Toledo Bar Assn. v. Driftmyer

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Toledo Bar Assn. v. Driftmyer, Slip Opinion No. 2024-Ohio-540.]

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.

SLIP OPINION NO. 2024-OHIO-540
TOLEDO BAR ASSOCIATION v. DRIFTMYER.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Toledo Bar Assn. v. Driftmyer, Slip Opinion No.
2024-Ohio-540.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct,
including failing to inform client of lack of professional-liability
insurance—One-year suspension and restitution ordered.
(No. 2023-0978—Submitted September 12, 2023—Decided February 15, 2024.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2022-044.
__________________
Per Curiam.
{¶ 1} Respondent, Sarah Ann Miller Driftmyer, Attorney Registration No.
0089222, whose last known address was in Toledo, Ohio, was admitted to the
practice of law in Ohio in 2012.
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{¶ 2} On December 20, 2018, we suspended Driftmyer from the practice of
law for six months with the entire suspension stayed on conditions. Wood Cty. Bar
Assn. v. Driftmyer, 155 Ohio St.3d 603, 2018-Ohio-5094, 122 N.E.3d 1262. In that
case, we found that Driftmyer failed to provide diligent representation to a client,
failed to maintain and utilize a client trust account, failed to inform her client that
she did not carry professional-liability insurance, failed to maintain a copy of her
written fee agreement with that client, and failed to timely respond to the relator’s
investigation of her misconduct. The conditions of the stay included requirements
that Driftmyer submit to a substance-abuse and mental-health assessment
conducted by the Ohio Lawyers Assistance Program (“OLAP”), comply with all
treatment recommendations arising from that assessment, and serve a one-year term
of monitored probation under Gov.Bar R. V(21). Id. at ¶ 22. We denied
Driftmyer’s application for termination of her monitored probation on June 8, 2021.
163 Ohio St.3d 1443, 2021-Ohio-1924, 168 N.E.3d 1200.
{¶ 3} In an April 2023 amended complaint, relator, Toledo Bar Association,
charged Driftmyer with multiple ethical violations arising from her representation
of clients in two additional legal matters. Among other things, relator alleged that
Driftmyer failed to provide competent representation, engaged in dishonest conduct
and knowingly made a false statement of fact to a tribunal, improperly handled a
client’s advanced-fee payment, failed to inform either client that she did not carry
professional-liability insurance, and knowingly failed to respond to relator’s
investigation of her misconduct.
{¶ 4} The parties submitted stipulations of fact, misconduct, and
aggravating and mitigating factors as well as 27 stipulated exhibits. The matter
proceeded to a hearing before a three-member panel of the Board of Professional
Conduct. Before commencing its case-in-chief, relator moved to dismiss one
alleged rule violation, and the panel unanimously granted that motion. Based on
the stipulations and evidence, including Driftmyer’s testimony, the panel issued a

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report finding that she had committed the other charged misconduct and
recommending that she be suspended from the practice of law for one year and
ordered to make restitution to one of her clients, complete certain continuing-legal-
education (“CLE”) requirements, and serve a period of monitored probation upon
her reinstatement to the profession. The board adopted the panel’s findings of fact,
conclusions of law, and recommended sanction.
{¶ 5} After a thorough review of the record and our applicable precedent,
we adopt the board’s findings of misconduct and its recommended sanction.
MISCONDUCT
Count I: The Reynolds Matter
{¶ 6} In January 2021, Ralpheal Reynolds contacted Driftmyer to inquire
about filing a motion for judicial release in his 2018 criminal case. Although she
verbally agreed to represent Reynolds, Driftmyer did not have him sign a written
fee agreement, and the terms of her representation are now disputed. Reynolds
states that Driftmyer agreed to represent him for a flat fee of $250, while Driftmyer
claims that the agreed fee was $500, with an initial payment of $250 and a second
$250 payment that would be due when the motion was filed.
{¶ 7} Reynolds paid Driftmyer $250 through a third party. But Driftmyer
did not inform Reynolds in writing that he may be entitled to a refund of all or part
of the fee if she failed to complete the representation for any reason, nor did she
inform him that she did not carry professional-liability insurance. Furthermore,
Driftmyer failed to deposit the fee into her client trust account.
{¶ 8} According to the parties’ stipulations, Driftmyer drafted the motion
and informed Reynolds that she required an additional payment of $250 to file it.
She never filed the motion, however, because she did not receive the additional
payment. In April 2021, Reynolds filed a grievance with relator alleging that
Driftmyer had failed to respond to his multiple attempts to communicate with her,
failed to complete the representation, and failed to refund the unearned fee.

