Toledo Bar Assn. v. Weisberg

[Cite as Toledo Bar Assn. v. Weisberg, 124 Ohio St.3d 274, 2010-Ohio-142.]

TOLEDO BAR ASSOCIATION v. WEISBERG.
[Cite as Toledo Bar Assn. v. Weisberg, 124 Ohio St.3d 274, 2010-Ohio-142.]
Attorneys at law — Misconduct — Tax evasion — Commingling — Two-year
suspension with conditional stay — Credit for interim suspension denied.
(No. 2008-0390 ⎯ Submitted October 20, 2009 ⎯ Decided January 27, 2010.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 07-077.
__________________
Per Curiam.
{¶ 1} Respondent, Joseph D. Weisberg of Sylvania, Ohio, Attorney
Registration No. 0001441, was admitted to the practice of law in Ohio in 1967.
On March 26, 2007, we suspended respondent’s license to practice for an interim
period pursuant to Gov.Bar R. V(5)(A)(4) upon receiving notice that he had been
convicted of a felony. See In re Weisberg, 113 Ohio St.3d 1424, 2007-Ohio-
1313, 863 N.E.2d 642.
{¶ 2} The Board of Commissioners on Grievances and Discipline
recommends that as our final disposition in this case we suspend respondent’s
license to practice for two years. Because he has been barred from practice for
over two and one-half years already, however, the board further recommends that
we afford credit for the interim suspension of his license on the condition that he
obtain treatment for habitual gambling. The board’s recommendation is based on
findings that respondent was convicted on one count of federal income tax
evasion and also commingled his personal funds with funds held in trust for
clients. We accept the board’s findings that respondent violated ethical standards
incumbent on Ohio lawyers; however, we conclude that a two-year suspension
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from practice, all stayed on the condition of treatment to control his gambling, but
with no credit for the interim suspension, is the appropriate sanction.
{¶ 3} Relator, the Toledo Bar Association, charged respondent in a two-
count complaint with violations of two Disciplinary Rules of the Code of
Professional Responsibility⎯DR 1-102(A)(3) (prohibiting a lawyer from
engaging in illegal conduct involving moral turpitude) and 9-102(A) (requiring a
lawyer to maintain client funds in a separate, identifiable bank account). The
board initially considered the case on a consent-to-discipline agreement, filed
pursuant to BCGD Proc.Reg. 11, in which the parties stipulated to facts and
misconduct and proposed as a sanction that respondent’s license to practice be
suspended for one year and that he be given credit for the interim suspension.
The board accepted the agreement and recommended that we impose the agreed-
upon sanction.
{¶ 4} Upon review of the board’s certified report, we rejected the
recommendation and returned the cause for further proceedings. See Toledo Bar
Assn. v. Weisberg, 118 Ohio St.3d 1499, 2008-Ohio-3305, 889 N.E.2d 572. A
panel of three board members heard the case and, based on the parties’
stipulations and respondent’s testimony, made findings of fact and conclusions of
law. As a sanction, the panel recommended the two-year suspension of
respondent’s license, with credit for his March 26, 2007 interim suspension from
practice. The board accepted the panel’s findings of misconduct and
recommendation.
{¶ 5} The parties do not object to the board’s report.
Misconduct
{¶ 6} Respondent pleaded guilty in August 2006 to one count of federal
income tax evasion in violation of Section 7201, Title 26, U.S. Code, the felony
that led to his interim suspension. The United States District Court, Northern
District of Ohio, sentenced respondent in February 2007 to five months in prison,

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five months of electronically monitored house arrest, and three years of
supervised postrelease control. Respondent has served his entire sentence.
{¶ 7} Respondent’s conviction resulted from his failure to pay his taxes
and from his concealment of the funds, not from any failure to report income. In
admitting that he violated DR 1-102(A)(3), respondent stipulated:
{¶ 8} “5. At some point prior to 1996, Respondent became delinquent in
the payment of Federal income taxes for the calendar years 1988, 1989, 1990,
1991, and 1992. He filed returns and paid the taxes due for 1988, 1993, 1994,
1995, 1996, 2000, and 2002.
{¶ 9} “6. In 1996, Respondent entered into an installment payment
agreement with the Internal Revenue Service (IRS) to pay the delinquent taxes
referred to above in installments. In 1998, however, he failed to pay a portion of
his income taxes due for 1997. Under the terms of the installment agreement, that
failure constituted a default. The IRS terminated the installment agreement, but
never informed respondent until the end of 1999. During 1998 and 1999,
Respondent made payments under the agreement.”
{¶ 10} Respondent also admitted having violated DR 9-102(A). As to the
events underlying this misconduct, respondent stipulated:
{¶ 11} “11. At all times material to this case, Respondent maintained an
IOLTA [Interest on Lawyers Trust Accounts] account as required by statute and
court rule.
{¶ 12} “12. From 1997 through 2002, Respondent deposited and kept
some personal funds in his IOLTA account, including substantial portions of legal
fees he earned during that period, in an attempt to conceal his assets from the IRS.
{¶ 13} “13. From 1997 through 2002, Respondent used his IOLTA for
virtually all of his business and personal funds. On many occasions, he drew
checks on said account to pay numerous and substantial personal expenses.”

