[Cite as Disciplinary Counsel v. DeGidio, 135 Ohio St.3d 407, 2013-Ohio-1509.]




                        DISCIPLINARY COUNSEL v. DEGIDIO.
          [Cite as Disciplinary Counsel v. DeGidio, 135 Ohio St.3d 407,
                                    2013-Ohio-1509.]
Attorneys—Misconduct—Failure to maintain client funds in a separate account
        or to cooperate with a disciplinary investigation—Two-year suspension,
        one year stayed on conditions.
    (No. 2012-1697—Submitted January 23, 2013—Decided April 18, 2013.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                    Discipline of the Supreme Court, No. 12-043.
                                 __________________
        Per Curiam.
        {¶ 1} Respondent, Anthony James DeGidio Jr. of Toledo, Ohio,
Attorney Registration No. 0069064, was admitted to the practice of law in Ohio in
1998.     In June 2012, relator, disciplinary counsel, charged DeGidio with
commingling personal and client funds in his client trust account, using that
account to pay personal expenses, and failing to cooperate in the ensuing
disciplinary investigation.
        {¶ 2} Although DeGidio received relator’s complaint by certified mail,
he did not answer it.         Consequently, relator moved for default.           A master
commissioner appointed by the Board of Commissioners on Grievances and
Discipline granted relator’s motion for default, found that relator had proved by
clear and convincing evidence that DeGidio committed the charged misconduct,
and recommended that he be suspended from the practice of law for two years,
with the second year stayed.
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       {¶ 3} The board adopted the master commissioner’s findings of fact and
misconduct. While the board agrees that a two-year suspension with the second
year stayed, is the appropriate sanction for DeGidio’s misconduct, it further
recommends that the stay be conditioned on his completion of a continuing-legal-
education (“CLE”) course addressing the proper use and maintenance of a client
trust account. Having considered DeGidio’s misconduct, the aggravating and
mitigating factors present, and the sanctions imposed for comparable misconduct,
we adopt the board’s recommended sanction.
                                   Misconduct
       {¶ 4} On February 15, 2011, relator received a notice from Huntington
National Bank that DeGidio had overdrawn his client trust account by $395.58.
Relator sent letters of inquiry to the home and business addresses that respondent
had provided to the Office of Attorney Registration. Although the letters sent by
certified mail were returned unclaimed, those sent by regular mail were not
returned. DeGidio requested and received an extension of time to respond to the
inquiry, but he did not submit a response until prompted by an e-mail from
relator. In response to relator’s request for additional information, DeGidio sent a
brief reply and requested and received another extension of time to respond, but
once again he failed to provide the requested information. He did not respond to a
follow-up letter or a subpoena duces tecum ordering him to appear at relator’s
office on February 13, 2012, although the subpoena was personally served on
him. On February 24, however, he requested by e-mail that the deposition be
rescheduled due to his illness; it is apparent from the e-mail that DeGidio believed
that the deposition was scheduled for that day. Relator offered to grant DeGidio
additional time if he would waive the one-year time limit for completing relator’s
investigation.   DeGidio never responded to that offer or to any subsequent
communications from relator.




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                                January Term, 2013




       {¶ 5} The bank records subpoenaed by relator demonstrate that from
August 2010 through June 2011, DeGidio deposited personal funds, including a
birthday check he had received from his sister, into his client trust account. He
also used his trust account to pay personal and business expenses and wrote and
negotiated five trust-account checks that were issued payable to “Cash.”
       {¶ 6} DeGidio’s client trust account had a balance of $1,007.42 on
January 19, 2011, when he deposited a $5,650 check from a client. DeGidio
issued a $450 check to cover fees associated with the filing of the client’s appeal
in a federal court of appeals. But before the clerk could negotiate the check,
DeGidio issued an additional $6,595 in checks—a $5,000 check for his fee, a
check for a personal or business obligation, and a check for cash. Thus, when the
$450 check was negotiated, the account became overdrawn.
       {¶ 7} The board found that DeGidio violated 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), 8.1(b) (prohibiting a lawyer
from knowingly failing to respond to a demand for information by a disciplinary
authority during an investigation), 8.4(d) (prohibiting a lawyer from engaging in
conduct that is prejudicial to the administration of justice), and 8.4(h) (prohibiting
a lawyer from engaging in conduct that adversely reflects on the lawyer’s fitness
to practice law) and Gov.Bar R. V(4)(G) (requiring a lawyer to cooperate with a
disciplinary investigation). We adopt the board’s findings of fact and misconduct.
                                      Sanction
       {¶ 8} 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.
          {¶ 9} The only aggravating factor found by the board was DeGidio’s
lack of cooperation in the disciplinary investigation, and the only mitigating factor
found was the absence of a prior disciplinary record. See BCGD Proc.Reg.
10(B)(1)(e) and (2)(a).
          {¶ 10} Relator and the master commissioner recommended that DeGidio
be suspended from the practice of law for two years and that the second year of
the suspension be stayed. The board adopted that recommendation, but also
recommends that we condition the stay on DeGidio’s completion of a CLE course
on the proper use and maintenance of a client trust account.
          {¶ 11} In Disciplinary Counsel v. Morgan, 114 Ohio St.3d 179, 2007-
Ohio-3604, 870 N.E.2d 1171, we imposed a two-year suspension, with one year
conditionally stayed, on an attorney who had commingled funds in his client trust
account, overdrawn the account multiple times, and failed to cooperate in the
resulting disciplinary suspension. In light of DeGidio’s improper use of his client
trust account, the resulting overdraft, and his failure to cooperate in the resulting
investigation, we find that the board’s recommended sanction is commensurate
with sanctions imposed for comparable misconduct and thus is appropriate.
          {¶ 12} Accordingly, Anthony James DeGidio Jr. is suspended from the
practice of law in Ohio for two years, with the second year stayed on the
conditions that he commit no further misconduct and complete six hours of CLE
in trust-account management in addition to the CLE requirements of Gov.Bar R.
X. Costs are taxed to DeGidio.
                                                               Judgment accordingly.
          PFEIFER, O’DONNELL, LANZINGER, KENNEDY, FRENCH, and O’Neill, JJ.,
concur.




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       O’CONNOR, C.J., dissents and would impose an indefinite suspension
upon respondent.
                             __________________
       Jonathan E. Coughlan, Disciplinary Counsel, and Stacy Solochek
Beckman, Assistant Disciplinary Counsel, for relator.
                           ______________________




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