Monday, February 26, 2018

Conditions

Oral argument before the Ohio Supreme Court

Columbus Bar Association v. Bradley D. Keating, Case no. 2017-1740
Franklin County

The Ohio Board of Professional Conduct recommends that Columbus attorney Bradley Keating receive a six-month suspension, fully stayed on certain conditions, for failing to keep and maintain appropriate financial records.

Attorney Takes Over Law Firm in 2012
From 2003 to 2009, Keating was an associate attorney at Magelaner & Associates. He was made partner in 2009, and his name was added to the firm’s name. In January 2012, Keating became owner of the firm and renamed it The Keating Firm after Thomas L. Magelaner sold his interest. Since that time Keating has had authority over the firm’s financial matters, including its client trust accounts, which are referred to as an Interest on Lawyers’ Trust Account (IOLTA).

The firm employed Rebecca Gee Meyer as an associate attorney from 2006 to 2012. Meyer worked in the Cincinnati office, and Keating’s office was in Columbus. Beginning in 2010, Meyer was suspended from practicing law for varied periods, including an indefinite suspension imposed in February 2015.

Chiropractor Doesn’t Receive Payments from Law Firm
In separate cases, three clients hired the firm through the Cincinnati office in 2011 to represent them after suffering injuries in motor vehicle accidents. Two of the clients and the third client’s child received treatment from a local chiropractor. The firm agreed to pay the chiropractor from any settlement funds. When he wasn’t paid, the chiropractor filed a grievance against Keating. By May 2017, Keating still hadn’t paid the chiropractor, in part because of inaccurate records that indicated checks had been written to the health care professional.

Law Firm Changes Accounting Services
In 2008, Keating and Magelaner noticed accounting discrepancies in work done by the Louisiana company that handled the firm’s bookkeeping. The lawyers hired a new accounting service that year, and the prior accounting firm refused to provide records to help reconcile the prior IOLTA. The lawyers opened a new IOLTA, identified as account 2500, and eventually transferred funds from the old account. In July 2011, the law firm opened another new IOLTA. Because there were unidentified funds in account 2500, Magelaner and Keating left it open. It is unclear who owns the approximately $75,000 in account 2500.

Board Recommends Six-Month Stayed Suspension with Conditions
The professional conduct board concluded that Keating violated various attorney conduct rules, including requirements to perform monthly financial reconciliations and to maintain records of client’s accounts for seven years. There was also a period between December 2015 and July 2017 when Keating didn’t inform clients that he no longer had professional liability insurance, the board noted.

The board report to the Supreme Court points to the multiple offenses as an aggravating factor. The report also states that Keating has now paid the chiropractor in full, has no prior discipline, hasn’t shown a dishonest motive, and has been cooperative during the disciplinary process. The board report also finds as mitigating that the problems with the first accounting firm and the law firm’s transfer of funds from old to new IOLTAs were steps taken in good faith and appeared to be intended to protect clients and third parties.

With Meyer no longer employed by the firm, the board concluded that the public will be protected if Keating’s suspension is completely stayed on certain conditions, including two years of monitored probation, the hiring of someone with accounting expertise during the probation to ensure proper IOLTA management, and completion of three hours of continuing legal education related to client fund management.

Bar Association Argues for Additional Condition
While the Columbus Bar Association doesn’t take issue with the recommended six-month stayed suspension or the conditions, it asks the Supreme Court to impose another condition on Keating’s suspension.

The bar association explains that Keating can’t account for the $74,517.14 that remains in account 2500 as of October 2017. The purpose of financial records required by the attorney conduct rules is to ensure that the lawyer can identify “who owns every penny in the lawyer’s trust account,” the bar association’s objection states. Keating hired a forensic accountant in 2017 to try to sort out this issue, but her report concluded that these funds are “most likely” profits for the firm and “unlikely” to be client funds. Noting that the records don’t exist for clients whose funds may be in the account, the bar association recommends that Keating be required to turn over the money to the state’s division of unclaimed funds to follow certain statutory procedures.

Attorney Believes Extras Condition Is Unwarranted
Keating responds that no client or third party is making a claim to any of these funds, the last payment from account 2500 was at least six years ago, and the forensic accountant concluded the money is owned by the law firm. He argues that other disciplinary cases have allowed lawyers to collect legal fees once any client disputes or IOLTA discrepancies are resolved. He maintains that the funds in account 2500 aren’t “unclaimed funds” based on the definition in R.C. 169.01, nor is he a “holder” of unclaimed funds. Keating asks the Court to decline to impose the additional condition recommended by the bar association.

- Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

(Mike Frisch)

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