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{¶ 14} The board accepted respondent’s admissions of misconduct, as do
we.
Sanction
{¶ 15} When imposing sanctions for attorney misconduct, we consider
relevant factors, including the duties the lawyer violated and 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.
Disciplinary Counsel v. Broeren, 115 Ohio St.3d 473, 2007-Ohio-5251, 875
N.E.2d 935, ¶ 21. Because each disciplinary case is unique, we are not limited to
the factors specified in the rule but may take into account “all relevant factors” in
determining what sanction to impose. BCGD Proc.Reg. 10(B).
{¶ 16} We have deemed attempts to willfully evade federal income taxes
to be illegal conduct involving moral turpitude in violation of DR 1-102(A)(3).
Disciplinary Counsel v. Roetzel (1994), 70 Ohio St.3d 376, 639 N.E.2d 50. The
lawyer in Roetzel failed to answer or defend against a complaint charging this
misconduct, and we indefinitely suspended his license to practice, providing no
credit for the nearly one year that his license had been under an interim
suspension because of his felony conviction. Respondent’s attempt to conceal his
personal assets from creditors by depositing them into his client trust account is
also a serious breach of ethical duties:
{¶ 17} “Clearly, a lawyer may not use his trust account, which is a tool
established for the benefit of the profession, as a ‘safe haven’ for his money to
avoid his personal financial responsibilities. * * * [I]t is ‘of the utmost
importance that attorneys maintain their personal and office accounts separate
from their clients' accounts and that the violation of that rule 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, ¶

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10, quoting Erie-Huron Counties Joint Certified Grievance Commt. v. Miles
(1996), 76 Ohio St.3d 574, 577, 669 N.E.2d 831.
{¶ 18} After weighing the aggravating and mitigating circumstances of his
case, however, we share the board’s obvious confidence in the rehabilitative
measures respondent has undertaken since his criminal conviction. As the board
noted, respondent’s illegal conduct, which he attributed to “a cash flow situation”
produced mainly by gambling debts, was motivated by dishonesty and self-
interest, an aggravating factor under BCGD Proc.Reg. 10(B)(1)(b). But
respondent established the mitigating factors that he has had no prior incidents of
misconduct in his career of over 40 years, he cooperated completely in the
disciplinary process, and he produced solid evidence of his good character and
reputation apart from the underlying events. See BCGD Proc.Reg. 10(B)(2)(a),
(d), and (e). Moreover, respondent has served the sentence for his crimes, a
mitigating factor under BCGD Proc.Reg. 10(B)(2)(f), and has agreed to continue
treatment to manage his admittedly compulsive gambling.
{¶ 19} A two-year suspension of respondent’s license is commensurate
with sanctions imposed in similar cases. In addition, a sanction that includes a
suspension period, stayed on conditions of a monitored probation, will provide
necessary oversight in respondent’s practice and ensure that he remains
committed to treatment and refrains from further excesses. We therefore suspend
respondent from practice for two years, with no credit for the interim suspension;
however, the suspension is stayed on the condition that respondent serve a two-
year monitored probation in accordance with Gov.Bar R. V(9), including that he
enter an Ohio Lawyers Assistance Program contract to obtain counseling and any
other appropriate therapy for his gambling. If respondent fails to comply with the
terms of the stay or probation, the stay will be lifted, and respondent will serve the
entire two-year suspension from practice.
{¶ 20} Costs are taxed to respondent.

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Judgment accordingly.
MOYER, C.J., and PFEIFER, LUNDBERG STRATTON, O’CONNOR,
O’DONNELL, LANZINGER, and CUPP, JJ., concur.
__________________
Jonathan B. Cherry, Bar Counsel, and George E. Gerken, for relator.
Wittenberg, Phillips, Levy & Nusbaum and Jerome Phillips, for
respondent.
______________________

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