[Cite as Disciplinary Counsel v. Gonzalez, 138 Ohio St.3d 320, 2014-Ohio-851.]




                      DISCIPLINARY COUNSEL v. GONZALEZ.
         [Cite as Disciplinary Counsel v. Gonzalez, 138 Ohio St.3d 320,
                                    2014-Ohio-851.]
Attorney discipline—Failure to notify clients of lack of malpractice insurance—
        Commingling—Failure          to   maintain     records     for   trust   account—
        Withdrawal from representation without permission of court—Failure to
        cooperate in disciplinary proceeding—Two-year suspension with one year
        stayed.
      (No. 2013-0222—Submitted June 5, 2013—Decided March 11, 2014.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                    Discipline of the Supreme Court, No. 12-048.
                                ____________________
        Per Curiam.
        {¶ 1} Respondent, Vincent Ferdinand Gonzalez of Cleveland, Ohio,
Attorney Registration No. 0008558, was admitted to the practice of law in Ohio in
1974. In 2000, we publicly reprimanded him for using undignified language and
shouting at another attorney during negotiations before a domestic-relations court
magistrate. Cuyahoga Cty. Bar Assn. v. Gonzalez, 89 Ohio St.3d 470, 733 N.E.2d
587 (2000).
        {¶ 2} In 2012, relator, disciplinary counsel, charged Gonzalez with
commingling personal and client funds in his client trust account, failing to
maintain records of client-related expenditures, misappropriating a portion of a
client’s settlement award, and abandoning another client on the final day of trial.
Although Gonzalez stipulated to many of the allegations in relator’s amended
complaint, he denied that most of his actions violated the Rules of Professional
Conduct. After a hearing, a three-member panel of the Board of Commissioners
                             SUPREME COURT OF OHIO




on Grievances and Discipline issued a report finding that Gonzalez had
committed most of the charged misconduct and recommending that we
indefinitely suspend him from the practice of law in Ohio, with reinstatement
conditioned on restitution to a former client. The board adopted the panel’s report
and recommendation in its entirety.
       {¶ 3} Gonzalez objects to the board’s findings of misconduct in three of
the seven counts against him.        Upon our review of the record, we sustain
Gonzalez’s objections in part and overrule them in part and find that the
appropriate sanction in this case is a two-year suspension with the second year
stayed and payment of restitution as a condition of reinstatement.
                                    Misconduct
                  Count one—notice of lack of liability insurance
       {¶ 4} Gonzalez is a solo practitioner concentrating in the areas of domestic
relations, criminal defense, civil litigation, real estate, and personal injury. He has
not maintained professional liability insurance since February 2007.            Under
Prof.Cond.R. 1.4(c), if a lawyer does not maintain professional liability insurance
over certain amounts, the lawyer must notify clients of this fact on a “separate
form * * * signed by the client.” The prescribed “separate form” is set forth at the
end of Prof.Cond.R. 1.4. At the panel hearing, Gonzalez testified that he notified
clients in his fee contract that he did not carry malpractice insurance, but at oral
argument, he acknowledged that he does not always use a fee or retainer contract.
Because Gonzalez did not use the prescribed separate notice form, the board
found, and we agree, that Gonzalez violated Prof.Cond.R. 1.4(c).
                Count two—commingling personal and client funds
       {¶ 5} In 2009, a jury awarded damages to Gonzalez’s wife in a personal-
injury case filed by her and Gonzalez. In July 2009, Gonzalez deposited his
wife’s award of $122,169.86 into his client trust account, and by the end of
August 2009, Gonzalez had disbursed $38,065 to pay their attorney’s fees and




