[Cite as Disciplinary Counsel v. Wallace
, 138 Ohio St.3d 350, 2014-Ohio-1128.]

D ISCIPLINARY C OUNSEL v . W ALLACE

. [Cite as Disciplinary Counsel v. Wallace
, 138 Ohio St.3d 350, 2014-Ohio-1128.] Attorneys—Misconduct—Client trus t account improprieties—Engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation—Twoyear suspension, 12 months stayed on conditions. (No. 2013-0573—Submitted September 10, 2013—Decided March 26, 2014.)

O N C ERTIFIED R EPORT by the Board of Commissioners on Grievances and Discipline of the Supreme Court, No. 12-062.

____________________ Per Curiam

. {¶ 1} Respondent, Paul Lawrence Wallace of Columbus, Ohio, Attorney Registration No. 0010369, was admitted to th e practice of law in Ohio in 1980. We suspended him from the practice of law for six months in May 2000, based on his deliberate attempts to mislead his client into believing that the client’s civil case was pending for more than a year after the United States District Court for
the Northern District of Ohio had dismissed it. Disciplinary Counsel v. Wallace
, 89 Ohio St.3d 113, 729 N.E.2d 343 (2000) (“ Wallace I ”). We denied his application for reinstatement in Februa ry 2001 because there were additional disciplinary proceedings pending against him and because it appeared that he had failed to comply with the requirements of Gov.Bar R. X(3)(G) (requiring a suspended attorney to complete one cred it hour of continuing legal education for each month of the attorney’s suspension and one hour of instruction related to professional conduct for each si x months of the suspension). Disciplinary
Counsel v. Wallace , 91 Ohio St.3d 1434, 741 N.E.2d 896 (2001).S UPREME C OURT OF O HIO

2 {¶ 2} We dismissed the second disciplinary action against Wallace in March 2002, finding that his resubmissi on of a former client’s backgroundinvestigation documents to the Ohio Attorney General’s Office during his suspension was a ministerial act that did not constitute the practice of law. Disciplinary Counsel v. Wallace , 94 Ohio St.3d 414, 763 N.E.2d 1154 (2002) (“ Wallace II ”). We reinstated his license to practice law on March 6, 2002. Disciplinary Counsel v. Wallace , 94 Ohio St.3d 1249, 764 N.E.2d 438 (2002). {¶ 3} On August 16, 2012, a probable-cause panel of the Board of Commissioners on Grievances and Discip line certified a two-count complaint filed by relator, disciplinar y counsel, to the board. Havi ng considered the parties’ stipulated facts, evidence, and misc onduct, Wallace’s hearing testimony, and three letters from character witnesses, a panel of the board found that Wallace had engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation that adversely reflected on his fitness to practice law by (1) failing to hold a client’s insurance settlement and a separate cash payment in a separate client trust account, (2) failing to maintain a record of the funds he held on behalf of the affected client, and (3) misappropria ting the client’s funds. The panel recommended that Wallace be suspended from the practice of law for two years, with six months stayed on conditions, and th at he be required to serve one year of monitored probation. {¶ 4} The board adopted the panel’s findings of fact and misconduct and agreed with the panel’s recommendation that Wallace be suspended for two years and serve one year of m onitored probation on reinstat ement, but it recommended that the stayed portion of that suspension be increased to one year. Wallace objects to the board’s recommendation that he serve an actual suspension from the practice of law, arguing that a fully stayed suspension with monitored probation will adequately protect the public from futu re harm. We overrule his objectionJanuary Term, 2014