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{¶ 9} Relator sent Driftmyer its first letter of inquiry regarding Reynolds’s
grievance in May 2021 and requested a response within 15 days. Despite relator’s
additional efforts to communicate with Driftmyer, she did not submit a written
response to the grievance until mid-August 2021. During an interview conducted
by relator’s investigator in September, Driftmyer stated that she carried
professional-liability insurance during her representation of Reynolds; she agreed
to provide documentation of that fact to relator, along with copies of her client file,
emails between herself and Reynolds, and phone-call logs. She did not provide any
of the promised documentation to relator—or otherwise communicate with relator
regarding that failure—until after relator filed its complaint. And although
Driftmyer later discovered that her professional-liability insurance had lapsed well
before she accepted Reynolds’s representation, she did not inform the investigator
of that fact until relator subpoenaed records related to her professional-liability
insurance. Those records showed that she maintained professional-liability
insurance from March 2, 2022, until March 2, 2023. And although Driftmyer
offered to refund Reynolds’s $250 payment during relator’s investigation, at the
time of her disciplinary hearing, she had not issued the refund.
{¶ 10} The parties stipulated and the board found by clear and convincing
evidence that Driftmyer’s conduct violated Prof.Cond.R. 1.4(a)(3) (requiring a
lawyer to keep a client reasonably informed about the status of a matter), 1.4(a)(4)
(requiring a lawyer to comply as soon as practicable with a client’s reasonable
requests for information), 1.4(c) (requiring a lawyer to inform a client if the lawyer
does not maintain professional-liability insurance and to obtain a signed
acknowledgment of that notice from the client), 1.5(d)(3) (prohibiting a lawyer
from charging a fee denominated as “earned upon receipt,” “nonrefundable,” or in
any similar terms without simultaneously advising the client in writing that the
client may be entitled to a refund of all or part of the fee if the lawyer does not
complete the representation), 1.15(c) (requiring a lawyer to deposit advance legal

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fees and expenses into a client trust account, to be withdrawn by the lawyer only as
fees are earned or expenses incurred), 1.15(e) (requiring a lawyer in possession of
funds in which two or more persons claim an interest to hold those funds in the
lawyer’s client trust account until the dispute is resolved), and 8.1(b) (prohibiting a
lawyer from failing to disclose a material fact or knowingly failing to respond to a
demand for information by a disciplinary authority during an investigation). We
adopt these findings of misconduct.
Count II: The Dunsmore and Ross Matter
{¶ 11} In 2020, Diana Dunsmore wanted to sell her home in Toledo herself.
April Ross (“Ross”) and her husband, Alvin, became interested in purchasing the
home. Driftmyer had previously represented Ross but never in a real-estate matter.
{¶ 12} In September 2020, the Rosses arrived at the home with Driftmyer
for a presale inspection. During that inspection, the Rosses and Dunsmore agreed
on sale terms and decided that Driftmyer would draft the documents necessary for
the sale and purchase of the home.
{¶ 13} At the time of the inspection, Dunsmore believed that she was
representing herself and that Driftmyer was acting as the Rosses’ attorney.
Driftmyer claims that she was not representing the Rosses at that time and that she
was present only to notarize documents. But at the end of the inspection, Driftmyer
provided the parties with a half-page handwritten sales agreement stating that the
Rosses were to pay off Dunsmore’s $59,000 home-equity loan and make a cash
payment of $88,500 to purchase the property. The Rosses and Dunsmore signed
the agreement, which failed to recite the standard terms set forth in the form
agreement for the purchase of residential real estate that relator and the Toledo
Board of Realtors make available online at no cost. Issues later arose regarding
additional terms of the sale, including the date that the Rosses would take
possession of the property, the proration of real-estate taxes, who was responsible
for necessary repairs, and which appliances were included in the sale.