                                          2
                               January Term, 2014




$50,500 to himself, his wife, and to cash. Gonzalez, however, kept the remaining
amount of his wife’s personal-injury award, $33,604.86, in his client trust
account, and over the next five months, he issued 25 checks drawn on his trust
account to various individuals and entities for personal items and services. For
example, in September 2009, he issued trust-account checks for car repairs and to
purchase kitchen cabinets; in November 2009, he issued a trust-account check for
chimney work; and in January 2010, he issued a trust-account check for tile work.
During that same time period, Gonzalez held another client’s funds in his trust
account. As a result, the board found that Gonzalez violated Prof.Cond.R. 1.15(a)
(requiring a lawyer to hold property of clients in an interest-bearing client trust
account, separate from the lawyer’s own property).          Relator also charged
Gonzalez with violating Prof.Cond.R. 8.4(h) (prohibiting a lawyer from engaging
in conduct that adversely reflects on the lawyer’s fitness to practice law). The
board, however, recommends that we dismiss the charge under Prof.Cond.R.
8.4(h) because Gonzalez did not mishandle or misappropriate any of the client’s
funds commingled with his wife’s personal funds.          We accept the board’s
recommendation and hereby dismiss the alleged violation of Prof.Cond.R. 8.4(h)
in count two.
                              Gonzalez’s objections
       {¶ 6} Gonzalez appears to object to the board’s findings here, stating in
his brief that the trust-account disbursements from his wife’s settlement were
requested by her, that he “did not hold money for clients,” and that his trust
account was “primarily used for insurance settlements.” Whether Gonzalez’s
wife authorized the trust-account disbursements, however, is irrelevant to the
alleged violation of Prof.Cond.R. 1.15(a). The problem was that Gonzalez held
his wife’s personal funds in his trust account for five months, during which time
period he had also deposited client funds. Prof.Cond.R. 1.15(a) expressly requires
a lawyer to hold property of clients “separate from the lawyer’s own property” in



                                        3
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an interest-bearing account. In addition, Gonzalez’s objection that he did not
“hold money for clients” in his trust account is contradicted by the record. During
the board proceedings, Gonzalez stipulated and testified that at the time he kept
his wife’s personal funds in his trust account, he had also deposited funds
belonging to a client in that account. Accordingly, Gonzalez’s objections to the
board’s findings in count two are overruled, and we agree that Gonzalez violated
Prof.Cond.R. 1.15(a).
                        Count three—Fernando Perez matter
       {¶ 7} On October 21, 2010, Gonzalez deposited a $20,000 settlement
check into his trust account on behalf of Fernando Perez, whom Gonzalez
represented in a personal-injury case.       Over the next two weeks, Gonzalez
disbursed $6,000 to himself for his attorney fees in the Perez matter, $5,000 to a
doctor related to Perez’s case, and $7,697.73 to Perez. Gonzalez, however, failed
to produce any records accounting for the remaining $1,302.27 from Perez’s
settlement. And within five months of depositing Perez’s settlement funds into
his trust account, Gonzalez overdrew the account by issuing trust-account checks
unrelated to Perez’s case. Specifically, in January 2011, Gonzalez issued a check
to the clerk of a court of appeals, although he could not establish the owner of the
funds for that check, and he also issued a $1,000 check to himself. And in March
2011, he issued two checks on behalf of a client who had no money in the
account.
       {¶ 8} Relator charged Gonzalez with misappropriating $1,302.27 from
Perez. Gonzalez disputed the allegation, claiming that he used the remaining
$1,302.27 from the settlement for expenses and fees relating to Perez’s case.
Although Gonzalez could not produce any receipts accounting for these alleged
case-related expenditures, he testified that Perez’s settlement statement indicated
how all of Perez’s settlement proceeds were disbursed.         Gonzalez, however,
refused to produce a copy of the settlement statement to relator, insisting that it




