Drive He Said

The Ohio Supreme Court imposed a fully-stayed two year suspension for conduct both related and outside the practice of law

In a two-count December 2022 complaint, relator, disciplinary counsel, charged VanBibber with a total of five ethical violations, arising primarily from his being charged with and convicted of traffic offenses in multiple Ohio counties, his dishonesty with law-enforcement officers during traffic stops, his failure to comply with court orders related to his traffic violations, his mismanagement of his client trust account, and his failure to cooperate in the ensuing disciplinary investigation. The parties submitted stipulations of fact, misconduct (including three ethical violations that were not charged in relator’s complaint), and aggravating and mitigating factors. They also submitted 70 stipulated exhibits.

Shortly before admission

Late in the evening on December 25, 2017—ten days before VanBibber was admitted to the practice of law in Ohio—he drove his truck off a road in Greene County and crashed into a tree. He admitted to the responding lawenforcement officers that he had consumed alcohol prior to driving, but he refused to submit to a chemical test to determine the alcohol concentration or presence of other controlled substances in his body. As a result of his refusal to submit to a chemical test, his driver’s license was seized and administratively suspended under R.C. 4511.191

Then

In December 2018, a state trooper stopped VanBibber in Delaware County after observing him drive “across 6 lanes to the right turn lane toward a vehicle then swerv[e] back four lanes to the left turn lane.” During the traffic stop, the trooper found marijuana in the trunk of VanBibber’s car.

And

On January 3, 2020, a Bellefontaine police officer clocked VanBibber driving 39 m.p.h. in a 25 m.p.h. zone. After activating his emergency lights and initiating a pursuit, the officer observed VanBibber fail to yield at a stop sign and reach speeds in excess of 60 m.p.h. while driving through residential areas, alleys, and side streets before finally stopping. When questioned by the officer, VanBibber claimed that he had been unaware of the pursuit and that he had been driving to the Bellefontaine Municipal Court to represent a client. However, his route did not take him in the direction of that court.

During the traffic stop, the officer learned that VanBibber’s license was under suspension and that his license plate had expired in October 2019. VanBibber told the officer that he had just purchased the vehicle when, in fact, he had owned the vehicle for nearly a year and had failed to transfer the title and registration. Notably, the vehicle-registration-and-transfer block imposed by the Delaware Municipal Court remained in effect at that time. VanBibber was charged in the Bellefontaine Municipal Court with misdemeanor counts of driving under financial-responsibility suspension, having an expired or unlawful license plate, reckless operation, failure to yield at a stop sign, and speeding. He pleaded guilty to reckless operation and a reduced charge of speeding, and the other charges were dismissed. He was ordered to pay a fine and court costs, and his driver’s license was suspended for 90 days.

Nevertheless, he continued to drive.

As a result

In February 2020, just 13 days after VanBibber’s license was suspended by the Bellefontaine Municipal Court, a Champaign County sheriff’s deputy stopped him for a headlight violation. VanBibber could not provide the deputy with his vehicle registration or proof of insurance.

He lost his job and was the subject of a bar investigation

He admitted that he had flagrantly violated the law, claimed that he had accepted responsibility for his actions, and represented that he had taken steps to ensure that his misconduct would not be repeated. VanBibber expressly acknowledged that relator would reopen its investigation if he committed similar offenses in the future. Relator then closed its investigation without filing a formal complaint. Despite VanBibber’s assurances to relator, he has stipulated and the evidence shows that he continued to drive while his driver’s license was under suspension.

He self-reported the next one

In November 2021, more than a year after relator closed the disciplinary investigation, a Crestline police officer stopped VanBibber for having a white light on the rear of his vehicle.

The investigation reopened

Nearly three months after relator filed a complaint with the board, VanBibber informed relator through counsel that his ex-girlfriend had paid for the majority of his rideshares. However, the parties have stipulated that if called as a witness, VanBibber’s ex-girlfriend would testify that (1) she dated VanBibber from approximately November 2020 to July 2021, (2) she paid for eight rideshares for VanBibber between March and June 2021, (3) VanBibber never informed her that he could not legally drive, and (4) VanBibber borrowed her car several times during the relationship and “scratched [it] up” on one occasion.

An overdraft notice revealed trust account violations.

Trust account issues

Here, VanBibber failed to timely withdraw his earned fees from his client trust account, thereby commingling his personal funds with his clients’ funds. Additionally, VanBibber paid his personal and business expenses directly from his client trust account. Similar to the attorney’s misconduct in Morgan, VanBibber’s misconduct regarding the removal of funds from his client trust account placed his clients’ funds “directly at risk,” Morgan at ¶ 11. Although relator did not discover any evidence that VanBibber’s commingling, removal, and overdraft of funds from his client trust account actually harmed any of his clients, VanBibber’s misconduct warrants a more substantial sanction than a fully stayed suspension.

Sanction

Jack Herchel VanBibber is suspended from the practice of law in Ohio for two years with the suspension stayed in its entirety on the conditions that he (1) contact OLAP within 30 days of the final disciplinary order in this case to schedule a substance-abuse evaluation, (2) comply with any recommendations arising from the OLAP evaluation, (3) serve a two-year term of monitored probation in accordance with Gov.Bar R. V(21), focusing on client-trustaccount management and his compliance with any recommendations arising from the required OLAP evaluation, and (4) engage in no further misconduct. If VanBibber fails to comply with the conditions of the stay, the stay will be revoked and he will serve the full two-year suspension.

KENNEDY, C.J., concurring in part and dissenting in part.

This case presents the issue of what constitutes an appropriate sanction to protect the public when an attorney flagrantly and continually violates the law for five years and engages in misconduct that places his clients’ funds directly at risk, even when there is no evidence of actual harm to the clients. In my view, “a fully stayed suspension here does not send a ‘strong message’ to attorneys across Ohio,” Disciplinary Counsel v. Nowicki, __ Ohio St.3d __, 2023-Ohio-3079,__ N.E.3d __, ¶ 84 (Kennedy, C.J., concurring in part and dissenting in part), quoting Nowicki at ¶ 31. Therefore, I dissent from the majority’s decision to stay respondent Jack Herchel VanBibber’s suspension from the practice of law in its entirety. I would suspend VanBibber for two years with 18 months conditionally stayed…

“All our [Rules of Professional Conduct] and all our Ethical Considerations are founded on respect for the law, for the court system, for the judges, for counsel and, of course, for clients.” Trumbo, 76 Ohio St.3d 369 at 373, 667 N.E.2d 1186. VanBibber’s misconduct, which spans his entire legal career, demonstrates a habitual lack of respect for the law, the courts, the bar, and his clients. VanBibber’s flagrant disregard of the law, coupled with a lack of mitigating factors and his commingling of his clients’ funds with his personal funds, warrants a substantial sanction. Therefore, I would impose a sanction of a two-year suspension with 18 months conditionally stayed. Because the majority does otherwise, I dissent in part.

FISCHER, J., concurs in the foregoing opinion.

(Mike Frisch)