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{¶ 14} Sometime after the Rosses and Dunsmore signed the agreement,
Driftmyer was asked to prepare the deed. Despite Driftmyer’s past representation
of Ross, her apparent representation of the Rosses in the purchase of Dunsmore’s
home, and her contention that she was not representing Dunsmore, Driftmyer
prepared a quitclaim deed on Dunsmore’s behalf. Upon Dunsmore’s request,
Driftmyer made certain modifications to the deed.
{¶ 15} By October 6, 2020, the Rosses had paid Dunsmore’s home-equity
loan in full, Dunsmore had signed the deed, and Driftmyer had presented Dunsmore
with an $88,500 check from the Rosses. It was agreed that the Rosses would take
possession of the real property by October 12. But the Rosses became dissatisfied
with the condition of the premises and Dunsmore’s retention of the check.
Moreover, when Dunsmore attempted to deposit the check on October 7, the bank
informed her that there would be a ten-day waiting period for the check to clear.
Consequently, Dunsmore informed the Rosses that she would not deliver
possession of the property until their check cleared. Ross stopped payment on the
check, claiming a concern that it had been lost, and proceeded to have Driftmyer
record the deed. Ross also served Dunsmore with an eviction notice.
{¶ 16} Sometime after Driftmyer recorded the deed, she learned that Ross
had stopped payment on the check. Despite her knowledge that the Rosses had not
paid the agreed price for the property, Driftmyer filed a complaint for forcible entry
and detainer against Dunsmore in the Toledo Municipal Court. Then, during a
November 2020 hearing on the matter at which Dunsmore appeared pro se,
Driftmyer presented the recorded deed to the court and argued that the Rosses were
entitled to possession as owners of the property. During her disciplinary hearing,
Driftmyer claimed that the Rosses had taken two checks to the municipal-court
hearing that together represented the balance owed to Dunsmore under the purchase
agreement. Although Driftmyer stated that she had held up envelopes containing
the checks to show the court that the Rosses had brought them, she acknowledged

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that she never gave the checks to Dunsmore or the court. The court ultimately
dismissed the Rosses’ eviction action.
{¶ 17} After Ross expressed a desire to pursue further litigation against
Dunsmore in common pleas court, Driftmyer terminated her representation,
explaining that she handles only criminal matters in the Lucas County Court of
Common Pleas. Ross retained new counsel and filed suit against Dunsmore, who
then joined Driftmyer as a third-party defendant in the action. That action remained
pending at the time of Driftmyer’s disciplinary hearing. Ross also filed a
professional-malpractice action against Driftmyer in the same court. Driftmyer did
not file an answer to that complaint, and a default judgment was entered against
her. During her disciplinary hearing, Driftmyer testified that she intends to file a
motion to set aside that judgment.
{¶ 18} The parties stipulated and the board found by clear and convincing
evidence that Driftmyer’s conduct violated Prof.Cond.R. 1.1 (requiring a lawyer to
provide competent representation to a client by utilizing the legal knowledge, skill,
thoroughness, and preparation reasonably necessary for the representation), 1.4(c),
3.3(a)(1) (prohibiting a lawyer from knowingly making a false statement of fact or
law to a tribunal), 4.3 (prohibiting a lawyer from giving legal advice to an
unrepresented person other than the advice to secure counsel if the lawyer knows
or reasonably should know that the interests of the unrepresented person are in
conflict with the interests of a client of the lawyer), and 8.4(c) (prohibiting a lawyer
from engaging in conduct involving dishonesty, fraud, deceit, or
misrepresentation). We adopt these findings of misconduct.
SANCTION
{¶ 19} When imposing sanctions for attorney misconduct, we consider all
relevant factors, including the ethical duties that the lawyer violated, the
aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions
imposed in similar cases.

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{¶ 20} The parties stipulated and the board found that seven aggravating
factors are present in this case—namely, Driftmyer (1) has a history of prior
discipline, (2) engaged in a pattern of misconduct, (3) committed multiple offenses,
(4) engaged in persistent delays with respect to relator’s investigation that are
tantamount to a failure to cooperate in the disciplinary process, (5) submitted a false
statement during the disciplinary process regarding the status of her professional-
liability insurance, (6) caused harm to vulnerable victims, and (7) failed to make
restitution to Reynolds. See Gov.Bar R. V(13)(B)(1), (3) through (6), (8), and (9).
{¶ 21} As for mitigating factors, the parties stipulated that Driftmyer had
not acted with a dishonest or selfish motive, in that she was careless rather than
willfully deceptive when she told relator’s investigator that she had professional-
liability insurance at the time she represented Reynolds when, in fact, that insurance
had expired well before she commenced that representation. See Gov.Bar R.
V(13)(C)(2). The board adopted that factor and also found that once Driftmyer had
begun to participate in the disciplinary proceedings, she made full disclosure to the
board and exhibited a cooperative attitude toward the disciplinary proceedings. See
Gov.Bar R. V(13)(C)(4).
{¶ 22} Relator recommended that Driftmyer be suspended for two years
with no stay. While Driftmyer conceded that an actual suspension is appropriate
under the circumstances of this case, she did not propose a duration.
{¶ 23} In determining the appropriate sanction for Driftmyer’s misconduct,
the board considered several cases in which we imposed a partially stayed one- or
two-year suspension for misconduct bearing some resemblance to that of
Driftmyer. In two of those cases—Toledo Bar Assn. v. Miller, 132 Ohio St.3d 63,
2012-Ohio-1880, 969 N.E.2d 239, and Toledo Bar Assn. v. DeMarco, 144 Ohio
St.3d 248, 2015-Ohio-4549, 41 N.E.3d 1237—we imposed one-year suspensions
with six months conditionally stayed on attorneys whose misconduct consisted
largely of making false statements to tribunals. Miller made false statements on