                                         4
                                January Term, 2014




was protected by the attorney-client privilege and that relator had the burden to
first obtain a release from Perez. Gonzalez also refused to ask Perez for a release
himself, claiming that Perez had no complaints about him, and therefore Gonzalez
did not want to unnecessarily involve Perez in the disciplinary matter.
       {¶ 9} Based on this record, the board determined that Gonzalez had
violated Prof.Cond.R. 1.15(a)(2) (requiring a lawyer to maintain a record for each
client on whose behalf funds are held), 8.4(c) (prohibiting a lawyer from engaging
in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(h).
                               Gonzalez’s objections
       {¶ 10} Gonzalez claims that relator failed to prove any rule violations
regarding his representation of Perez and specifically objects “to the conclusion
[that] he has been dishonest with his clients or that he did not give his clients what
they were entitled to receive from their cases.” In support, Gonzalez attached to
his brief an affidavit from Perez and a copy of the previously undisclosed
settlement statement.
       {¶ 11} We have recognized, however, that “Gov.Bar R. V provides for a
formal evidentiary hearing before a panel of the board and does not provide for
the introduction of additional evidence once the proceedings are before this
court.” Disciplinary Counsel v. Squire, 130 Ohio St.3d 368, 2011-Ohio-5578,
958 N.E.2d 914, ¶ 45, fn. 3. Accordingly, we will accept additional evidence at
this late stage only “under the most exceptional of circumstances.” Id., citing
Columbus Bar Assn. v. Sterner, 77 Ohio St.3d 164, 672 N.E.2d 633 (1996). Here,
Gonzalez could have called Perez to testify in his defense at the panel hearing,
and he could have submitted a copy of the settlement statement into the record
below—either in response to relator’s requests or as evidence at the panel hearing.
Gonzalez, however, chose not to and instead insisted that relator had the burden to
obtain the document from his client. On this record, no exceptional circumstances




                                          5
                              SUPREME COURT OF OHIO




exist that would allow Gonzalez to introduce these documents for the first time in
his objections.
       {¶ 12} Nevertheless, we sustain in part and overrule in part Gonzalez’s
objections in this count.     We agree with the board’s findings that Gonzalez
violated Prof.Cond.R. 1.15(a)(2) and 8.4(h).      Gonzalez failed to maintain or
produce receipts and other documentation accounting for $1,302.27 from Perez’s
settlement, and he also overdrew his trust account, issued two trust-account
checks on behalf of a client who had no funds in that account, issued a trust-
account check to the clerk of courts on behalf of a client he could not identify, and
failed to keep client ledgers for Perez’s account. In short, Gonzalez flagrantly
violated the disciplinary rules requiring that he maintain detailed records of the
money held and disbursed on behalf of clients, and that conduct adversely reflects
on his fitness to practice law.
       {¶ 13} However, we disagree with the board’s conclusion that relator
proved that Gonzalez misappropriated client funds or otherwise engaged in
conduct involving dishonesty, fraud, deceit, or misrepresentation in violation of
Prof.Cond.R. 8.4(c). In his amended complaint, relator alleged that Gonzalez
“misappropriated $1,302.27 belonging to Perez.” Although the board did not
expressly conclude that Gonzalez “misappropriated” from Perez, it found that
because Gonzalez “could not account for the missing $1,302.27,” he “committed
the violations alleged.”
       {¶ 14} In attorney disciplinary proceedings, the relator bears the burden of
proving, by clear and convincing evidence, the facts necessary to establish a
violation of a disciplinary rule. Squire, 130 Ohio St.3d 368, 2011-Ohio-5578, 958
N.E.2d 914, ¶ 34. Although relator proved that Gonzalez failed to account for
$1,302.27 in client funds—for which we are separately sanctioning him—this
misconduct alone does not necessarily show that Gonzalez also misappropriated
the money from Perez or defrauded him. “[M]isappropriation is ‘[t]he application




                                         6
                                 January Term, 2014




of another’s property or money dishonestly to one’s own use.’ ” Id. at ¶ 40,
quoting Black’s Law Dictionary 1088 (8th Ed.2009). The board did not cite any
evidence that Gonzalez had dishonestly used Perez’s money for his own purposes.
         {¶ 15} Instead, the board cited Disciplinary Counsel v. Weiss, 133 Ohio
St.3d 236, 2012-Ohio-4564, 977 N.E.2d 636, for the proposition that Gonzalez
had a duty to produce records establishing the proper disbursement of Perez’s
funds and because he refused to do so, he acted dishonestly with the money. The
board’s reliance on Weiss is misplaced. Weiss was a default proceeding in which
a former client of Weiss clearly believed that he was entitled to additional
portions of settlement funds held in Weiss’s trust account, and evidence in the
record supported the former client’s position. But Weiss moved to Florida and
would not respond to inquiries from his former client’s attorney or relator. Id. at
¶ 5-11. The board characterized Weiss as having “essentially gone into hiding to
avoid paying his client.”
         {¶ 16} In contrast, Perez did not testify against Gonzalez, and therefore
the record is unclear whether Perez believed that Gonzalez had misappropriated
any of his money. And this is not a default proceeding—Gonzalez repeatedly
testified that he had not misappropriated or acted dishonestly with any of Perez’s
money.     Weiss is factually distinguishable, and we cannot rely on Weiss to
presume that Gonzalez dishonestly used Perez’s money for his own use. On this
record, Gonzalez’s deficient recordkeeping and accounting practices are at least
as likely to blame for the missing funds.
         {¶ 17} Acts of misappropriation result in the “strictest discipline,” with a
presumptive sanction of disbarment. Disciplinary Counsel v. Kelly, 121 Ohio
St.3d 39, 2009-Ohio-317, 901 N.E.2d 798, ¶ 17, quoting Cleveland Bar Assn. v.
Belock, 82 Ohio St.3d 98, 100, 694 N.E.2d 897 (1998). Given the seriousness of
the charge and the consequences of a violation, we find that relator has failed to




