[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Cincinnati Bar Assn. v. Weber, Slip Opinion No. 2017-Ohio-9243.]




                                        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. 2017-OHIO-9243
                    CINCINNATI BAR ASSOCIATION v. WEBER.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
        may be cited as Cincinnati Bar Assn. v. Weber, Slip Opinion No.
                                   2017-Ohio-9243.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct and the
        Rules for the Government of the Bar—Two-year suspension with second
        year stayed on conditions.
(No. 2017-1084—Submitted September 13, 2017—Decided December 28, 2017.)
   ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
                                 Court, No. 2016-057.
                             _______________________
        Per Curiam.
        {¶ 1} Respondent, John Patrick Weber, last known business address in
Cincinnati, Ohio, Attorney Registration No. 0076164, was admitted to the practice
of law in Ohio in 2003. On December 10, 2015, we suspended his license for failing
to comply with the continuing-legal-education (“CLE”) requirements of Gov.Bar
                            SUPREME COURT OF OHIO




R. X. We reinstated him on January 25, 2016. In re Weber, 144 Ohio St.3d 1466,
2016-Ohio-240, 44 N.E.3d 293.
       {¶ 2} In November 2016, relator, Cincinnati Bar Association, charged
Weber with practicing law during his CLE suspension and other professional
misconduct. Weber initially participated in the disciplinary process by meeting
with relator, appearing for a deposition, and answering the original complaint.
However, he failed to appear for his disciplinary hearing.          The Board of
Professional Conduct concluded that he engaged in the charged misconduct and
recommends that we suspend him for two years, with the second year stayed on
conditions. Neither party has objected to the board’s recommendation.
       {¶ 3} Based on our review of the record, we adopt the board’s findings of
misconduct and recommended sanction.
                                   Misconduct
               Count I—Practicing while under a CLE suspension
       {¶ 4} As noted above, we suspended Weber on December 10, 2015, for
failing to complete his required number of CLE hours. This court sent notice of the
suspension to the address that Weber had registered with the Office of Attorney
Services. Weber, however, had moved in 2011 and had failed to advise the court
of his new address.
       {¶ 5} During his disciplinary proceedings, Weber admitted that in early
January 2016—while he was under suspension but before receiving notice of the
suspension—he had represented multiple clients in Hamilton County courts. Based
on this conduct, the board found that by failing to notify the Office of Attorney
Services of changes to his contact information, he violated Gov.Bar R. VI(4)(B)
(requiring attorneys to notify the Office of Attorney Services of any change in the
information recorded on their certificates of registration) and that by representing
clients while under suspension, he engaged in the unauthorized practice of law, see
Gov.Bar R. VII(2)(A)(3)(d) (defining the unauthorized practice of law as rendering




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                                   January Term, 2017




legal services for another by any person admitted to the practice of law in Ohio
while the person is suspended for failure to satisfy CLE requirements); Gov.Bar R.
VII(2)(A)(4) (defining the unauthorized practice of law as the holding out to the
public or otherwise representing oneself as authorized to practice law in Ohio by a
person not so authorized); Prof.Cond.R. 5.5(a) (prohibiting a lawyer from
practicing law in a jurisdiction in violation of the regulation of the legal profession
in that jurisdiction).
                         Count II—Client-trust-account violations
        {¶ 6} At Weber’s deposition, he testified that he had closed his client trust
account in 2013. However, at Weber’s disciplinary hearing, relator submitted
evidence showing that Weber’s trust account had, in fact, remained open, with a
running balance of $312.30. Relator also submitted evidence showing that when
Weber registered for the 2015-2017 biennium, he failed to report the existence of
the trust account and instead indicated that he was not required to maintain such an
account. And one of relator’s investigators testified that during the disciplinary
process, Weber admitted that he had (1) received flat fees from the clients that he
had represented while under his CLE suspension and (2) received those fees in
advance of completing the work. Weber’s trust-account records, however, show
that he did not deposit any of those client funds into the account.
        {¶ 7} Accordingly, the board found that Weber violated Gov.Bar R.
VI(4)(D) (requiring attorneys to provide information about their client trust
accounts—or as to the basis for any exemption from maintaining such an account—
on their certificates of registration) and Prof.Cond.R. 1.15(a) (requiring a lawyer to
hold property of clients in an interest-bearing client trust account, separate from the
lawyer’s own property) and 1.15(c) (requiring a lawyer to deposit into a client trust
account legal fees and expenses that have been paid in advance).