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behalf of his employer in an action seeking to garnish his wages, made false
statements regarding his income in his pending bankruptcy proceeding, and used
funds belonging to a client of his firm to pay a filing fee on behalf of a nonfirm pro
bono client. And DeMarco knowingly made a series of false statements to a court
claiming that he had never possessed certain discovery materials when, in fact, he
had possessed them at one time. However, Miller and DeMarco each violated just
three professional-conduct rules, compared to the 12 rule violations we have found
in this case. See Miller at ¶ 10; DeMarco at ¶ 7. And unlike Driftmyer, neither of
them had a history of prior discipline, failed to cooperate in the investigation of
their misconduct, caused harm to a client, or failed to make restitution. See Miller
at ¶ 12; DeMarco at ¶ 9.
{¶ 24} In two other cases considered by the board—Lorain Cty. Bar Assn.
v. Nelson, 168 Ohio St.3d 596, 2022-Ohio-1288, 200 N.E.3d 1039, and Stark Cty.
Bar Assn. v. Arkow, 168 Ohio St.3d 218, 2022-Ohio-3209, 197 N.E.3d 554—we
imposed two-year suspensions with one year conditionally stayed, combined with
periods of monitored probation after reinstatement, on attorneys with prior
discipline who, in addition to making false statements to either a tribunal or a client,
engaged in other acts of misconduct similar to some of those committed by
Driftmyer. While Nelson was on probation for prior disciplinary violations related
to his handling of a client’s unearned fee, he failed to deposit unearned fees from
18 other clients into his client trust account—compared to Driftmyer’s single
incident of such misconduct. Then, during an investigation of his alleged
misconduct, Nelson filed in this court an application to terminate his probation in
which he knowingly made the false statement that there were no disciplinary
proceedings pending against him. Like Driftmyer, in addition to a prior two-year
suspension for similar client-trust-account violations, Nelson engaged in a pattern
of misconduct, committed multiple offenses, and failed to cooperate in the
disciplinary investigation. See Nelson at ¶ 1, 23. In contrast to Driftmyer, who

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stipulated to her misconduct, Nelson refused to acknowledge the wrongfulness of
his conduct. See id.
{¶ 25} Arkow committed nine ethical violations by neglecting two client
matters, failing to reasonably communicate with those clients, lying to one of those
clients and the relator about the status of the client’s case, and falsifying documents
to conceal his inaction. In addition to an earlier conditionally stayed one-year
suspension for similar instances of neglect, Arkow, like Driftmyer, engaged in a
pattern of misconduct involving multiple offenses and submitted false statements
during the disciplinary process. See Arkow at ¶ 12. Although Arkow acted with a
dishonest or selfish motive, which has not been found in this case, he also made
timely restitution to his clients and submitted evidence of his good character. See
id. at ¶ 12-13.
{¶ 26} After considering Miller, DeMarco, Nelson, and Arkow, however,
the board found the facts of this case to be most analogous to those of Disciplinary
Counsel v. Bennett, 154 Ohio St.3d 314, 2018-Ohio-3973, 114 N.E.3d 167. Bennett
agreed to appeal to this court an appellate-court judgment affirming a client’s
criminal convictions for a flat fee of $5,000. He did not reduce the fee agreement
to writing and failed to inform the client that he did not intend to begin the work
until he had been paid. Bennett deposited a $2,500 payment he had received from
the client’s family into his operating account without informing the family that they
could be entitled to a refund if he did not complete the representation.
{¶ 27} Instead of filing a timely direct appeal in this court to exhaust the
client’s state-court remedies, Bennett unilaterally decided that filing a petition for
postconviction relief followed by a federal habeas corpus petition was a better
course of action. After he received another $1,000 payment, he filed a perfunctory
one-page motion for delayed appeal in this court. He later admitted that he had
intentionally omitted relevant information from that motion for the purpose of
misleading a federal court considering a subsequent habeas petition into believing

