[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Vanderburg, Slip Opinion No. 2019-Ohio-4227.]




                                        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. 2019-OHIO-4227
                     DISCIPLINARY COUNSEL v. VANDERBURG.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
     may be cited as Disciplinary Counsel v. Vanderburg, Slip Opinion No.
                                   2019-Ohio-4227.]
Attorneys—Misconduct—Violation of the Rules of Professional Conduct, namely,
        engaging     in    conduct     involving    dishonesty,     fraud,    deceit,   or
        misrepresentation—One-year suspension, stayed on conditions.
    (No. 2019-0503—Submitted April 23, 2019—Decided October 17, 2019.)
   ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
                                 Court, No. 2018-056.
                                 _________________
        Per Curiam.
        {¶ 1} Respondent, Keith Allan Vanderburg, of Independence, Ohio,
Attorney Registration No. 0005609, was admitted to the practice of law in Ohio in
1978. In 2018, relator, disciplinary counsel, filed a complaint with the Board of
Professional Conduct alleging that Vanderburg had improperly converted funds
from his law firm.
                              SUPREME COURT OF OHIO




       {¶ 2} The board considered the case on the parties’ consent-to-discipline
agreement. See Gov.Bar R. V(16). In their agreement, the parties stipulated to the
following facts.
       {¶ 3} In June 2012, attorneys at the law firm in which Vanderburg was
working began representing a client who sold firearms and related products.
Vanderburg did not perform any legal services for this client. By June 2014, the
client owed the law firm more than $27,000 for legal services. Vanderburg knew
of the client’s delinquency due to his status as the law firm’s managing partner.
Because Vanderburg had an interest in firearms for personal use, he asked a law-
firm partner and the originating attorney on the client’s account to coordinate a
purchase for him by credit against the client’s outstanding balance. From June 2014
to December 2017, Vanderburg purchased products from the client by applying 13
credits against the client’s balance.
       {¶ 4} Some of Vanderburg’s law-firm partners generally knew of his
purchase-by-credit arrangement; however, they were unaware that he was not
reimbursing the firm for his purchases.       The parties stipulated that although
Vanderburg had initially intended to reimburse the law firm, he failed to do so,
resulting in his conversion of $28,184.81 from the firm. In June 2018, Peter
Hessler, who had become the law firm’s managing partner, discovered the
unreimbursed credits while reviewing the client’s delinquent account.           After
Hessler and another partner confronted Vanderburg, he admitted to the misconduct
and fully reimbursed the law firm the next day. The parties stipulated that none of
the firm’s clients were harmed by Vanderburg’s actions and that he remains a
partner in the firm.
       {¶ 5} In July 2018, Vanderburg and Hessler reported the misconduct to
relator. Hessler also reported it to local police but requested that no further action
be taken.




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                                January Term, 2019




       {¶ 6} Based on Vanderburg’s actions, the parties stipulated that he violated
Prof.Cond.R. 8.4(c) (prohibiting a lawyer from engaging in conduct involving
dishonesty, fraud, deceit, or misrepresentation). The parties also agreed to dismiss
an alleged violation of Prof.Cond.R. 8.4(h) (prohibiting a lawyer from engaging in
conduct that adversely reflects on the lawyer’s fitness to practice law). As an
aggravating factor, they stipulated that he had engaged in a pattern of misconduct.
See Gov.Bar R. V(13)(B)(3).         As mitigating factors, the parties agreed that
Vanderburg had no prior disciplinary offenses and had made a timely and good-
faith effort at restitution, fully and freely disclosed the misconduct to the board and
displayed a cooperative attitude toward the proceedings, and had a good character
and reputation. See Gov.Bar R. V(13)(C)(1), (3), (4), and (5).
       {¶ 7} The board recommends that we accept the parties’ consent-to-
discipline agreement and suspend Vanderburg from the practice of law for one year,
with the suspension stayed in its entirety on the conditions that he engage in no
further misconduct and pay the costs of the board’s proceedings. The board
analogized Vanderburg’s misconduct to that in Disciplinary Counsel v. Grigsby,
128 Ohio St.3d 413, 2011-Ohio-1446, 945 N.E.2d 512, and Disciplinary Counsel
v. Markijohn, 99 Ohio St.3d 489, 2003-Ohio-4129, 794 N.E.2d 24. In Grigsby, we
imposed a conditionally stayed 18-month suspension on an attorney who had
misused her employer’s credit card for personal expenses. In Markijohn, we
imposed a conditionally stayed six-month suspension on an attorney who had
falsely reported to his employer that he had made required retirement-account
payments and who had filed tax returns that included deductions for these phantom
payments. Both cases involved significant mitigating evidence, including self-
reporting, remorse, cooperation in the disciplinary process, payment of restitution,
and no prior disciplinary record.
       {¶ 8} We agree that Vanderburg violated Prof.Cond.R. 8.4(c) and that, in
accord with the caselaw discussed above, a conditionally stayed one-year




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suspension is the appropriate sanction in this case. We therefore adopt the parties’
consent-to-discipline agreement and accept the board’s recommended sanction.
       {¶ 9} Keith Allan Vanderburg is hereby suspended from the practice of law
for one year, with the entire suspension stayed on the conditions that he engage in
no further misconduct and pay the costs of the board’s proceedings. If Vanderburg
fails to comply with either condition, the stay will be lifted and he will serve the
entire one-year suspension.
                                                            Judgment accordingly.
       O’CONNOR, C.J., and FRENCH, FISCHER, DEWINE, DONNELLY, and
STEWART, JJ., concur.
       KENNEDY, J., dissents and would remand the cause to the Board of
Professional Conduct.
                               _________________
       Scott J. Drexel, Disciplinary Counsel, and Jennifer A. Bondurant, Assistant
Disciplinary Counsel, for relator.
       Tucker Ellis, L.L.P., and Harry D. Cornett Jr., for respondent.
                               _________________




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