[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Thompson, Slip Opinion No. 2014-Ohio-2482.]




                                        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-2482
                      DISCIPLINARY COUNSEL v. THOMPSON.
   [Until this opinion appears in the Ohio Official Reports advance sheets,
              it may be cited as Disciplinary Counsel v. Thompson,
                         Slip Opinion No. 2014-Ohio-2482.]
Attorneys—Misconduct—Withdrawing funds from client trust account for
        personal and business use—Failure to timely withdraw earned fees from
        client trust account—Misappropriation of client funds—Two-year
        suspension, 18 months stayed with monitored probation.
     (No. 2013-1262—Submitted October 9, 2013—Decided June 12, 2014.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                  Discipline of the Supreme Court, No. 2012-092.
                               ____________________
        Per Curiam.
        {¶ 1} Respondent, Harold Lee Thompson of Columbus, Ohio, Attorney
Registration No. 0033253, was admitted to the practice of law in Ohio in 1975. In
March 1982, we publicly reprimanded Thompson based on findings that he had
withdrawn unearned funds from his client trust account to meet personal and
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office expenses and caused an overdraft of the account. Columbus Bar Assn. v.
Thompson, 69 Ohio St.2d 667, 433 N.E.2d 602 (1982).
       {¶ 2} On December 10, 2012, a probable-cause panel of the Board of
Commissioners on Grievances and Discipline certified to the board a three-count
complaint filed against Thompson by relator, disciplinary counsel.           In that
complaint, relator alleged that Thompson had violated the Rules of Professional
Conduct by using his client trust account as a personal and operating account,
failing to timely withdraw earned fees from that account, and misappropriating
client funds.
       {¶ 3} The parties entered into stipulations of fact, misconduct,
aggravation, and mitigation and recommended that Thompson be suspended from
the practice of law for two years, with 18 months stayed on the condition that he
successfully complete 18 months of probation.           At the hearing, they also
submitted Thompson’s testimony and 21 exhibits, 19 of which were stipulated.
       {¶ 4} The panel made findings of fact and conclusions of law and
recommended that we adopt the parties’ stipulated sanction. The board adopted
the panel’s report in its entirety. Having thoroughly reviewed the record, we adopt
the board’s findings of fact and conclusions of law and suspend Thompson for
two years with 18 months stayed on the condition that he serve an 18-month
period of monitored probation.
                                    Misconduct
   Count I—Use of Client Trust Account for Personal and Business Expenses
       {¶ 5} From December 2010 through April 2012, Thompson used his
client trust account to hold funds belonging to clients and third parties, but also
used it as if it were his personal bank account and law-office operating account.
He used the account to pay his law-office rent, his residential rent, the fee for his
office parking space, and credit-card and telephone bills. During this time he also
issued 77 separate checks to himself for amounts ranging from $25 to $26,750.




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He further deposited his personal funds into his client trust account, including
$9,600 from an advertising refund deposited on February 22, 2011.
        {¶ 6} The parties stipulated, the board found, and we agree that this
conduct violated Prof.Cond.R. 1.15(a) (requiring a lawyer to hold the property of
clients in an interest-bearing client trust account, separate from the lawyer’s own
property) and 8.4(h) (prohibiting a lawyer from engaging in conduct that
adversely reflects on the lawyer’s fitness to practice law).
               Count II—Failure to Timely Withdraw Earned Fees
        {¶ 7} From December 2010 through September 2011, Thompson settled
eight contingency-fee cases for gross settlement amounts ranging from $4,480 to
$129,340. He prepared a closing statement for each client that stated the total
amount of the settlement, expenses, and attorney fees, and the amount that the
client was entitled to receive. While he paid each client his or her share of the
settlement proceeds, he failed to promptly withdraw his own fees from his client
trust account. Instead, Thompson withdrew his fees using multiple checks issued
to himself and his creditors over a period of weeks or months in amounts ranging
from a few dollars to thousands of dollars.          Consequently, he commingled
personal and client funds in his client trust account. He also failed to maintain
appropriate accounting records regarding the ownership of client funds and earned
fees in the account, which resulted in four overdrafts of the account in September
2011.
        {¶ 8} The parties stipulated and the board found that this conduct
violated Prof.Cond.R. 1.15(a), 1.15(a)(2) (requiring a lawyer to maintain a record
for each client on whose behalf funds are held), 1.15(a)(3) (requiring a lawyer to
maintain a record for the lawyer’s client trust account, setting forth the name of
the account, the date, amount, and client affected by each credit and debit, and the
balance in the account), and 8.4(h).          We adopt these findings of fact and
misconduct.



