Decided: February 10, 2015
Attorney: Jennifer Ann Gorby
Misconduct: Failure to hold clients’ funds in trust account; Failure to inform clients of lack of malpractice insurance
Discipline: One-year suspension, stayed
A family favor landed Jennifer Ann Gorby of Salem, Ohio, a one-year suspension, stayed on conditions. The case serves as a reminder that no good deed goes unpunished and that every attorney must hold clients’ funds in a trust separate from their own funds.
In 2010, Gorby reduced her workload to approximately 25 hours per week and limited her practice to court-appointed criminal defense and guardian ad litem work.
A year later, Gorby’s sister contacted her for help in a foreclosure action. Gorby agreed to represent her sister and her husband at no charge. Gorby, however, failed to advise the couple that she did not carry professional liability insurance.
Gorby agreed to receive payments from the couple and hold the funds in trust until they saved enough money to stop the foreclosure. Having limited her practice to court-appointed work, Gorby did not maintain a client trust account. As a result, Gorby deposited the money she received from the couple into her business checking account.
During the representation, Gorby deposited a total of $6,400 from the couple and $4,600 for her own personal funds into her business checking account. Although Gorby was not authorized to use the funds for any purpose other than payment of their mortgage, Gorby wrote checks from the account to cover personal and business expenses unrelated to the foreclosure. The account balance soon dipped below the amount Gorby was supposed to be holding in trust of the couple and remained inadequate in varying degrees until she received a letter of inquiry from Disciplinary Counsel.
By November 2012, the couple had divorced and the ex-husband filed for bankruptcy. At this point, the bankruptcy trustee requested one-half of the money in entrusted funds be disbursed to him. After depositing more of her own funds, Gorby issued checks for the full amount entrusted to the former couple.
The Supreme Court of Ohio found Gorby’s conduct violated three Rules of Professional Conduct:
- 4(c) (requiring attorney to inform client if professional liability insurance is not maintained);
- 15(a) (hold property of clients in an interest-bearing client trust account, separate from the lawyer’s own property) and
- 4(c) (general misconduct).
The Court hit Gorby with a one-year suspension. However, the Court found two persuasive reasons to lesson Gorby’s sanction. First, the clients suffered no harm. Second, Gorby poses little, if any, threat to the public as her misconduct arose in the context of her contentious family relationship.
Disciplinary Counsel objected to these reasons lessening any sanction because they are not listed as mitigating factors in BCGD Proc.Reg. 10(B). The Court overruled Disciplinary Counsel’s objections stating the rule expressly requires the board to consider “all relevant factors” in determining the appropriate sanction. Thus, Gorby’s suspension is stayed on the condition that she engage in no further misconduct and submit to a one-year period of monitored probation focusing on law-office and trust-account management.