Wednesday, March 20, 2013

One Year Actual Suspension For 38 Violations

The web page of the Ohio Supreme Court reports:

The Ohio Supreme Court today suspended a Painesville attorney for two years for 38 violations of attorney professional conduct rules – including mishandling client funds – that harmed eight clients.

As a result of the 4-3 per curiam opinion, Leo J. Talikka will avoid the second year of suspension if he commits no further misconduct, pays interest on restitution he made to three clients, and serves one year of monitored probation upon reinstatement.

The majority consisted of Justices Paul E. Pfeifer, Terrence O’Donnell, Sharon L. Kennedy, and William M. O’Neill.

In her 30-page dissent, Chief Justice Maureen O’Connor wrote that the majority’s decision “is wholly inadequate when a thorough review of the record is made.” Justices Judith Ann Lanzinger and Judith L. French joined the dissent.

Talikka entered into joint stipulations with the Office of Disciplinary Counsel admitting that he comingled his own funds with client funds on deposit in his law office trust account, failed to maintain accurate records or perform regular reconciliations to account for funds he held for different clients, neglected entrusted client legal matters, engaged in conduct prejudicial to the administration of justice, and on multiple occasions made use of funds he held in trust for one client to make disbursements to or on behalf of another client.

Although a three-member hearing panel of the Board of Commissioners on Grievances & Discipline approved the joint recommendation of Talikka and the disciplinary counsel that he receive a two-year license suspension with the second year stayed on conditions, the full disciplinary board overruled that agreement and recommended that the court impose an indefinite license suspension as the appropriate sanction for his misconduct.

In imposing the lesser sanction, the Supreme Court’s majority opinion notes “that the sanction recommended by the parties and the panel is adequate to protect the public from future harm.” The majority also pointed to several mitigating factors to accept the lesser sanction, including: no prior disciplinary record over his 40 years of practice, serious health problems during the misconduct, voluntary participation in a psychological evaluation, and letters from five judges vouching for Talikka’s character.

As an aggravating factor the majority further noted that the parties stipulated and the board found that Talikka had failed to make restitution to the affected clients. But during oral arguments it was learned that Talikka made restitution following the board’s issuance of its report.

Chief Justice O’Connor wrote that Talikka still should receive a more severe sanction.

“Given the nature of Talikka’s misconduct, which affected several vulnerable victims, and his failures to refund an unearned portion of his clients’ retainers when they terminated his representation, to safeguard $10,000 belonging to a client in his client trust account, and to promptly distribute all of the funds that his clients were entitled to receive, the board’s recommendation of an indefinite suspension properly reflects our obligation to protect the public,” Chief Justice O’Connor wrote.

Chief Justice O’Connor included a review of the misconduct, which was omitted from the majority opinion because the parties stipulated to the facts and misconduct.

“But a review of the misconduct is essential and I believe will underscore the inadequacy of the majority’s decision,” she wrote. “Indeed, given the significant number of violations and the deleterious effect Talikka’s misconduct caused to eight vulnerable clients, a more severe sanction than that imposed by the majority is warranted.”

After listing the nature of the misconduct, Chief Justice O’Connor wrote: “Given the scope and severity of Talikka’s misconduct, the majority’s sanction improperly inflates the mitigating factors in this case while devaluing the aggravating factors, including the breadth of harm to vulnerable victims.”

Chief Justice O’Connor wrote that she would have made reinstatement contingent upon Talikka paying his clients interest and compliance with an Ohio Lawyers Assistance Program contract.

“Those conditions are not excessive given the nature and scope of the misconduct here and can only help Talikka regain proper control over his practice while protecting the public from any additional harm,” she wrote. “It is baffling that despite the loss of tens of thousands of dollars belonging to his clients, repeated neglect of clients’ cases, and repeated incidents showing disrespect to clients and the oath Talikka took as an attorney, the majority fails to impose them in this case.”

The opinion is linked here. (MIke Frisch)

http://lawprofessors.typepad.com/legal_profession/2013/03/one-year-actual-suspension-for-38-violations.html

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