[Cite as Dayton Bar Assn. v. Matlock, 134 Ohio St.3d 276, 2012-Ohio-5638.] 

DAYTON BAR ASSOCIATION v. MATLOCK. 

[Cite as Dayton Bar Assn. v. Matlock, 134 Ohio St.3d 276, 2012-Ohio-5638.] 

Attorney misconduct—Multiple violations of the Rules of Professional Conduct—

Two-year suspension, partially stayed on conditions. 

(No. 2012-1023—Submitted August 22, 2012—Decided December 5, 2012.) 

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and 

Discipline of the Supreme Court, No. 10-003. 

_____________________ 

Per Curiam.

{¶ 1} Respondent, Michael Duane Matlock of Dayton, Ohio, Attorney 

Registration No. 0008564, was admitted to the practice of law in Ohio in 1985. 

We have previously suspended Matlock from the practice of law in Ohio for 

failing to comply with the continuing legal education (“CLE”) requirements of 

Gov.Bar R. X. See In re Report of Comm. on Continuing Legal Edn., 88 Ohio 

St.3d 1468, 726 N.E.2d 1006 (2000). We have also suspended Matlock from the 

practice of law in Ohio on four separate occasions for failing to file a certificate of 

registration and pay applicable fees in accordance with Gov.Bar R. VI. In re 

Attorney Registration Suspension of Matlock, 107 Ohio St.3d 1431, 2005-Ohio6408, 838 N.E.2d 671; In re Attorney Registration Suspension of Matlock, 116 

Ohio St.3d 1420, 2007-Ohio-6463, 877 N.E.2d 305; In re Attorney Registration 

Suspension of Matlock, 123 Ohio St.3d 1475, 2009-Ohio-5786, 915 N.E.2d 1256; 

In re Attorney Registration Suspension of Matlock, 130 Ohio St.3d 1420, 2011-

Ohio-5627, 956 N.E.2d 310. Matlock’s most recent attorney-registration 

suspension remains in effect. 

{¶ 2} In this case, the Board of Commissioners on Grievances and 

Discipline recommends that we suspend Matlock from the practice of law for two 
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years, with one year of the suspension stayed on conditions designed to protect 

the public and with reinstatement subject to specified conditions. The board’s 

recommendation is based on its finding that Matlock committed professional 

misconduct by failing to obtain a written contingent-fee agreement and failing to 

respond to disciplinary investigative inquiries in one client matter, failing to 

complete and file forms for a qualified domestic-relations order (“QDRO”) for 

another client, failing to communicate with both clients regarding their legal 

matters and failing to inform them that he did not maintain professional liability 

insurance, and commingling private funds and client funds and failing to 

document transactions for his client trust account. We agree that Matlock 

committed the professional misconduct found by the board, and we also agree that 

the appropriate sanction is a two-year suspension, with one year conditionally 

stayed. 

{¶ 3} Relator, Dayton Bar Association, charged Matlock in a six-count 

second amended complaint with multiple violations of the Rules of Professional 

Conduct and one violation of the Rules for the Government of the Bar in Ohio. 

The parties stipulated to certain facts and mitigating factors and recommended 

that Matlock be suspended from the practice of law for one year without receiving 

credit for the period covered by his current attorney-registration suspension. 

{¶ 4} A panel of three board members heard the case and made findings 

of fact and conclusions of law. The panel recommended that Matlock be 

suspended from the practice of law for two years, with one year of the suspension 

stayed on certain conditions and reinstatement subject to specified conditions. 

The panel added that Matlock should not receive credit for time served on his 

attorney-registration suspension. The board adopted the panel’s findings, 

conclusions, and recommended sanction, and so do we. 

{¶ 5} The parties have not objected to the board’s report and 

recommendation. 
January Term, 2012 

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Misconduct

Failing to Obtain Written Contingent-Fee Agreement 

and Failing to Respond to Investigative Inquiries and Demands

{¶ 6} In 2008, Tommy Jones paid Matlock $35 to have him write a letter 

to the client’s customer demanding payment of $1,182 for painting services. 

There was no written fee agreement, but Matlock claimed that there was an oral 

agreement in which he would receive a one-third contingent fee. Matlock wrote 

the requested letter, and the client’s customer provided him with a check for the 

$1,182 demanded. 

{¶ 7} Matlock then informed Jones that he would deduct his claimed 

one-third fee and forward the $788 balance to Jones, and Jones filed a complaint 

with relator. Jones received a $788 check from Matlock and after depositing it, 

Jones was notified by his bank that the check had been dishonored. 

