The Second Time Around

The Ohio Supreme Court considered precedents in sanctioning an attorney for misconduct while on probation for like violations

Upon reinstating Nelson to the practice of law on July 24, 2018, we ordered him to serve a one-year period of monitored probation “focusing on trustaccount and record-keeping requirements relating to fees and other client materials.” Lorain Cty. Bar Assn. v. Nelson, 153 Ohio St.3d 1239, 2018-Ohio2895, 109 N.E.3d 1250, ¶ 3

The misconduct involved failure to deposit unearned retainers in escrow in cases of clients in a Modest Means Program “a referral service that is intended to provide affordable legal representation to clients who cannot afford to obtain counsel at market rates”

…Nelson had already been disciplined for treating client retainers as earned upon receipt without simultaneously advising his clients in writing that they may be entitled to a refund of all or a portion of the fee if he did not complete the representation. Despite having been suspended from the practice of law for two years—with 18 months conditionally stayed—for that misconduct, Nelson did not deposit the fees paid by 17 Modest Means Program clients into his client trust account. Nor did he submit any evidence other than his own self-serving testimony to establish the affirmative defense that those fees were earned upon receipt because he had complied with Prof.Cond.R. 1.5(d)(3).

In short, the sanction we imposed in December 2017 was insufficient to deter Nelson from engaging in additional misconduct, and the repeated nature of his client-trust-account violations combined with his lack of candor in his application to terminate probation render the facts of this case more egregious than those in Gerchak, Dockry, and Adelstein.

Sanction

On these facts, we overrule Nelson’s objection to the board’s recommended sanction and agree with the board’s assessment that a two-year suspension with one year conditionally stayed, followed by two years of work with a monitoring attorney, is necessary to protect the public from future misconduct.

(Mike Frisch)