[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as 

Disciplinary Counsel v. Gorby, Slip Opinion No. 2015-Ohio-476.] 

NOTICE

This slip opinion is subject to formal revision before it is published in 

an advance sheet of the Ohio Official Reports. Readers are requested 

to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 

65 South Front Street, Columbus, Ohio 43215, of any typographical or 

other formal errors in the opinion, in order that corrections may be 

made before the opinion is published. 

DISCIPLINARY COUNSEL v. GORBY. 

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as Disciplinary Counsel v. Gorby, 

Slip Opinion No. 2015-Ohio-476.] 

Attorneys—Misconduct—Failure to inform clients of lack of malpractice 

insurance—Failure to hold clients’ funds in trust account—One-year 

suspension, stayed. 

(No. 2014-0541—Submitted July 8, 2014—Decided February 10, 2015.) 

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and 

Discipline of the Supreme Court, No. 2013-043. 

_______________________ 

Per Curiam. 

{¶ 1} Respondent, Jennifer Ann Gorby of Salem, Ohio, Attorney 

Registration No. 0073833, was admitted to the practice of law in Ohio in 2001. 

{¶ 2} On August 2, 2013, a probable-cause panel of the Board of 

Commissioners on Grievances and Discipline1

 certified a complaint filed by 

relator, disciplinary counsel, that charged Gorby with five violations of the Rules 

 

1

 Effective January 1, 2015, the Board of Commissioners on Grievances and Discipline has been 

renamed the Board of Professional Conduct. See Gov.Bar R. V(1)(A), 140 Ohio St.3d CII. 
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2

of Professional Conduct arising from her alleged misappropriation of funds 

belonging to her sister and brother-in-law, who were her clients. 

{¶ 3} The parties submitted joint stipulations of fact, misconduct, and 

aggravating and mitigating factors, and the panel heard Gorby’s testimony. At the 

hearing, Gorby admitted the underlying facts and affirmed her stipulations, except 

that she withdrew her original stipulation of a violation of Prof.Cond.R. 8.4(c) 

(prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, 

deceit, or misrepresentation). 

{¶ 4} The panel issued a report setting forth its findings of fact, finding 

that Gorby committed all of the alleged misconduct—except for an alleged 

violation of Prof.Cond.R. 8.4(h) (prohibiting a lawyer from engaging in conduct 

that adversely reflects on the lawyer’s fitness to practice law), which the panel 

unanimously dismissed by separate entry. Finding that Gorby’s conduct resulted 

from a family matter gone bad and that she presented little, if any, risk to the 

public, the panel recommended that her license to practice law in Ohio be 

suspended for one year, all stayed on the conditions that she commit no further 

misconduct and submit to a one-year period of monitored probation focusing on 

law-office and trust-account management. 

{¶ 5} The board adopted the panel’s findings of fact and misconduct and 

its recommended sanction. Relator objects to the aggravating and mitigating 

factors found by the board and urges this court to impose a one-year actual 

suspension from the practice of law. For the reasons that follow, we overrule 

relator’s objections, adopt the board’s findings of fact and misconduct, and 

suspend Gorby from the practice of law for one year, all stayed on the 

recommended conditions. 

 
January Term, 2015 

3

Misconduct 

{¶ 6} In 2010, Gorby reduced her workload to approximately 25 hours 

per week and limited her practice to court-appointed criminal defense and 

guardian ad litem work in Columbiana County. 

{¶ 7} In April 2011, Gorby’s sister, Donna Adams, contacted her 

regarding a foreclosure action filed against her and her husband, Troy Adams, in 

the Mahoning County Court of Common Pleas. Although she did not normally 

handle civil matters or practice outside of Columbiana County, Gorby agreed to 

represent them in the foreclosure action at no charge. There was no written fee 

agreement, and Gorby failed to advise the Adamses that she did not carry 

professional liability insurance. 

{¶ 8} Gorby filed an answer and counterclaim against the lender in the 

foreclosure action on May 19, 2011, and continued to actively represent the 

Adamses in the matter until the court issued a judgment against them in May 

2012. In connection with this representation, Gorby agreed to receive payments 

from the Adamses and hold the funds in trust until they saved enough money to 

stop the foreclosure. Having limited her practice to court-appointed work, Gorby 

did not maintain a client trust account, so beginning in June 2011, she deposited 

the money she received from the Adamses into her business checking account. 