3 and adopt the board’s findings of f act and misconduct and its recommended
sanction.
Misconduct
Count One {¶ 5} In December 2008, Wallace represented Nigel Jackson in multiple legal and business matters, including (1) an insurance claim for the theft of Jackson’s BMW, (2) the incorporation of his business, Who Done It Productions, L.L.C., (3) his efforts to publish a book he authored, (4) some real-estate matters involving Jackson and his cousin, (5) an unsuccessful claim for reimbursement of funeral expenses incurred by Jackson on behalf of Glen Jones, (6) a civil judgment against Jackson and his girlfri end, Aisha Towles, and (7) an insurance claim for the theft of property from Towles’s vehicle. {¶ 6} Jackson paid Wallace a $300 retainer, but it is not clear whether they reached an agreement regarding the fee for his services. Wallace claims that he agreed to handle the insurance claim for the stolen BMW for $200 per hour, but Jackson maintained that they never reached an agreement, and Wallace never
submitted an invoice for his time. {¶ 7} Jackson was arrested and charged with drug trafficking in March 2009. Although Wallace did not represent him in his criminal case, he visited Jackson in the Delaware County Jail on at least two occasions to discuss his other legal matters. During one of those visits, Jackson executed a limited power of attorney to permit Wallace to transfer the title for his BMW to his insurer, Liberty Mutual. The power of attorney err oneously appointed Jackson as his own attorney-in-fact, but Wallace testified that he successfully transferred the BMW
title to the insurer. {¶ 8} In late July 2009, Liberty Mutual issued a $32,132.80 check to Jackson and Towles and, pursuant to Jackson’s instructions, mailed it to Wallace’s office. Wallace informed Jackson that he would deposit the check intoS UPREME C OURT OF O HIO

4 his client trust account. Before depos iting the check, he endorsed Jackson’s and Towles’s names without obtaining their express permission to do so. {¶ 9} From August through Oct ober 2009, Wallace misappropriated Jackson’s entire $32,132.80 insurance settle ment, paying $21,000 to himself and using the remainder for other client obligations. In September 2009, Wallace spoke with Jackson and informed him that he would “net $24,000.” Believing that the check was for $24,000, Jackson au thorized Wallace to disburse that amount to others on his behalf, but Wallace did not have sufficient funds in his
client trust account to do so. He deposited $2,500 that he had received from
Towles into his client trust account and made a $1,000 distribution authorized by Jackson. Although Wallace did not mainta in any records to substantiate the
distributions he made on Jack son’s behalf or his fee, his bank records show that he distributed $20,995 from his operating a ccount to third parties on Jackson’s behalf and retained $8,637.80 as his fee. {¶ 10} In November 2009, Towles called Li berty Mutual and learned that the check for the stolen BMW was $32,132.80 rather than the $24,000 that Wallace had divulged to Jackson. When she confronted Wallace several days later, he told her that the difference be tween the two amounts represented his legal
fees. {¶ 11} On these facts, and in accordance with the parties’ stipulations, the
board found that Wallace violated Prof .Cond.R. 1.15(a) (requiring a lawyer to hold the property of clients in an interest -bearing client trus t account, separate from the lawyer’s own property), 1.15(a)(2) (requiring a lawyer to maintain a
record for each client on whose behalf funds are held), 8.4(c) (prohibiting a lawyer from engaging in conduct involvi ng dishonesty, fraud, deceit, or misrepresentation), and 8.4(h) (prohibiting a lawyer from engaging in conduct that adversely reflects on the lawyer’s fitness to practice law). The board alsoJanuary Term, 2014

5 found that there was insufficient evidence to establish an alleged violation of Prof.Cond.R. 1.15(d) and therefore dismissed it.
Count Two {¶ 12} During Jackson’s incarceration, he instructed Towles to deliver a bag containing an undisclosed amount of cash to Wallace to be held for future expenses associated with the publication of Jackson’s book. Towles delivered the bag to Wallace at his office. Wallace did not retain any records to document the receipt of this cash, but he maintains that the bag contained $7,500. He deposited $2,500 of those funds into his client tr ust account on October 14, 2009, distributed $1,000 from the account to Jackson’s company, and misappropriated the remaining $1,500 of that deposit by issuing a check for $500 to Owen Loan Servicing, L.L.C., and a check for $1,000 to himself. On November 24, 2009, he deposited the remaining $5,000 into his ope rating account, which also contained funds belonging to him, and issued a $10,000 check to Jackson’s company from the account, representing the remainde r of the $7,500 cash payment he had
received from Towles and a final disburse ment of the Liberty Mutual settlement proceeds. {¶ 13} The parties stipulated and th e board found that this conduct
resulted in additional viol ations of Prof.Cond.R. 1.15(a), 1.15(a)(2), 8.4(c), and 8.4(h).
Sanction {¶ 14} 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 determination, we also weigh evidence of the aggravating and mitigating factors listed in BCGD Proc.Reg. 10(B).S UPREME C OURT OF O HIO

