Opinion
No. 89-1874
Submitted March 7, 1990 —
Decided July 18, 1990.
Attorneys at law — Misconduct — One-year suspension — Engaging in conduct involving fraud, deceit, dishonesty or misrepresentation with respect to a will and trust agreement — Failing to return client's bank files used in consumer and commercial debt collection cases.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Supreme Court, No. 88-55.
By amended complaint filed on April 17, 1989, relator, Akron Bar Association, charged respondent, Charles L. Parker, with two counts of misconduct involving, inter alia, violations of DR 5-101(A) (accepting employment when attorney's professional judgment on behalf of a client may be affected by the attorney's own interests), 1-102(A)(1) (violating a Disciplinary Rule), 1-102(A)(4) (engaging in conduct involving fraud, deceit, dishonesty or misrepresentation), 1-102(A)(5) (engaging in conduct prejudicial to the administration of justice), 1-102(A)(6) (engaging in conduct that adversely reflects on an attorney's fitness to practice law), 6-101(A)(3) (neglecting an entrusted legal matter), and 9-102(B)(4) (failing to promptly return client's property upon request). The matter was heard by a panel of the Board of Commissioners on Grievances and Discipline of the Supreme Court on July 26 and September 25, 1989.
With respect to Count One, the record establishes that respondent arranged for his father, Murray S. Parker, to execute a will and a trust agreement on or about March 19, 1986. At that time, Murray possessed considerable wealth, but was also ninety-eight years old, suffered from vision and hearing losses, experienced short-term memory lapses, and was otherwise in failing health. As a result, respondent prepared the will and trust papers for his father's signature, although Murray was an attorney and had practiced law with respondent in previous years. Respondent also provided Murray with the only asset that was placed in the trust on the day it was created — a check for $100 that Murray immediately signed over to the trust.
According to respondent, Murray directed him to draft the 1986 will, which revoked a will Murray had executed some six months earlier with another lawyer's assistance, in order to treat respondent and his other three children "equally." The earlier will named respondent and his sister, Edna Jean Parker, co-executors and, after making specific bequests to all four of Murray's children, provided for respondent and Edna to share equally in the residuary estate. In contrast, the 1986 will named respondent as its executor and contained only one bequest — that all Murray's personal and real property be placed in the trust created at the same time as the will. The trust designated two co-trustees, Murray and respondent, and provided that if either trustee died, the remaining trustee "[would] serve as the sole trustee of this trust."
Thus, under the 1986 will and trust agreement, respondent stood to become the sole trustee, a position for which the agreement provided, for all intents and purposes, absolute authority to manage and distribute the trust assets. For example, as sole trustee, respondent would have had the unchecked power to sell, lease, loan, invest, and encumber the trust assets. He would have been given sole discretion to determine the trust principal and income, and to invade the principal. He would have been permitted to compromise claims, presumably including an over $130,000 debt that he owed his father. Moreover, respondent would have been entirely responsible for disbursements from the trust, which included the discretion to decide the monthly allowances to be paid the four beneficiaries: himself, his sister, his half-brother and his half-sister. When the beneficiaries died, the assets remaining in the trust would have been passed as directed in respondent's will, with the exception that he could not cause his estate to receive these assets.
Murray died on May 8, 1987, leaving an estate valued at approximately 1.4 million dollars. Within hours afterwards, respondent recorded a deed documenting his sister Edna's transfer of her home to Murray and, thus, to Murray's estate. Murray had purchased this property, approximately two acres that included a large house built in 1914, seven garages and a carriage house apartment, for Edna in 1958 and had lived there with her and, later, her husband. The deed to Murray had been executed in 1958 along with another deed that transferred the property from the sellers to Edna. At that time, however, only the deed from the sellers to Edna was recorded and, for some reason, Murray retained Edna's deed to him for years thereafter. Apparently because he learned that Edna had put a mortgage on the property, Murray gave the deed to respondent around 1980, and respondent testified that Murray instructed him to file it "if anything happened" to Murray. Edna paid off the mortgage shortly before Murray died, but respondent recorded the deed anyway.
Edna and respondent's other siblings learned of the 1986 will and trust agreement about an hour after a memorial service for their father. Respondent presented each of them with these papers during a gathering at Edna's house and advised them that Edna's home was also included in Murray's estate. Thereafter, respondent arranged for an inventory of Edna's house and caused her telephone service to be disconnected.