{¶ 9} From June 27, 2011, through March 7, 2012, Gorby deposited a 

total of $6,400 from the Adamses and $4,600.78 of her personal funds into her 

business checking account. Although the Adamses did not authorize her to use 

their funds for any purpose other than payment of their mortgage, Gorby began 

writing checks from the account in July 2011 to cover personal and business 

expenses unrelated to their foreclosure. Her account balance soon dipped below 

the amount that she was supposed to be holding in trust for the Adamses—

reaching a low of $96.49 when it should have contained $5,500 of the Adamses’ 

money—and remained inadequate in varying degrees to satisfy that obligation 
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until November 2, 2012, when she deposited $5,500 in personal funds from her 

husband’s retirement account. Just days before making that deposit, she 

submitted a response to relator’s letter of inquiry in which she was less than 

forthcoming about the situation—advising relator that she was “presently holding 

$5,500” on the Adamses’ behalf. 

{¶ 10} By November 2012, the Adamses had divorced and Mr. Adams 

had filed for bankruptcy. On or about November 28, 2012, Gorby received a 

letter from Mr. Adams’s bankruptcy trustee, requesting that one-half of the $5,550 

in entrusted funds be disbursed to him. Because Gorby had withdrawn funds 

from the account to cover personal and business expenses even after depositing 

the funds from her husband’s retirement account, she deposited an additional 

$100 of personal funds on December 4, 2012, to bring the account balance to 

$5,584.49. She issued a $2,775 check to Mr. Adams’s bankruptcy trustee on 

December 7, 2012, and another check for the same amount to her sister on 

December 13, 2012. 

{¶ 11} The board found that Gorby’s conduct violated Prof.Cond.R. 1.4(c) 

(requiring a lawyer to inform the client if the lawyer does not maintain 

professional liability insurance), 1.15(a) (requiring a lawyer to hold the property 

of clients in an interest-bearing client trust account, separate from the lawyer’s 

own property), and 8.4(c). We adopt the board’s findings of fact and misconduct. 

Sanction 

{¶ 12} 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 
January Term, 2015 

5

determination, we also weigh evidence of the aggravating and mitigating factors 

listed in BCGD Proc.Reg. 10(B).2 

{¶ 13} The board found that Gorby acted with a dishonest or selfish 

motive when she misappropriated funds belonging to her sister and brother-in-law 

for her own purposes and that her misappropriation involved a pattern of 

misconduct. See BCGD Proc.Reg. 10(B)(1)(b) and (c). 

{¶ 14} The board balanced these aggravating factors against stipulated 

mitigating factors, including the absence of a prior disciplinary record, Gorby’s 

timely good-faith effort to make restitution, and her full and free disclosure to the 

disciplinary board and a cooperative attitude toward the proceedings. See BCGD 

Proc.Reg. 10(B)(2)(a), (c), and (d). The board also considered Gorby’s 

uncontroverted deposition and hearing testimony regarding her tumultuous and 

contentious relationship with her sister. The board noted Gorby’s testimony that 

once she became a practicing attorney, her older sister expected her to provide 

legal services for whatever she wanted and whenever she wanted them. Whether 

it was a speeding ticket or a foreclosure, her sister expected her to drop 

everything, no matter what was going on in her own life, and fix everything. 

Gorby felt that she could not refuse her sister’s demands because if she did, her 

sister would call and complain and harass her or their mother and “cause a big 

family fight and big family drama.” She reported that it had “always been this 

way” and that it was easier to give in to her sister’s demands than to fight. Gorby 

also testified that while the foreclosure was pending, she also served as the 

attorney for her grandmother’s estate—which created intense disagreements 

between the sisters, who were both beneficiaries of the estate. 

{¶ 15} While acknowledging that the presumptive sanction for 

misappropriation is disbarment, see, e.g., Cleveland Bar Assn. v. Dixon, 95 Ohio 

 

2

 Effective January 1, 2015, the aggravating and mitigating factors previously set forth in BCGD 

Proc.Reg. 10(B)(1) and (2) are codified in Gov.Bar R. V(13). 140 Ohio St.3d CXXIV. 
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St.3d 490, 2002-Ohio-2490, 769 N.E.2d 816, ¶ 15, the board focused on the 

primary purpose of the disciplinary sanction, which is not to punish the offender 

but to protect the public. Disciplinary Counsel v. Hoppel, 129 Ohio St.3d 53, 

2011-Ohio-2672, 950 N.E.2d 171, ¶ 21. The board considered our decision in 

Disciplinary Counsel v. Burchinal, 133 Ohio St.3d 38, 2012-Ohio-3882, 975 

N.E.2d 960, upon which relator relied to support his recommendation that we 

impose a one-year actual suspension for Gorby’s misconduct. However, the 

board distinguished Burchinal on the grounds that it involved misappropriation in 

multiple cases, neglect of a client matter, and concealment, which warranted the 

imposition of a two-year suspension with 18 months stayed on conditions, 

whereas Gorby’s misconduct involved misappropriation in just one client matter. 

