Ohio Supreme Court Disciplines Three Attorneys
The Ohio Supreme Court today disbarred one attorney and suspended two others for violating multiple professional conduct rules in three separate per curiam opinions.
The Supreme Court disbarred Lisbon attorney Virginia M. Barborak. The Court suspended for two years, with the second year stayed on conditions, Fort Mitchell, Kentucky, attorney Christopher D. Wiest and Canfield attorney Benjamin Joltin.
Barborak Complaint Involves Probate Matters
The Columbiana County Bar Association charged Barborak with rules infractions based on her actions in four probate matters in which she served as a court-appointed fiduciary or counsel for a court-appointed fiduciary.
The bar association’s complaint alleged that Barborak failed to hold funds belonging to the probate estates in an interest-bearing trust account separate from her own property, failed to maintain required records documenting the funds entrusted to her, and falsified bank statements and probate accountings to conceal her misappropriation of client funds. Barborak stipulated that her account balances were often significantly less than the amounts that should have been maintained for her clients. She also admitted at one point that her client trust account balance contained about $12,000 when the account should have held more than $170,000.
The Court adopted the Board of Professional Conduct’s findings of fact and misconduct that found, among other things, that Barborak misappropriated “significant” sums of money, did not maintain adequate records regarding the funds she held and disbursed on behalf of her clients, and filed false statements and records designed to “mislead and misinform” probate courts.
After considering the relevant aggravating and mitigating factors, the Court rejected the board’s recommendation to impose an indefinite suspension based on five similar disciplinary cases that entailed misappropriation and falsification and Barborak’s “six-year pattern of dishonesty.”
“Given Barborak’s lengthy and disturbing pattern of failing to maintain records of client funds entrusted to her, misappropriating client funds, and intentionally submitting false and fraudulent documents to the courts of this state – which are more serious and more pervasive than the cases cited in support of the recommended indefinite suspension – we conclude that permanent disbarment is the only appropriate sanction in this case,” according to the Court’s unanimous opinion.
Wiest Complaint Centers on Stock Buy
The Cincinnati Bar Association alleged in its complaint that Wiest engaged in insider trading by buying 35,000 shares of stock in InfoLogix Inc., a company his client, Stanley Black and Decker, was considering acquiring. But at the hearing, the bar association argued that some of Wiest’s rule violations arose from his disclosure of confidential documents and information about Stanley to the U.S. Securities and Exchange Commission (SEC) during its investigation of his trading activities.
The Board of Professional Conduct hearing panel dismissed one rule violation that the bar association initially alleged to have occurred in the context of Wiest’s trading activities (but later argued was associated with sharing information with the SEC) because the last-minute change in the bar association’s theory in the case did not allow Wiest adequate time to prepare his defense. The Court dismissed another alleged violation for the same reason. The Court also declined to consider a rule violation associated with Wiest’s alleged use of confidential information to buy stock because the hearing panel unanimously dismissed the charge. The Court found, however, that Wiest engaged in dishonest conduct by using confidential client information to buy stock and failed to consult with his client or his employer before doing so.
“To the extent that Wiest and the board focus solely on Wiest’s ‘use’ of confidential client information in deciding to purchase InfoLogix stock, they misapprehend the true nature of his dishonesty and deceit and overlook Wiest’s profound failure to appreciate what is perhaps one of the most fundamental of his professional obligations – his duty to communicate openly with his clients,” the Court’s unanimous opinion stated.
“Not only did he conceal his intention to purchase stock from his client, he remained silent upon learning that his client was moving forward with its acquisition of that company and once again remained silent when the SEC issued a subpoena compelling him to produce his client’s confidential information. Thus, it is Wiest’s repeated concealment of information that he was duty-bound to communicate to his client from which we infer his intent to engage in dishonesty, fraud, deceit, and misrepresentation,” the Court wrote.
After considering the relevant aggravating and mitigating factors and similar cases, the Court imposed a two-year suspension with the second year stayed on conditions for “Wiest’s dishonest conduct, his dishonest and selfish motive, his complete disregard for his client, and his complete abdication of his duty to communicate with this client.”
Joltin Complaint Concerns Office Management
In the complaint filed by the Office of Disciplinary Counsel against Joltin, the rule violations arose largely from the financial mismanagement of his practice related to three client matters and his trust account records. He represented clients in a complex divorce case, a personal-injury case, and an eviction case. Two of the clients fired him.
The complaint alleged that Joltin commingled personal and client funds, misappropriated client funds, misled a client about the reason he failed to promptly deliver the client’s funds, and failed to maintain any records regarding his client trust account for several years.
After considering the relevant aggravating and mitigating factors and similar cases, the Court imposed a two-year suspension with the second year stayed on conditions. The Court ordered Joltin to serve a one-year period of monitored probation, complete three hours of continuing legal education (CLE) addressing trust-account maintenance in addition to certain other CLE requirements, remain in full compliance with his existing Ohio Lawyers Assistance Program (OLAP) contract, follow all of OLAP’s treatment recommendations, and commit no further misconduct.
Justices Paul E. Pfeifer, Terrence O’Donnell, Sharon L. Kennedy, Judith L. French, and William M. O’Neill concurred in the opinion.
Justice Judith Ann Lanzinger dissented in an opinion joined by Chief Justice Maureen O’Connor. Justice Lanzinger would have imposed an indefinite suspension. “A two-year suspension with one year stayed is insufficient when the presumptive sanction is disbarment for misappropriation of client funds,” she wrote.
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