6 {¶ 15} The panel and board adopted the parties’ stipulated aggravating factors, agreeing that Wallace has a prior disciplinary record, acted with a selfish motive, and engaged in multiple offenses. See BCGD Proc.Reg. 10(B)(1)(a), (b), and (d). With regard to mitigation, they adopted the parties’ stipulation that Wallace made a full and free disclosure during the disciplinary process, that he has a positive reputation in the legal community, and that the client was paid in
full and suffered no financial harm as a result of Wallace’s misconduct. See BCGD Proc.Reg. 10(B)(2)(d) and (e). They also accorded some mitigating effect to the fact that the six-month suspension we imposed in Wallace I resulted in an actual suspension of over 20 months because we had denied his application for reinstatement during the pendency of Wallace II , which was ultimately dismissed. {¶ 16} Relator argued that the appropriate sanction for Wallace’s misconduct is a two-year suspension with one year of monitored probation on his reinstatement to the practice of law. Wallace argued that a fully stayed suspension with monitored probation woul d adequately protect the public from
future harm. {¶ 17} The panel acknowledged our precedent, which identifies disbarment as the presumptive sanction for misappropriation of client funds but permits the imposition of lesser sanctions in the presence of significant mitigating
factors. See, e.g., Disciplinary Counsel v. Burchinal , 133 Ohio St.3d 38, 2012- Ohio-3882, 975 N.E.2d 960, ¶ 17 (stating that the presumptive sanction for misappropriation of client funds is disbarment, but imposing a two-year suspension with 18 months stayed, in recognition of significant mitigating factors, including the absence of a disciplinary record, full cooperation with the disciplinary process, lette rs attesting to the attorney’s diligence and good character, and a documented mental impairment that was being treated with good prognosis).January Term, 2014

7 {¶ 18} But in recommending that we suspend Wallace for two years with six months stayed and require him to se rve one year of monitored probation upon reinstatement, the panel considered five cases cited by relator in which we imposed sanctions ranging from an i ndefinite suspension to a six-month suspension. {¶ 19} In Columbus Bar Assn. v. Peden , 134 Ohio St.3d 579, 2012-Ohio5766, 984 N.E.2d 1, we indefinitely susp ended an attorney, who had a prior disciplinary record, because he had neglected several client matters, commingled personal and client funds, fa iled to maintain adequate r ecords of the client funds in his possession, failed to return unearne d funds, and failed to cooperate in the disciplinary investigation. Id . at ¶ 16, 22, 27, 33, 38, 43, 54. {¶ 20} We imposed a two-year suspension, followed by one year of monitored probation, and continuing-legal -education requirements on an attorney who had misappropriate d client funds to pay pers onal and business expenses, failed to promptly deliver funds that clients were entitled to receive, and fabricated a fee dispute in an effort to defend his actions. Columbus Bar Assn v. King , 132 Ohio St.3d 501, 2012-Ohio-873, 974 N.E.2d 1180, ¶ 6, 16. Unlike Wallace, King did not have a prior disciplinary record in his more than 30 years of practice. Id. at ¶ 13. {¶ 21} In Disciplinary Counsel v. Simon-Seymour , 131 Ohio St.3d 161, 2012-Ohio-114, 962 N.E.2d 309, ¶ 3-6, 12, we suspended an attorney for two years with six months stayed on cond itions after she had misappropriated money from a decedent’s estate, overdrew her clie nt trust account, falsely represented to the probate court that she had satisfied certain estate obligations that she had not paid, and failed to reasonably communicate with her clients. Mitigating factors included that Simon-Seymour had no prior discipline, made complete restitution to the affected client, a nd cooperated in the disciplin ary process, while the onlyS UPREME C OURT OF O HIO