{¶ 8} As part of its investigation of Jones’s complaint, relator requested 

copies of Matlock’s trust-account statements for 2007 and 2008 and copies of any 

written fee agreement or engagement letter between respondent and the client, but 

Matlock failed to respond to relator’s initial three letters or to furnish the 

requested materials. Matlock later informed Jones that the check he had 

previously sent had been written on the wrong account, and he subsequently sent 

Jones a money order for $825. Matlock ultimately provided some financial 

records to relator. 

{¶ 9} The board found, and we agree, that Matlock’s conduct violated 

Prof.Cond.R. 1.5(b) (requiring an attorney to communicate the nature and scope 

of the representation to the client and the rate of the fee, preferably in writing, 

before or within a reasonable time after commencing the representation), 1.5(c) 

(requiring an attorney to set forth a contingent-fee agreement in a writing signed 

by the client), and 8.1(b) (prohibiting a lawyer from knowingly failing to respond 

to a demand for information by a disciplinary authority during an investigation) 
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and Gov.Bar R. V(4)(G) (requiring a lawyer to cooperate in a disciplinary 

investigation). 

Failing to Prepare and File QDRO

{¶ 10} In 1993, Matlock represented Jeraldine Pettiford in a divorce case. 

In 2007, after the divorce case had concluded, it was discovered that Matlock had 

failed to file a QDRO entitling Pettiford to receive a portion of her ex-husband’s 

pension and an annuity. Matlock was to have performed these services as part of 

his representation of Pettiford in the divorce. In 2007, Matlock demanded and 

received $450 from Pettiford to file the required QDRO forms with the court, her 

ex-husband’s retirement system, and the company that had the annuity. Despite 

Matlock’s multiple representations to Pettiford that he had either filed or was 

about to file the QDRO forms, he failed to do so, and in November 2007, the 

domestic-relations court found him in contempt for failure to file the QDRO. 

Pettiford then filed the QDRO forms with the court and the retirement system 

herself. After Pettiford complained to Matlock about his representation of her, he 

sent her a cashier’s check for $230. 

{¶ 11} The board found, and we agree, that Matlock’s conduct violated 

Prof.Cond.R. 1.3 (requiring a lawyer to act with reasonable diligence in 

representing a client). 

Use of Trust Account as Personal Account

{¶ 12} In 2007 and 2008, during Matlock’s representation of Pettiford and 

Jones, Matlock deposited personal funds into his client trust account and paid 

personal expenses from the trust account. Matlock did not retain sufficient 

records documenting the transactions involving his client trust account. 

{¶ 13} The board found, and we agree, that Matlock’s conduct violated 

Prof.Cond.R. 1.15(a) (requiring a lawyer to hold funds of clients in an interestbearing client trust account, separate from the lawyer’s own funds). 

 
January Term, 2012 

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Failing to Communicate with Clients Regarding 

Legal Matters and Failing to Inform Clients that he did not Maintain 

Professional-Liability Insurance

{¶ 14} As noted previously, Matlock did not properly communicate with 

Jones and Pettiford about their legal matters. In addition, during his 

representation of the clients in 2007 and 2008, he did not have professionalmalpractice insurance, and he was unable to produce a written form from any 

client acknowledging that he had informed the client of that fact. 

{¶ 15} The board found, and we agree, that Matlock’s conduct violated 

Prof.Cond.R. 1.4(a)(2) (requiring a lawyer to reasonably consult with the client 

about the means by which the client's objectives are to be accomplished), 

1.4(a)(3) (requiring a lawyer to keep the client reasonably informed about the 

status of a matter), and 1.4(c) (requiring a lawyer to give clients written notice if 

the lawyer does not maintain professional-liability insurance and to have clients 

sign the notice). 

Sanction

{¶ 16} “When imposing sanctions for attorney misconduct, we consider 

relevant factors, including the duties the lawyer violated and sanctions imposed in 

similar cases.” Toledo Bar Assn. v. Weisberg, 124 Ohio St.3d 274, 2010-Ohio142, 921 N.E.2d 641, ¶ 15. To determine the appropriate sanction, we also 

consider the aggravating and mitigating circumstances found in BCGD Proc.Reg. 

10(B). Disciplinary Counsel v. Crosby, 124 Ohio St.3d 226, 2009-Ohio-6763, 

921 N.E.2d 225, ¶ 16. 

{¶ 17} The board determined that the following aggravating factors are 

pertinent for Matlock’s conduct here: (1) prior disciplinary offenses for his 

numerous attorney-registration suspensions, (2) a pattern of misconduct by his 

admitted inattention to the details of the practice of law, (3) the commission of 

multiple offenses, and (4) his initial failure to cooperate in the disciplinary 
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process. BCGD Proc.Reg. 10(B)(1)(a), (c), (d), and (e). In mitigation, the board 

found that Matlock (1) lacked a dishonest or selfish motive, (2) rectified the 

consequences of his misconduct by returning unearned funds to the two clients 

and that relator did not establish that either client had been damaged as a result of 

the misconduct, (3) fully and freely disclosed and admitted his misconduct and 

cooperated in the proceeding once he retained counsel, and (4) acknowledged the 

wrongfulness of his conduct. BCGD Proc.Reg. 10(B)(2)(b), (c), and (d). 