                                            7
                            SUPREME COURT OF OHIO




prove by clear and convincing evidence that Gonzalez misappropriated Perez’s
money or otherwise acted dishonestly in violation of Prof.Cond.R. 8.4(c).
       {¶ 18} In sum, we sustain Gonzalez’s objection with respect to the
violation of Prof.Cond.R. 8.4(c) and hereby dismiss that charge. We overrule his
remaining objections relating to this count and find that Gonzalez violated
Prof.Cond.R. 1.15(a)(2) and 8.4(h).
               Count four—trust-account recordkeeping violations
       {¶ 19} Since February 2007, Gonzalez has not maintained client ledgers
for funds deposited in his trust account, nor has he performed monthly
reconciliations of his trust account or retained client records required for
reconciliations. Based on these recordkeeping improprieties, the board found that
Gonzalez had violated Prof.Cond.R. 1.15(a)(2) and 1.15(a)(5) (requiring a lawyer
to perform and retain a monthly reconciliation of transactions involving the
lawyer’s client trust account). We concur with the board’s findings.
                        Count five—Ramon Colon matter
       {¶ 20} In March 2011, Ramon Colon, a client of Gonzalez, gave him $400
to retain an expert. Gonzalez, however, placed Colon’s money in a client file,
rather than his trust account, and Gonzalez then paid the expert with a trust-
account check. Gonzalez also admitted that he did not maintain client ledgers for
Colon’s funds. Based on this conduct, the board found, and we agree, that
Gonzalez violated Prof.Cond.R. 1.15(a)(2) and 1.15(c) (requiring a lawyer to
deposit into a client trust account legal fees and expenses that have been paid in
advance).
                        Count six—Maria Samame matter
       {¶ 21} In 2009, Maria Samame, a Venezuelan native, hired Gonzalez to
represent her in a divorce case. According to Gonzalez, Samame discharged him
in July 2010 for financial reasons, but the trial judge would not release him as
counsel. Trial commenced in January 2011, and Gonzalez claimed that Samame




                                        8
                                     January Term, 2014




had discharged him again on the morning of the fourth day of trial. According to
the trial transcript, Gonzalez stated the following to the magistrate:


                  I am formally requesting that I be allowed to withdraw
         since I’ve been discharged twice in this case, and it was only at the
         behest of Judge Karner that I remain, because I was trying to help
         Miss Samame with understanding the process here.
                  And at this point, in as much as, again, it’s been very clear
         to me that this court is not going to award any attorney fees to Miss
         Samame, then I wish to withdraw. I’m not going to work for free.


         {¶ 22} The magistrate denied Gonzalez’s request to withdraw and ordered
him to continue his representation of Samame. Samame indicated that she could
not afford to pay Gonzalez, but the magistrate explained to her that he had not yet
made any decision on attorney fees and that because she had no legal background,
he would not allow her attorney to withdraw in the middle of trial.1
         {¶ 23} At that point, Gonzalez was in the middle of cross-examining
plaintiff, Samame’s husband, but after the magistrate denied his withdrawal
request, Gonzalez stated that he had no further questions. He then withdrew two
previously marked exhibits.             The magistrate asked Gonzalez whether he
understood the position in which his actions were placing his client, but Gonzalez
insisted again—despite the fact that the magistrate had already denied his request
to withdraw—that he had been discharged by his client.
         {¶ 24} Plaintiff’s counsel then testified regarding his attorney fees, and
Gonzalez again offered no questions on cross-examination. After plaintiff rested

1. Loc.R. 7 of the Court of Common Pleas of Cuyahoga County, Domestic Relations Division,
provides that an attorney of record may not be relieved of his or her responsibilities unless the
court permits the attorney’s withdrawal. The local rule further states that the trial court may deny
an attorney’s request to withdraw if a trial date has been scheduled.