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                           Count III—Misappropriation
       {¶ 9} On January 26, 2011, Thompson deposited a $100,000 settlement
check received on behalf of his client, A.G. Pursuant to his contingency-fee
agreement with A.G., Thompson was to receive a fee of $33,333, and A.G. was
entitled to receive $29,000 from the settlement proceeds. Because Thompson did
not distribute the $29,000 to A.G. until July 2011, the balance in his client trust
account should not have gone below that amount. But the balance in his client
trust account dropped as low as $25,467.15 in March 2011 and remained below
$29,000 from April through June 2011, when it reached a low of $6,556.47.
Thus, the parties have stipulated and the board has found that Thompson
misappropriated at least $22,443.53 in funds owed to A.G.
       {¶ 10} Thompson deposited a $29,000 check drawn on his operating
account into his client trust account on July 1, 2011. And on July 19, 2011, he
distributed $29,000 from his client trust account to A.G.
       {¶ 11} The parties stipulated and the board found that this conduct
violated Prof.Cond.R. 8.4(b) (prohibiting a lawyer from committing an illegal act
that reflects adversely on the lawyer’s honesty or trustworthiness), 8.4(c)
(prohibiting a lawyer from engaging in conduct involving dishonesty, fraud,
deceit, or misrepresentation), 8.4(d) (prohibiting a lawyer from engaging in
conduct that is prejudicial to the administration of justice), and 8.4(h). We adopt
these findings of fact and misconduct.
                                     Sanction
       {¶ 12} 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




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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.
       {¶ 13} Aggravating factors stipulated by the parties and found by the
board include Thompson’s prior disciplinary offense involving the same type of
conduct, his pattern of misconduct, and his multiple offenses.        See BCGD
Proc.Reg. 10(B)(1)(a), (c), and (d). The board also found that Thompson acted
with a dishonest or selfish motive.      See BCGD Proc.Reg. 10(B)(1)(b).      In
mitigation, the parties stipulated and the board agreed that Thompson timely made
restitution to the client affected by his misconduct and exhibited a cooperative
attitude toward the disciplinary proceedings. See BCGD Proc.Reg. 10(B)(2)(c)
and (d).   The board also found that Thompson had taken the initiative to
significantly upgrade and modify his financial-management system from the
antiquated paper-based system that exacerbated his misconduct. His new system
includes PC Law accounting software and the employment of an outside
accounting firm that can securely and remotely access and monitor his trust and
operating accounts.
       {¶ 14} Thompson voluntarily submitted to an evaluation by the Ohio
Lawyers Assistance Program (“OLAP”). Though he has not been diagnosed with
a mental disorder or substance-abuse issues, he entered into a two-year OLAP
contract and has received counseling to help him deal with stress.
       {¶ 15} The parties stipulated that a 24-month suspension with 18 months
stayed on the condition that upon Thompson’s return to practice law he will
successfully comply with and complete an 18-month period of probation with a
focus on the management of his client trust account. Of the cases cited by the
parties, the board found Disciplinary Counsel v. Riek, 125 Ohio St.3d 46, 2010-
Ohio-1556, 925 N.E.2d 980, to be most analogous to the facts of this case.
       {¶ 16} In Riek, we imposed an 18-month suspension with 12 months
stayed on the condition of no further misconduct for an attorney who commingled



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personal and client funds, paid personal expenses directly from his client trust
account, misappropriated client funds causing overdrafts on at least four
occasions, and then lied to a client about the reason a settlement check had been
dishonored. Id. at ¶ 4-8, 14. There were no aggravating factors present, but
mitigating factors included the absence of a prior disciplinary record, Riek’s full
and free disclosure to the board and cooperative attitude toward the proceedings,
and evidence of his good character apart from the charged misconduct. Id. at
¶ 11.
        {¶ 17} As the board notes, Thompson’s misconduct is more serious than
that of Riek because he has previously been disciplined for the same type of
misconduct. The definitive steps that Thompson has taken to prevent this type of
misconduct from occurring in the future, however, persuaded the board to adopt
the parties’ stipulated sanction.
        {¶ 18} Having considered Thompson’s misconduct, the aggravating and
mitigating factors present, and the sanctions we have imposed for comparable
misconduct, we agree that a two-year suspension with 18 months stayed on
conditions, including an 18-month period of monitored probation, is the
appropriate sanction in this case.
        {¶ 19} Accordingly, Harold Lee Thompson is suspended from the practice
of law in Ohio for two years. The last 18 months of that suspension, however,
will be stayed on the conditions that upon reinstatement to the practice of law, he
serve an 18-month period of monitored probation in accordance with Gov.Bar R.
V(9) and engage in no further misconduct. If Thompson fails to comply with
these conditions, the stay will be revoked and he will serve the full two-year
suspension. Costs are taxed to Thompson.
                                                            Judgment accordingly.
        O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY, and
FRENCH, JJ., concur.




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       O’NEILL, J., dissents and would impose a two-year suspension, all stayed
on the condition that Thompson continue his contract with the Ohio Lawyers
Assistance Program for the duration of the stayed-suspension period.
                             ____________________
       Scott J. Drexel, Disciplinary Counsel, and Donald M. Scheetz, Assistant
Disciplinary Counsel, for relator.
       William C. Mann, for respondent.
                          _________________________




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