{¶ 18} The board further noted that Matlock was not entitled to present 

chemical dependency or mental disability as a mitigating factor because there was 

insufficient evidence that he had completed a treatment program or that he 

suffered from a mental disability at the time of the misconduct. Prior to the 

hearing, pursuant to the panel’s order, David G. Bienenfeld, M.D., conducted a 

psychiatric examination of respondent and concluded that Matlock does not suffer 

from a mental illness. Dr. Bienenfeld did, however, diagnose Matlock as 

suffering from “alcohol dependence, with physiological dependence, sustained 

partial remission” and cirrhosis of the liver and noted that during Matlock’s heavy 

drinking from 1993 to 2010, his marriage deteriorated, he was divorced, and he 

became depressed. The board expressed particular concern regarding Dr. 

Bienenfeld’s conclusion that Matlock’s alcohol-dependence remission “is 

exceedingly rare without either continued outpatient treatment or Alcoholics 

Anonymous” and that Matlock currently was not enrolled in a treatment program 

and had exhibited an aversion to “such intervention and maintenance.” 

{¶ 19} The mishandling of client funds by commingling or poor 

management is of paramount importance, and this misconduct requires a 

substantial sanction regardless of whether a client is harmed. See Disciplinary 

Counsel v. Riek, 125 Ohio St.3d 46, 2010-Ohio-1556, 925 N.E.2d 980, ¶ 10, and 

cases cited therein. In Riek, the court held that that the recommended sanction of 

an 18-month suspension with 12 months stayed was within the range of sanctions 
January Term, 2012 

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imposed by the court for similar misconduct involving attorneys who have failed 

to properly maintain their trust accounts. Id. at ¶ 12, citing Crosby, 124 Ohio 

St.3d 226, 2009-Ohio-6763, 921 N.E.2d 225, at ¶ 19 (sanctions ranging from a 

stayed six-month suspension to an indefinite suspension). 

{¶ 20} In recommending its sanction here of a two-year license 

suspension with one year stayed upon conditions related to respondent’s alcohol 

dependency, the board considered several cases, including Akron Bar Assn. v. 

McNerney, 122 Ohio St.3d 40, 2009-Ohio-2374, 907 N.E.2d 1167, in which we 

imposed a similar sanction of a two-year suspension with the second year 

conditionally stayed for misconduct that included trust-account and malpracticeinsurance improprieties as well as a failure to appropriately respond to the 

disciplinary process. Id. at ¶ 20-23. In that case, as here, we noted that alcohol 

dependence was not a mitigating factor due to the lack of competent medical 

evidence establishing a causal connection between the alcoholism and the 

misconduct and the questionable commitment of the attorney to a recovery 

program, but we considered it in determining appropriate conditions for the stayed 

portion of the suspension. Id. at ¶ 16, 21. 

{¶ 21} Upon our independent review of the relevant factors, we agree that 

the sanction recommended by the board is commensurate with Matlock’s 

misconduct. We therefore suspend Matlock from the practice of law in Ohio for 

two years, with one year of the suspension stayed on the following conditions: 

(1) Matlock enters into a contract with the Ohio Lawyers Assistance Program 

(“OLAP”) for such time as recommended by OLAP, (2) Matlock fully complies 

with all OLAP recommendations, including regular attendance at Alcoholics 

Anonymous meetings, (3) Matlock commits no further misconduct, and (4) during 

the period of his stayed suspension and for one year following the stayed 

suspension, Matlock is supervised by a monitor appointed by relator pursuant to 

Gov.Bar R. V(9) to ensure, among other things, that he is in full compliance with 
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his obligations regarding his OLAP contract and the handling of his client trust 

account and the required disclosures relating to malpractice insurance. Matlock’s 

reinstatement from the suspension shall be subject to the requirements of Gov.Bar 

R. V(10)(A) and shall be specifically conditioned on his compliance with the 

conditions specified for the stayed suspension and his presentation of a certificate 

from a qualified psychiatrist that he is able to return to the competent, ethical, and 

professional practice of law. Furthermore, Matlock shall engage in no further 

misconduct. If Matlock fails to comply with these conditions, the stay will be 

lifted, and he will serve the entire two-year suspension. Costs are taxed to 

Matlock. 

Judgment accordingly. 

O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,

LANZINGER, CUPP, and MCGEE BROWN, JJ., concur. 

_____________________ 

 Beiser, Greer & Landis and David P. Williamson, for relator. 

 Mia Wortham Spells, for respondent. 

_____________________