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1 BF.FORE THE BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE OF THE SUPREME COURT OF OHIO In Re: Complaint against Case No F. Benjamin Riek III Attorney Reg. No Resnondent, Disciplinary Counsel Findings of Fact, Conclusions of Law and Recommendation of the Board of Commissioners on Grievances and Discipline of the Supreme Court of Ohio '!= ^am^1 Es.P. 008 ^ Q0^^ Relator. INTRODUCTION Relator tiled a two count Complaint against Respondent for personal misuse of Respondent's IOLTA account, and misappropriation of a client's share of a settlement check deposited in his trust account. The Complaint was heard on the 11th day of November, 2009, before a hearing panel consisting of attorney Lawrence Elleman, Judge Otho Eyster, and Judge Joseph J. Vukovich, Chair. None of the panel members resides in the appellate district from which this matter arose or served on the probable cause panel than certified this matter to the Board. FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. The parties submitted agreed Stipulations setting forth the facts and exhibits, rule violations, factors of mitigation and aggravation, and a recommended sanction. 2. The Stipulations are attached hereto and incorporated herein as if fully re-written. 1

2 3. The panel finds by clear and convincing evidence that Respondent violated the rules as set forth in the Stipulations at pages 4 and 6, namely: Prof. Cond. R. 1.15(a); 1.15(c); and 8.4(h) in count two. AGGRAVATION AND MITIGATION 4. 'The panel finds that the mitigating factors set forth on page 6 of the Stipulations are supported by the evidence and hereby incorporates the same. PANEL RECOMMENDATION 5. '1'he parties agreed that an appropriate sanction is an eighteen ( 18) month suspension with twelve ( 12) months of the sanction stayed. 6. In cases reviewed by the panel where IOLTA accounts were used as a personal checking account, the recommended sanction by the parties is within the range of sanctions imposed in similar cases. While some of those cases resulted in no period of actual suspension (see e.g., Disciplinary Cozinsel v. Johnson, 121 Ohio St.3d, 403, 2009-Ohio-1432), count two of the Complaint and Stipulations was more serious. In that count, Respondent gave his client the net proceeds of a settlement deposited in his IOLTA account which did not have sufficient funds to honor the draft. Respondent eventually made the check good within a month but gave false reasons to his client for the insufficient funds. Accordingly, the panel coneurs in the stipulated sanction and hereby recommends that Respondent be suspended from the practice of law for eighteen (18) months, with twelve (12) inonths stayed upon condition that Respondent commit no further misconduct. BOARD RECOMMENDATION Pursuant to Gov. Bar Rule V(6)(L), the Board of Cornmissioners on Grievances and Discipline of the Supreme Court of Ohio considered this matter on December 3, The Board adopted the Findings of Fact, Conclusions of Law and Recommendation of the Panel and 2

3 recommends that the Respondent, F. Benjamin Riek III, be suspended for eighteen months with twelve months stayed upon conditions in the State of Ohio. The Board further recommends that the cost of these proceedings be taxed to the Respondent in any disciplinary order entered, so that execution may issue. Pursuant to the order of the Board of Commissioners on Grievances and Discipline of the Supreme Court of Ohio, I hereby certify the foregoing Findings of Fact, Conclusions of Law, and Recommendatiqns as those of the Board. ATHAN W. MARSHAl1L, Secretary Board of Commissioners on Grievances and Discipline of the Supreme Court of Ohio 3

4 F. Benjamin Rick, III Attorney Registration No Byron Rd. Shaker Heights, OH Respondent, BEFORE THE BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE OF THE SUPREME COURT OF OHIO DISCIPLINARY COUNSEL AGREED STIPULATIONS OF 250 Civic Center Drive, Suite 325 FACT, DISCIPLINARY RULE Columbus, OH VIOLATIONS, AND JOINT RECOMMENDED SANCTION Relator. AGREED STIPULATIONS Relator, Disciplinary Counsel, and respondent, F. Benjamin Riek, do hereby stipulate and agree to the admission into evidence of the following facts, exhibits, rule violations, and joint recommended sanction. COUNT ONE STIPULATED FACTS 1. Respondent, F. Benjamin Riek, was admitted to the practice of law in the state of Ohio on November 20, Respondent is subject to the Ohio Rules of Professional Conduct and the Rules for the Government of the Bar of Ohio. 3. At all times herein, respondent has practiced law as a solo-practitioner and held his IOLTA account at the Huntington National Bank in Cleveland Ohio, account no. xxxxxx In 2007, Huntington National Bank acquired Sky Bank. On or around September 22, 2007, respondent's IOLTA account number was changed to xxxxxxx3753.