8 aggravating factor was that she had en gaged in a pattern of misconduct by mishandling client funds over a period of several years. Id. at ¶ 9. {¶ 22} Likewise, in Disciplinary Counsel v. Gildee , 134 Ohio St.3d 374, 2012-Ohio-5641, 982 N.E.2d 704, ¶ 5-14, 18, we suspended an attorney for two years, with the second year stayed on the conditions that she commit no further
misconduct and make full re stitution to the affected client after she had misappropriated more than $8,000 in client funds and made false statements to the relator during the course of the disciplinary investigation. Mitigating factors in that case, including the absence of a prior disciplinary record, full and free disclosure to the board during the disciplinary process, positive character evidence, and Gildee’s genuine expression of remorse at the disciplinary hearing, were balanced against aggravating fact ors, including a dishonest and selfish motive, multiple offenses, resulting harm to the victim, and Gildee’s failure to
make restitution. Id. at ¶ 16-17. {¶ 23} At the opposite end of the spectrum, we imposed a six-month suspension to be served consecutively to an attorney’s ongoing suspension for previous misconduct, after finding that he engaged in fraud and dishonesty, failed to deposit and maintain client funds in a separate client trust account, failed to maintain complete record s of client funds in hi s possession, and used funds belonging to a client to pay personal and business expenses. Disciplinary Counsel v. Manning , 119 Ohio St.3d 52, 2008-Ohio-3319, 891 N.E.2d 743. {¶ 24} Based on these cases, the panel’ s recommended sanction of a twoyear suspension with six months stayed, plus one year of monitored probation, falls within the range of sanctions we have imposed for comparable misconduct. The board, however, modified the pane l’s recommendation to stay the entire second year of the suspension. {¶ 25} Wallace objects to the board’s recommendation and argues that any suspension we impose should be stayed in its entirety because he has put systemsJanuary Term, 2014

9 in place to prevent future misconduct and he has already served an additional 14 months of actual suspension beyond the six-month suspension imposed in Wallace I, despite our dismissal of the alleged misconduct in Wallace II . But the only case that Wallace cites in which we imposed a fully stayed suspension for comparable conduct is Disciplinary Counsel v. Edwards , 134 Ohio St.3d 271, 2012-Ohio-5643, 981 N.E.2d 857. And Edwards involved significant mitigating factors that are not present in this case—the attorney had practiced more than 30 years with no prior discipline and his di agnosed mental disability was found to have contributed to the charged misconduct. Id. at ¶ 10, 15. {¶ 26} Although the misconduct, aggrav ating factors, and mitigating factors in the cases cited by the panel and board are not identical to the circumstances presented here, they are more analogous to the present case than
are the factors in Edwards . We universally impose a period of actual suspension for attorney misconduct involving dishone sty and the misappropriation of client
funds. See Disciplinary Counsel v. Fowerbaugh , 74 Ohio St.3d 187, 190, 658 N.E.2d 237 (1995) (holding that misconduc t involving dishonesty, fraud, deceit, or misrepresentation warrants an actual suspension from the practice of law). {¶ 27} Despite Wallace’s protests to the contrary, the recommended sanction already takes into account the mitigating factors that he urges us to consider. Indeed, in its report, the panel stated that its recommendation that the final six months of the suspension be stayed is based solely on the fact that he had
served an additional 14 months in excess of the six-month suspension we imposed
in Wallace I . The board recommended extending the stay to the entire second year of the two-year suspension. Based on the foregoing, we overrule Wallace’s objections, adopt the findings of fact and conclusions of law of the board, and find that a two-year suspension, with the second year stayed, plus a one-year period of monitored probation upon Wallace’s reinstatement to the practice of law is the appropriate sanction in this case.S UPREME C OURT OF O HIO

10 {¶ 28} Accordingly, Paul Lawrence Wallace is suspended from the practice of law in Ohio for two years, with the second year stayed on the
condition that he commit no further misconduct . On reinstatement to the practice of law, he will serve a one-year period of monitored probation in accordance with Gov.Bar R. V(9). Costs are taxed to Wallace. Judgment accordingly.
P FEIFER , O’D ONNELL , K ENNEDY , and F RENCH , JJ., concur. O’C ONNOR , C.J., and L ANZINGER and O’N EILL , JJ., dissent and would decline to stay any portion of the two-year suspension.

____________________ Scott Drexel, Disciplinary Counsel, and Joseph M. Caligiuri, Senior Assistant Disciplinary Counsel, for relator. Paul Lawrence Wallace, pro se.

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