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                        Count III—Malpractice insurance
       {¶ 8} During the disciplinary proceedings, Weber also acknowledged that
he had not maintained malpractice insurance since 2014 and that he had failed to
notify his clients of that fact in writing. Weber therefore admitted and the board
found that he had violated Prof.Cond.R. 1.4(c) (requiring a lawyer to inform a client
if the lawyer does not maintain professional-liability insurance and obtain a signed
acknowledgment of that notice from the client).
       {¶ 9} We adopt the board’s findings of misconduct in counts I, II, and III.
                                       Sanction
       {¶ 10} When imposing sanctions for attorney misconduct, we consider
several 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.
                        Aggravating and mitigating factors
       {¶ 11} As aggravating factors, the board found that Weber has a prior
disciplinary record, committed multiple offenses, and failed to fully cooperate in
the disciplinary process. See Gov.Bar R. V(13)(B)(1), (4), and (5). In mitigation,
the board determined that he lacked a dishonest or selfish motive. See Gov.Bar R.
V(13)(C)(2).
                               Applicable precedent
       {¶ 12} We have recognized that “[t]he normal penalty for continuing to
practice law while under suspension is disbarment.” Disciplinary Counsel v.
Koury, 77 Ohio St.3d 433, 436, 674 N.E.2d 1371 (1997). The board, however,
recommends that we suspend Weber for two years, with the second year
conditionally stayed, citing a number of cases in which we imposed lesser sanctions
than disbarment on attorneys who engaged in the practice of law while under a CLE
or attorney-registration suspension.




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                                January Term, 2017




       {¶ 13} For example, the board cited Disciplinary Counsel v. Seabrook, 133
Ohio St.3d 97, 2012-Ohio-3933, 975 N.E.2d 1013, in which an attorney appeared
in court on behalf of two separate clients during his attorney-registration suspension
and failed to initially respond to the relator’s inquiries about the misconduct. As
an aggravating factor, the attorney had two prior attorney-registration suspensions.
In mitigation, the attorney’s misconduct did not harm his clients and he did not act
with a dishonest or selfish motive. Indeed, we noted that the attorney’s misconduct
was due to his own lack of diligence, which had continued throughout the
disciplinary proceedings. Id. at ¶ 9, 14. Based on these facts, we suspended him
for two years, with the second year stayed on conditions. Id. at ¶ 15.
       {¶ 14} The board also cited Disciplinary Counsel v. Eisler, 143 Ohio St.3d
51, 2015-Ohio-967, 34 N.E.3d 99, in which an attorney appeared and presented oral
argument before a court of appeals while under a CLE suspension. In mitigation,
the attorney engaged in only the one instance of misconduct and acknowledged the
wrongful nature of his actions. But as aggravating factors, he had three prior
attorney-registration suspensions, he acted with a dishonest and selfish motive by
making a conscious decision to appear before the court while knowing that his
license was suspended, and he failed to appear for his disciplinary hearing. Id. at
¶ 14. As in Seabrook, we imposed a two-year suspension, with the second year
conditionally stayed. Id. at ¶ 18.
       {¶ 15} In this case, Weber not only practiced law while under a CLE
suspension but also committed other professional misconduct. However, there is
no evidence that he harmed any of his clients or that he acted with a dishonest or
selfish motive. Indeed, the board found that after he learned about this suspension,
he took immediate actions to resolve his CLE deficiencies and reinstate his license.
We have previously considered such mitigating conduct to justify a less severe
sanction. See, e.g., Disciplinary Counsel v. Bancsi, 79 Ohio St.3d 392, 683 N.E.2d
1072 (1997) (imposing a one-year suspension with six months stayed on an attorney




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who knowingly practiced law while under a CLE suspension when mitigating
factors included the attorney’s prompt effort to cure the CLE deficiency and short
duration of his suspension).
       {¶ 16} Because Weber failed to appear for his disciplinary hearing, the
board agreed to increase relator’s originally recommended sanction from a one-
year suspension with six months conditionally stayed to a two-year suspension with
one year conditionally stayed. Considering Weber’s misconduct, the mitigating
and aggravating factors, and the sanctions imposed in comparable cases, including
Eisler and Seabrook, we conclude that the board struck the proper balance. We
therefore adopt the board’s recommended sanction.
                                     Conclusion
       {¶ 17} For the reasons explained above, John Patrick Weber is suspended
from the practice of law in Ohio for two years, with the second year stayed on the
conditions that (1) within 90 days of this court’s disciplinary order, he provide proof
to relator that he properly distributed the remaining funds in his client trust account
and (2) he commit no further misconduct. If Weber fails to comply with a condition
of the stay, the stay will be lifted and he will serve the full two-year suspension.
We condition any reinstatement on Weber’s providing proof that he completed six
hours of CLE on client-trust-account management, in addition to complying with
the other requirements in Gov.Bar R. X. Costs are taxed to Weber.
                                                              Judgment accordingly.
       O’CONNOR, C.J., and KENNEDY, FRENCH, O’NEILL, FISCHER, and DEWINE,
JJ., concur.
       O’DONNELL, J., dissents, with an opinion.
                                _________________
       O’DONNELL, J., dissenting.
       {¶ 18} Respectfully, I dissent.




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       {¶ 19} Respondent not only practiced law while under a continuing legal
education suspension but also failed to notify the Office of Attorney Services of
changes to his contact information and testified falsely that he had closed his
IOLTA account when in fact he had not done so. And he concealed that fact by
failing to report it when he registered in 2015. In addition, he received client fees
while under suspension and failed to deposit those fees into his client trust account,
likely in furtherance of his concealment of his failure to close it.
       {¶ 20} This is not conduct warranting a stayed suspension. I would suspend
respondent for a period of 24 months.
                                _________________
       Rosemary D. Welsh, Amy S. Crotty, and Edwin W. Patterson III, Bar
Counsel, for relator.
       John P. Weber, pro se.
                                _________________




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