5 4. Between June 2007 and May 2008, respondent commingled personal and client funds in his IOLTA account, overdrew the IOLTA account on four separate occasions, and paid personal expenses directly from the IOLTA account. 5. The following table illustrates respondent's improper use of his IOLTA account, as each entry represents a personal or business expense paid directly from respondent's IOLTA account. The table is for illustration purposes and contains only a sampling of improper transfers from respondent's IOLTA account. Date Check No. Payee Amount Pnr ose June BLE Bldg. Assoc Rent June U-Haul of Ma field Storage June AT&T Tele hone June BGSU Tuition July Leslye Kazmerczak Mortgage Au BLE Bldg. Assoc Rent Aug Leslye Kazmerezak Mortgage Aug. 15 EFT Verizon Wireless Cell Phone Oct Carol Botzman Child Su ort Oct. 9 EFT Geico Ins Insurance Oct Alson Jewelers Wedding Bands Oct Internal Revenue Service Taxes Nov Marigold Catering Personal Nov BLE Bldg. Assoo Rent Nov Leslye Kazmerczak Morta e Nov Professional Liability Services Ins. Premium Dec Richard A. Baumgart, Trustee Bankruptcy Dec National City Bank Morta e Dec Grimestoppers Cleaning Service Jan Neighborhood Landsca in Landscaping Jan Continental Airlines Pres. Club Rewards Jan AT&T Telephone Jan Leslye Rich Mortgage Feb Richard Baumgart Bankru tc Feb State Bar of Texas Law Seminar Mar Boardwalk VW Car Mar Wachovia Dealer Serv Car payment 6. As the above table illustrates, respondent allowed personal creditors, such as Geico and Verizon, electronic access (EFT) to his IOLTA account. 2

6 7. As illustrated in the following paragraphs, in December 2007, respondent overdrew his IOLTA account on three occasions. 8. At the close of business on December 4, 2007, respondent had a balance of $44.59 in his IOLTA account. On December 6, 2007, check no made payable to BLE Bldg. Assoc.-for respondent's rent-in the amount of $786.23, was returned for insufficient funds. 9. On December 7, 2007, check no made payable to Grimestoppers-a cleaning service-in the amount of $114.38, was returned for insufficient funds. 10. On December 7, 2007, check no made payable to Time Wamer in the amount of $ was returned for insufficient funds. 11. On Monday, December 10, 2007, respondent deposited $4,900 into his IOLTA account. The deposit consisted of $100 cash, $2,800 in earned fees, and $2,000 in unearned retainer fees. 12. At the close of business on December 10, 2007, respondent had a balance of $4, in his IOLTA account. 13. As illustrated below, over the next seven days, respondent wrote several checks to himself and used a portion of client funds to pay personal expenses, including $1,000 to Richard Baumgart, the US Bankruptcy Trustee for respondent's personal bankruptcy. 3

7 1Vo. Date Payee Memo Line Amount Balance 10-Dec DEPOSIT ($4,900) Cash In Jose Gs inosa Raf Ahu,ed 1 st Installnient Sherri Ware Retainer , Dec F. Benjamin Riek , Dec Riek & Assoc , Dec Clerk of Courts Mcilwain -25 3, Dec Time Warner , Dec Richard A. Baumgart Trustee , Dec F. Beri amin Riek , Dec Riek & Assoc , Dec Kristie Shipler Refund of Retainer ^50 1, COUNT ONE STIPULATED RULE VIOLATIONS Relator and Respondent hereby agree and stipulate that respondent's conduct as described in Count One above violated the following provisions of the Ohio Rules of Professional Conduct: ORPC 1.15(A) [A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property]; ORPC 1.15(C) [A lawyer shall deposit into a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred]; and, Rule 8.4 (h) [It is professional misconduct for a lawyer to engage in any other conduct that adversely reflects on the lawyer's fitness to practice law] COUNT TV6'O.. STIPULATED FACTS 14. On December 31, 2007, respondent deposited a $10,000 settlement check made payable to his client, Chad Baldwin. 15. At the close of business on December 31, 2007, respondent had a balance of $10, in his IOLTA account. 4