Burchinal at ¶ 7-11, 20. The board also found that Gorby’s clients suffered no 

harm as a result of her misconduct and that she poses little, if any, threat to the 

public because her misconduct arose in the context of her very contentious family 

relationship. 

{¶ 16} Having considered Gorby’s conduct, the aggravating and 

mitigating factors, and this court’s precedent, the board recommends that we 

suspend Gorby for one year but that we stay the entire suspension on the 

conditions that she engage in no further misconduct and submit to a one-year 

period of monitored probation focusing on law-office and trust-account 

management. 

{¶ 17} Relator objects to the board’s findings with regard to the applicable 

aggravating and mitigating factors and argues that our precedent requires that we 

impose a sanction greater than a six-month actual suspension from the practice of 

law in this case. 

{¶ 18} First, relator suggests that there is clear and convincing evidence to 

establish two aggravating factors that were not found by the board—the failure to 

cooperate with relator’s investigation and the failure to acknowledge the wrongful 
January Term, 2015 

7

nature of the conduct at issue. Relator argues that Gorby’s early representation 

that she was “presently holding $5,500” entrusted to her by her sister and brotherin-law, when she had actually misappropriated the money, establishes that she 

failed to cooperate in the disciplinary investigation. However, relator was aware 

of this misstatement in Gorby’s response to his initial letter of inquiry when he 

stipulated that Gorby made full and free disclosure to the board and demonstrated 

a cooperative attitude toward the disciplinary proceedings. 

{¶ 19} Moreover, it appears that Gorby cooperated in the investigation 

from that point forward, with the exception that at the hearing, she withdrew her 

stipulation that she had engaged in dishonesty, fraud, deceit, or misrepresentation 

in violation of Prof.Cond.R. 8.4(c). Relator contends that because she withdrew 

that stipulation, she has refused to admit that her conduct was wrongful. While 

relator is correct that Gorby stated that she did not feel that she had stolen money 

from her sister, she also fully acknowledged that she took the money and used it 

without authorization and apologized for her actions, and the board believed that 

she showed genuine remorse. She explained that it was difficult for her to 

differentiate between her horrible familial relationship with her sister and her role 

as her sister’s attorney. Moreover, Gorby testified that this conduct would never 

have happened with a client other than her sister and that it would not happen 

again. 

{¶ 20} We are not bound by the findings of fact or conclusions of law of 

the panel or board in attorney disciplinary proceedings. Disciplinary Counsel v. 

Firth, 93 Ohio St.3d 173, 181, 754 N.E.2d 219 (2001). However, we generally 

defer to the credibility determinations of the panel unless the record weighs 

heavily against those findings, because the panel had the opportunity to observe 

the witnesses firsthand. Cincinnati Bar Assn. v. Statzer, 101 Ohio St.3d 14, 2003-

Ohio-6649, 800 N.E.2d 1117, ¶ 8. Here, the record does not weigh heavily 
SUPREME COURT OF OHIO

8

against the findings of the panel, as adopted by the board, and therefore we defer 

to the panel’s credibility determinations. 

{¶ 21} Relator also argues that a familial relationship between the 

grievant and the respondent and the absence of harm to a client are not mitigating 

factors. Relator is correct that BCGD Proc.Reg. 10(B) does not specifically 

identify either of these factors as mitigating. But the rule also expressly requires 

the board to consider “all relevant factors” in determining the appropriate sanction 

for attorney misconduct. And these factors are most certainly relevant in this 

case. 

{¶ 22} Gorby testified, and the board found, that she and her sister have 

always had a contentious relationship and that since she obtained her law license, 

her sister—and her mother—have expected her to drop everything to handle her 

sister’s legal crises with no reimbursement for her time or the expenses she incurs 

on her sister’s behalf. She indicated that it was easier to go along with her sister’s 

demands than to fight them and cause “a big family fight and big family drama.” 

However, she reports that she has learned her lesson about handling legal matters 

for her family and that it will never happen again. 