                                                 9
                              SUPREME COURT OF OHIO




his case, Gonzalez informed the magistrate that Samame wanted to testify in
narrative form, but the magistrate ordered him to ask his client questions under
direct examination. The magistrate also pleaded with Gonzalez to represent his
client, explaining that the court had to make findings of fact for spousal support
and division of property and without evidence for her case, Samame would be in a
“dangerous position” and “really vulnerable.” The magistrate further questioned
whether Samame genuinely appreciated the danger that could result if she did not
offer any evidence into the record. Despite the magistrate’s pleading, Gonzalez’s
direct examination consisted of one question—“what do you wish to tell the
court?”—and after a brief narrative response by Samame, Gonzalez did not offer
any substantive follow-up questions. Nor did he call any other witnesses to
support Samame’s case-in-chief.      In addition, the magistrate had to order
Gonzalez to make a closing argument, which lasted only 30 seconds.
        {¶ 25} Despite Gonzalez’s fears regarding not getting paid, the magistrate
ultimately awarded attorney fees to Samame. Specifically, in his April 2011 entry
granting the parties’ divorce, the magistrate ordered plaintiff to pay Gonzalez
$1,754.05 in attorney fees.
        {¶ 26} At the panel hearing, relator called the magistrate and plaintiff’s
counsel to testify about Gonzalez’s conduct during the fourth day of Samame’s
divorce trial. The magistrate described Gonzalez’s effort as “[h]alf-hearted at
best,” and he testified that Gonzalez placed his client in an “untenable position”
and that he “wasn’t doing his job.” For his part, Gonzalez testified that Samame
discharged him because she could not afford to pay him and that he was only
following her instructions not to cross-examine any witnesses or otherwise
participate in the trial.
        {¶ 27} The board determined that relator’s witnesses corroborated
relator’s contention that Gonzalez “had failed to take the necessary measures to
protect Samame’s interests.”     Further, the board concluded that Gonzalez’s




                                        10
                                    January Term, 2014




conduct was “motivated by financial considerations and not by the wishes or
needs of Samame,” as evidenced by his statement to the magistrate that he would
not “work for free.” Accordingly, the board found that Gonzalez had violated
Prof.Cond.R. 1.2(a) (requiring a lawyer to abide by the client’s decisions
concerning the objectives of representation and to consult with the client as to
means by which they are to be pursued), 1.3 (requiring a lawyer to act with
reasonable diligence in representing a client), 1.16(c) (prohibiting a lawyer from
withdrawing from representation in a proceeding without leave of court if the
rules of the tribunal so require),2 8.4(d) (prohibiting a lawyer from engaging in
conduct that is prejudicial to the administration of justice), and 8.4(h).
                                   Gonzalez’s objections
        {¶ 28} Gonzalez claims that relator has not proven any rule violations
regarding his representation of Samame. Specifically, he reiterates his position
that Samame instructed him not to continue with the divorce case, and he further
points to the testimony of plaintiff’s counsel, who stated that Samame ultimately
received everything from the divorce to which she was entitled.
        {¶ 29} We overrule Gonzalez’s objections with respect to the board’s
findings that he violated Prof.Cond.R. 1.3, 1.16(c), 8.4(d), and 8.4(h). The fact
that Samame ultimately received a fair judgment in the divorce proceeding—to
the extent that is true—does not absolve Gonzalez’s professional misconduct.
After the magistrate denied Gonzalez’s request to withdraw and ordered that he
proceed with his representation of Samame, Gonzalez nonetheless continued to
insist that he had been discharged and displayed little, if any, effort to protect his
client’s best interests. He affirmatively withdrew exhibits that he had previously




2. The board’s report states that Gonzalez violated Prof.Cond.R. 1.6(c), which is a typographical
error, as relator’s amended complaint charged Gonzalez with violating Prof.Cond.R. 1.16(c) and
the board’s description of the rule matches Prof.Cond.R. 1.16(c).