8 16. Between December 31, 2007 and January 14, 2008, respondent wrote the following checks directly from his IOLTA account to pay himself and various personal expenses: No. Date Payee Memo Line Amount Balance 31-Dec DEPOSIT (Chad Baldwin) , Dec Zorebo Interactive , Dee Rite Aid , Dec Riek & Assoc , Dec F. Benjamin Riek , Jan-08 3-Jan Merchant Fees , Jan Neighborhood Landscaping , Jan F.Ben'amin Riek , Jan Riek & Associates , Jan Continental Airlines Pres. Club , Rewards Jan Richard Baumgart , Jan BLE Bldg. Association 12/07 & 1/08 rent , Jan AT&T , EFT 11-Jan Verizon Wireless , Jan F. Benjamin Riek , On or around January 16, 2008, Baldwin attempted to cash check no for $ ; however, the check bounced. 18. Baldwin contacted respondent regarding the bounced check and respondent falsely asserted that the $10,000 settlement check from Baldwin's employer, Midwest Direct, bounced, which caused respondent's check to Baldwin to bounce. 19. Respondent told Baldwin that he would contact Midwest Direct and would call Baldwin when the check cleared. 20. By February 5, 2008, respondent had misappropriated Baldwin's share of the settlement and had a balance of $46.84 in his IOLTA account. 21. On or around February 12, 2008, respondent contacted Baldwin and falsely asserted that Midwest Direct's check had cleared and instructed Baldwin to resubmit check no

9 22. On February 13, 2008, Baldwin resubmitted check no for $2, and the check cleared. COUNT TWO STIPULATED RULE VIOLATIONS Relator and Respondent hereby agree and stipulate that respondent's conduct as described in Count Two above violated the following provisions of the Ohio Rules of Professional Conduct: o ORPC 1.15(a) [A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property]; ORPC 8.4(c) [It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation]; Rule 8.4(h) [It is professional misconduct for a lawyer to engage in any other conduct that adversely reflects on the lawyer's fitness to practice law] STIPULATED EXHIBITS Exhibit 1 Affidavit and IOLTA Account Reconstruction Exhibit 2 IOLTA Account Records Exhibit 3 Character Letters STIPULATED MITIGATION EVIDENCE Under BCGD Proc. Reg. 10, Guidelines for Imposing Lawyer Sanctions, relator and respondent stipulate to the presence of the following mitigating factors: No previous discipline Full and free disclosure to Disciplinary Board Cooperative attitude toward proceedings Positive character evidence 6

10 STIPULATED AGGRAVATION EVIDENCE Relator and respondent hereby agree and stipulate to the absence of any aggravating factors. JOINT RECOMMENDED SANCTION Relator and respondent hereby agree and stipulate to a joint recommended sanction of 18 months with 12 months of the suspension stayed upon condition that respondent commit no further misconduct. **THE REMAINDER OF THIS PAGE HAS BEEN LEFT BLANK** 7

11 The above facts, rule violations, exhibits, and joint recomrnended sanction are stipulated to and entered into by agreement by the undersigned parties on this s day of November, han E. C ughlan ( ) Disciplinary C unsel F. Benjamin Riek, Esq. ( ), pro se F. Benjamin Riek III Co., L.P.A Byron Rd. Shaker Heights, OH 44122,-- ""-----^ Josep. Cal g Alf, (0^74786) Senior ssista Disci inary Counsel 250 Ci iace^ter Drive; Suite 325 Columbus, O ^ %

12 The above facts, rule violations, exhibits, and joint recommended sanction are stipulated to and entered into by agreement by the undersigned parties on this day of November, Jonath2fn B. Cou Disciplinary Coufrgel Betjfatnfn R k, Esq. (00227(Y3), pro se F. Benjainin R ek III Co., L.P.A Byron Rd. Shaker I-Ieights, OH Josep M. C ' 'uri ( ) Senio 1 ss stant isciplinary Counsel 250 C,(ic enter ive, Suite 325 Columbus, HL.32J

13 The above facts, rule violations, eachibits, and joint recommended sanction are stipulated to and entered into by agreement by the undersigned parties on this day ofnovember, ^ ^ ^ Jonathan E. Coughlan ( ) 'F. imin ek, Esq. ( ), prose Disciplinary Counsel F. Benjanu Riek III Co., L.P.A Byron Rd. Shaker Heights, OH Joseph M. Caligiuri ( ) Senior Assistant Disciplinary Counsel 250 Civic Center Drive, Suite 325 Columbus, OH