{¶ 23} In Stark Cty. Bar Assn. v. Ake, 111 Ohio St.3d 266, 2006-Ohio5704, 855 N.E.2d 1206, ¶ 4, 32, attorney Ake knowingly violated a temporary 

order in his personal divorce proceeding by writing a $94,000 check to his 

secretary. He then used the funds to pay for a condominium that he had agreed to 

buy and used his one-half interest in a piece of marital real property to secure a 

$400,000 individual line of credit. All told, he violated the court’s orders on five 

separate occasions—as a party, an attorney of record, and an officer of the 

court—because it suited his economic interest to do so. Id. at ¶ 39. While Ake’s 

misconduct did not involve the misappropriation of client funds, it did involve the 

misappropriation of more than $90,000 in marital funds in violation of a court 
January Term, 2015 

9

order that was issued to preserve the funds pending an equitable distribution of 

marital assets by the court or by consent of the parties. 

{¶ 24} We found as aggravating factors in Ake that the respondent’s 

actions were dishonest and self-serving, that he repeatedly violated several of the 

same disciplinary rules, and that he refused to recognize that his conduct rose to 

the level of an ethical violation. Id. at ¶ 41. Mitigating factors included the 

absence of a prior disciplinary record, full and free disclosure during the 

disciplinary process, and evidence of Ake’s good character and reputation apart 

from the charged misconduct. Id. at ¶ 42. Citing testimony and evidence of his 

integrity and competence, we found that Ake “would not disobey a court order in 

any situation other than the charged atmosphere of ending his own marriage.” Id.

at ¶ 46. Confident that he would never repeat his transgressions, we suspended 

him from the practice of law for six months, all stayed on the condition that he 

commit no further misconduct. Id. at ¶ 47. Thus, we recognized that an attorney 

whose only professional misconduct occurs in his own emotionally charged case 

may warrant a lesser sanction because the conduct is not likely to reoccur and 

does not pose a threat to the public. 

{¶ 25} We have also stated that because it is of the utmost importance that 

attorneys maintain their personal and office accounts separate from their clients’ 

accounts, a violation of the rules we have established to protect client funds 

warrants a substantial sanction whether or not the client has been harmed. 

Disciplinary Counsel v. Vogtsberger, 119 Ohio St.3d 458, 2008-Ohio-4571, 895 

N.E.2d 158, ¶ 10. The degree of harm caused by the conduct may, nonetheless, 

be relevant in determining the appropriate level of that sanction. 

{¶ 26} In this case, relator agreed at the hearing that the Adamses suffered 

no financial harm as a result of Gorby’s misconduct—although the bank obtained 

a judgment against them, they were ultimately able to keep their home. While 

relator argued that they were denied timely access to their funds, the undisputed 
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evidence demonstrates that when Mrs. Adams first requested the return of those 

funds, the Adamses divorce was pending and Mr. Adams had filed for 

bankruptcy. But relator agreed that if the money had been sitting in a trust 

account at that time, it would have been proper for Gorby to wait until she 

received direction from those courts to determine how the funds should be 

distributed. And while relator now asserts that the Adamses suffered 

psychological harm as the result of Gorby’s breach of trust, there is no evidence 

to establish whether such harm occurred because neither of them was called to 

testify. 

{¶ 27} Relator’s argument that the absence of harm cannot obviate the 

need to sanction an attorney for misconduct is inapposite. The board does not 

state that Gorby should not be sanctioned at all for her misconduct because there 

was no harm. Rather, the board states that in light of all of the mitigating 

factors—including the absence of harm to the clients and the fact that Gorby’s 

sole misconduct in her nearly 13-year legal career arose out of a contentious 

family dispute—a lesser sanction will be sufficient both to protect the public and 

to deter future misconduct. We agree. 

{¶ 28} Accordingly, we overrule relator’s objections and suspended 

Jennifer Ann Gorby from the practice of law in Ohio for one year, all stayed on 

the conditions that she engage in no further misconduct and submit to a one-year 

period of monitored probation focusing on law-office and trust-account 

management. Costs are taxed to Gorby. 

Judgment accordingly. 

O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,

FRENCH, and O’NEILL, JJ., concur. 

_________________________ 

Scott J. Drexel, Disciplinary Counsel, and Bruce T. Davis, Assistant 

Disciplinary Counsel, for relator. 
January Term, 2015 

11

Jennifer Ann Gorby, pro se. 

_________________________