, we agree that his misconduct
requires a greater sanction than the one-year stayed suspension we imposed in
Simon, and we adopt the board’s recommendation of a two-year suspension,
stayed on the condition that Turner engage in no further misconduct.
          {¶ 19} Accordingly, Talbert Randall Turner is suspended for two years, all
stayed on the condition that he engage in no further misconduct. If Turner does
not comply with the condition of the stay, the stay will be lifted and he will serve
the full two-year suspension. Costs are taxed to Turner.
                                                                 Judgment accordingly.
          O’CONNOR, C.J., and PFEIFER, O’DONNELL, FRENCH, and O’NEILL, JJ.,
concur.
          LANZINGER, J., dissents and would impose an actual suspension of one
year.
          KENNEDY, J., not participating.
                               ____________________



1
  He also had a prior CLE suspension in 2000 and a prior CLE monetary sanction in 1998, but
Gov.Bar R. X(5)(C) provides that CLE sanctions shall not be considered in the imposition of
sanctions for attorney misconduct.




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       Scott J. Drexel, Disciplinary Counsel, and Karen H. Osmond, Assistant
Disciplinary Counsel, for relator.
       Talbert Randall Turner, pro se.
                          _________________________




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