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that he had made a good-faith effort to pursue all of the client’s state remedies. This
court denied the client’s motion for delayed appeal. While a federal district court
found that Bennett’s deficient representation excused the client’s failure to timely
appeal his convictions to this court, it nonetheless dismissed his habeas petition on
other grounds.
{¶ 28} We found that Bennett failed to provide his client with competent
representation, failed to keep the client reasonably informed about the status of the
client’s legal matter, improperly denominated his fee as earned upon receipt, and
engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation. Id.
at ¶ 13. Like Driftmyer’s conduct in the Reynolds matter, Bennett’s misconduct
consisted of multiple offenses and was directed toward a vulnerable criminal
defendant. See id. at ¶ 16. In addition to cooperating in the disciplinary proceeding
as Driftmyer did here and accepting responsibility for his misconduct, Bennett also
submitted strong character evidence and made full restitution to his client. See id.
at ¶ 19. But in contrast to Driftmyer’s prior stayed six-month suspension, Bennett’s
prior suspension was indefinite and was imposed for other dishonest conduct that
also resulted in a felony conviction and two-year prison term. See id. at ¶ 23. On
those facts, we suspended Bennett from the practice of law for one year with no
stay. Id. at ¶ 23-24.
{¶ 29} In this case, the board found that the two-year suspension
recommended by the relator was “overly punitive.” But considering the number of
the aggravating factors present in this case—particularly, the harm caused to the
affected clients, the absence of restitution, and the fully stayed suspension we
imposed for Driftmyer’s prior instance of similar misconduct—along with the
comparative scarcity of mitigating factors, the board concluded that a one-year
suspension with no stay, as imposed in Bennett, is necessary to protect the public
from future harm. The board also recommends that Driftmyer be required to pay
$250 in restitution to Reynolds within 60 days.

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{¶ 30} In addition, the board recommends that Driftmyer’s reinstatement to
the profession be conditioned on the submission of proof that she has completed
one hour of CLE focused on law-office management and three hours of CLE
focused on criminal law, in addition to the requirements of Gov.Bar R. X.
Furthermore, the board recommends that upon reinstatement to the profession,
Driftmyer be required to serve a one-year period of monitored probation focused
primarily on client-trust-account management and compliance with the OLAP
assessment ordered in her prior disciplinary case.
{¶ 31} Having thoroughly reviewed the record and the precedent discussed
above, we agree that the appropriate sanction for Driftmyer’s misconduct is a one-
year suspension with no stay, combined with the requirements that she pay $250 in
restitution to Reynolds, complete four hours of CLE in addition to the requirements
of Gov.Bar R. X, and serve a one-year period of monitored probation upon her
reinstatement to the profession.
CONCLUSION
{¶ 32} Accordingly, Sarah Ann Miller Driftmyer is suspended from the
practice of law in Ohio for one year and ordered to pay $250 in restitution to
Ralpheal Reynolds within 60 days. In addition to the requirements for
reinstatement set forth in Gov.Bar R. V(24) and the general CLE requirements of
Gov.Bar R. X, Driftmyer shall be required to submit proof that she has made
restitution to Reynolds and completed one hour of CLE focused on law-office
management and three hours of CLE focused on criminal law. Upon reinstatement,
she shall serve a one-year period of monitored probation in accordance with
Gov.Bar R. V(21) to be focused primarily on her client-trust-account management
and compliance with the OLAP assessment and any treatment recommendations
arising therefrom as ordered by this court in Wood Cty. Bar Assn. v. Driftmyer, 155
Ohio St.3d 603, 2018-Ohio-5094, 122 N.E.3d 1262. Costs are taxed to Driftmyer.
Judgment accordingly.

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KENNEDY, C.J., and FISCHER, DEWINE, DONNELLY, STEWART, and DETERS,
JJ., concur.
BRUNNER, J., not participating.
__________________
Margaret Mattimoe Sturgeon, Bar Counsel, and Christopher F. Parker,
Assistant Bar Counsel, for relator.
Sarah Miller Driftmyer, pro se.
_________________

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