Edna and her half-brother and half-sister eventually instituted legal proceedings against respondent as executor of Murray's estate, including, among others, a will contest action and an action to quiet title to the property where Edna and her father had lived. In the course of ancillary proceedings, respondent was held in contempt of court for failing to respond to discovery. These legal proceedings resulted in respondent's removal as executor of Murray Parker's estate, and in a court order quieting title to Edna's home in her. Further, a jury found the 1986 will and trust agreement not to be Murray's last will and testament.
As of the hearing before the panel, however, these matters were apparently all in the final stages of settlement. According to representations made by counsel, the parties involved have agreed to the March 1986 will and trust agreement's effectiveness, but also that respondent will be removed as trustee and replaced with Edna and their half-brother's son, John Parker. As for Murray's estate, Edna and John Parker will succeed the executor named by the court after respondent's removal. A final entry issued in these cases will evidently further reflect that the deed from Edna to her father is null and void.
Based on the foregoing, the panel found that respondent had violated DR 5-101(A) and 1-102(A)(1), (4), (5), and (6) in connection with Count One of the complaint. In doing so, the panel noted that respondent's evasiveness and lack of candor prevented it from crediting a significant portion of his testimony. The panel also expressed concern over respondent's efforts to avoid disciplinary measures by, in effect, "settling" the charges in Count One with Edna, the complaining witness.
With respect to Count Two, the record establishes that after November 1984, respondent represented the Akron branch of National City Bank in a number of consumer and commercial debt collection cases. In July 1987, Thomas Plant, the bank's chief counsel, asked respondent for a status report describing all the matters he was handling for the bank. Respondent did not comply with this request and, in September 1987, Plant requested the status report again in correspondence. Plant also advised respondent that the bank was considering the termination of his services in connection with the consumer accounts for which respondent was paid on a contingency basis. Respondent did not reply to this request either.
In October 1987, Plant directed another letter to respondent asking for an accounting of the case files respondent had in his possession. This letter also indicated that respondent's services were no longer necessary in the commercial debt collection cases, those for which respondent was paid on an hourly basis, and that he should return those files to the bank "without delay." Still, respondent did not reply.
In an effort to obtain these commercial account case files, Plant advised relator of respondent's failure to cooperate with his requests. This caused respondent to meet with Plant in December 1987 or January 1988 and give him a progress report on many of his cases, although it was not entirely up-to-date. Respondent did not bring the files the bank needed, but he told Plant that he would get the collection case files in shape for return to the bank. As a result, Plant withdrew his grievance with relator.
Respondent, however, did not return the commercial case files as promised. He also failed to return the Dailey case file that Plant had specifically demanded in a May 1988 letter. Thus, in July 1988, Plant advised relator again of respondent's failure to cooperate. Also in July, Plant wrote to respondent to specifically ask that he return the Haag case file, and his letter further advised that the bank was terminating respondent's services with respect to the Haag collection matter.
Respondent did not return the Dailey and Haag files until January 1989. He did not return the over three hundred fifty other case files, some of which had been requested almost a year and a half earlier, until February 14, 1989. As a result, the panel found that respondent had also violated DR 6-101(A)(3) and 9-102(B)(4).
Having found misconduct as alleged in both Counts One and Two, the panel recommended that respondent be suspended from practicing law for two years. The board adopted the panel's findings and its recommendation.
Peter T. Cahoon, Vincent J. Alfera, Stephen A. Fallis and James L. Wagner, for relator.
Thompson, Hine Flory, Richard E. Guster; and Charles W. Kettlewell, for respondent.
We agree that respondent committed the misconduct found by the board. However, our review of the record and the arguments submitted by the parties convinces us that a lesser penalty is warranted by this case. Accordingly, respondent is hereby suspended from the practice of law in Ohio for a period of one year. Costs taxed to respondent.
Judgment accordingly.
MOYER, C.J., HOLMES, DOUGLAS and WRIGHT, JJ., concur.
KOEHLER, H. BROWN and RESNICK, JJ., dissent.
RICHARD H. KOEHLER, J., of the Twelfth Appellate District, sitting for SWEENEY, J.
After a review of the record in this matter, I would not find misconduct as to Count One. I would, however, find misconduct as to Count Two. Based upon the respondent's professional history, a public reprimand would be more appropriate.
KOEHLER and H. BROWN, JJ., concur in the foregoing dissenting opinion.