                                               11
                              SUPREME COURT OF OHIO




marked, and the magistrate had to order him to conduct a direct examination of
his client and a closing argument.
       {¶ 30} In the end, the panel members, who observed Gonzalez and the
other witnesses at the panel hearing, determined that Gonzalez was more
concerned about his compensation than ensuring that Samame receive the most
equitable resolution in her divorce proceeding. “Unless the record weighs heavily
against a hearing panel’s findings, we defer to the panel’s credibility
determinations, inasmuch as the panel members saw and heard the witnesses
firsthand.” Cuyahoga Cty. Bar Assn. v. Wise, 108 Ohio St.3d 164, 2006-Ohio-
550, 842 N.E.2d 35, ¶ 24.           Accordingly, we accept the panel members’
conclusions here about Gonzalez’s motivations.
       {¶ 31} However, we cannot conclude that relator has proven by clear and
convincing evidence that Gonzalez also violated Prof.Cond.R. 1.2(a). That rule
requires a lawyer to “abide by a client’s decisions concerning the objectives of
representation” and “consult with the client” about those objectives. Here, relator
admitted that Samame refused to testify at the panel hearing. Thus, we do not
know the specific decisions she made about her case or whether Gonzalez failed
to abide by her decisions. Gonzalez testified that he consulted with Samame and
she instructed him not to ask any further questions on cross-examination. Neither
relator nor the board has pointed to any evidence demonstrating that Gonzalez
failed to abide by his client’s decisions. Indeed, the magistrate testified at the
panel hearing that it was “evident” that Gonzalez and Samame had discussed
whether he would proceed with the case. Accordingly, we cannot conclude that
there is clear and convincing evidence that Gonzalez violated Prof.Cond.R. 1.2(a).
       {¶ 32} Thus, we sustain Gonzalez’s objection with respect to the violation
of Prof.Cond.R. 1.2(a) and hereby dismiss that charge.          We overrule his
remaining objections relating to this count and find that he violated Prof.Cond.R.
1.3, 1.16(c), 8.4(d), and 8.4(h).




                                         12
                               January Term, 2014




                        Count seven—failure to cooperate
       {¶ 33} In October 2011, plaintiff’s counsel in the Samame matter
submitted a grievance to relator regarding Gonzalez’s conduct during that trial.
Relator sent a letter of inquiry to Gonzalez by certified mail, and despite
confirming receipt of the letter, Gonzalez failed to respond. Gonzalez also failed
to respond to a second letter sent by relator in December 2011.           Gonzalez
appeared for a deposition in January 2012 and testified that he received relator’s
letters but found them to be “of no consequence.” In May 2012, relator sent
Gonzalez letters requesting copies of client files relating to his representation of
Samame, Perez, Colon, and another former client, but Gonzalez did not respond
or object to the requests until September 2012.
       {¶ 34} The parties stipulated that Gonzalez violated Prof.Cond.R. 8.1(b)
(prohibiting a lawyer from knowingly failing to respond to a demand for
information by a disciplinary authority during an investigation) and 8.4(h). The
board accepted the parties’ stipulations, adding that “in light of [Gonzalez’s]
explicit contempt for the disciplinary process and his complete lack of responses
to the reasonable demands made by Relator,” clear and convincing evidence
supported the violation for Prof.Cond.R. 8.4(h). We agree that Gonzalez violated
Prof.Cond.R. 8.1(b) and 8.4(h).
                                     Sanction
       {¶ 35} When imposing sanctions for attorney misconduct, we consider
several relevant factors, including the ethical duties violated, the actual injury
caused, the existence of any aggravating and mitigating factors listed in BCGD
Proc.Reg. 10(B), and the sanctions imposed in similar cases. Stark Cty. Bar Assn.
v. Buttacavoli, 96 Ohio St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶ 16;
Disciplinary Counsel v. Broeren, 115 Ohio St.3d 473, 2007-Ohio-5251, 875
N.E.2d 935, ¶ 21.      The board recommends that Gonzalez be indefinitely
suspended, with reinstatement conditioned on payment of restitution to Perez in



                                        13
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the amount of $1,302.27. Gonzalez does not address the appropriate sanction in
his objections. Instead, he indicates that he is contemplating retirement and that
he submitted objections only to contest the board’s conclusion that he has been
dishonest with his clients. Upon consideration of the relevant factors, we find that
a two-year suspension with the second year stayed, along with payment of
restitution to Perez as a condition of reinstatement, is the appropriate sanction in
this case.
        {¶ 36} The board found the existence of four aggravating factors—a prior
disciplinary offense, multiple offenses, lack of cooperation in the disciplinary
process, and refusal to acknowledge the wrongfulness of his conduct. See BCGD
Proc.Reg.10(B)(1)(a), (d), (e), and (g). The board did not find any mitigating
factors. We concur in the board’s findings.
        {¶ 37} For precedent, the board again relies on Disciplinary Counsel v.
Weiss, 133 Ohio St.3d 236, 2012-Ohio-4564, 977 N.E.2d 636, a default
proceeding in which an attorney was charged—as Gonzalez was—with using his
client trust account as a personal account, failing to cooperate in the disciplinary
proceeding, and dishonestly converting a portion of a client’s settlement to his
own use. But in contrast to the facts here, in Weiss we found that the relator had
sufficiently proven all of the charged misconduct, including a violation of
Prof.Cond.R. 8.4(c) “by using dishonesty, fraud, deceit, or misrepresentation to
convert a portion of those [settlement] funds to his own use.”         Id. at ¶ 13.
Accordingly, we indefinitely suspended Weiss from the practice of law and
ordered that he make restitution to the client whose settlement funds he had
converted. Id. at ¶ 16. Because we do not find that the evidence here supports a
finding that Gonzalez similarly violated Prof.Cond.R. 8.4(c), a lesser sanction
than in Weiss is justified.
        {¶ 38} However, we nonetheless accept the board’s recommended
condition that Gonzalez make restitution to Perez. Although the evidence does




                                        14
                                January Term, 2014




not clearly and convincingly show that Gonzalez dishonestly converted the
$1,302.27 to his own use, Perez’s money remains unaccounted for.                  And
Gonzalez was either unable or unwilling to produce any receipts or any other
records demonstrating how he expended those client funds. Without any evidence
showing the proper disbursement of the missing funds, we must assume that the
money belongs to Perez, and therefore Gonzalez must make restitution to Perez in
the amount of $1,302.27.
          {¶ 39} To summarize, Gonzalez has failed to properly notify clients that
he lacks malpractice insurance, commingled client and personal funds, failed to
account for client funds in his trust account, failed to keep records for client-
related expenditures, failed to cooperate in this disciplinary proceeding, and
engaged in a range of misconduct during the trial of a client’s case. Given this
misconduct, and having reviewed the aggravating factors and finding no
mitigating factors, we hold that the appropriate sanction in this case is a two-year
suspension with the second year stayed on the condition that Gonzalez commit no
further misconduct during the term of his suspension. If Gonzalez fails to comply
with the condition of the stay, the stay will be lifted and he will serve the full two-
year suspension. In addition, reinstatement is contingent on the condition that
Gonzalez make restitution to Perez in the amount of $1,302.27. Costs are taxed to
Gonzalez.
                                                              Judgment accordingly.
          O’CONNOR, C.J., and PFEIFER, O’DONNELL, KENNEDY, and O’NEILL, JJ.,
concur.
          FRENCH, J., concurs with the sanction but would allow Gonzalez to submit
an accounting of the proper disbursement of settlement funds to Perez in lieu of
restitution to Perez.
          LANZINGER, J., dissents and would impose an indefinite suspension, as
recommended by the board.



                                          15
                     SUPREME COURT OF OHIO




                     ____________________
Joseph Caligiuri, Chief Assistant Disciplinary Counsel, for relator.
Vincent Ferdinand Gonzalez, pro se.
                  _________________________




                                 16
