Summary
In Wright, the attorney involved himself in a bankruptcy proceeding in which a client had failed to disclose assets, and the attorney received a two-year suspension with 18 months stayed.
Summary of this case from Disciplinary Counsel v. O'BrienOpinion
No. 90-1146
Submitted October 23, 1990 —
Decided March 27, 1991.
Attorneys at law — Misconduct — Two-year suspension modified on conditions and probation — Counseling clients not to disclose to a bankruptcy court an expectancy interest in an estate and in retirement benefits — Failure to inform bankruptcy court of false statements made by his clients about their assets at a creditors' meeting at which he was present while the clients were represented by another attorney.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Supreme Court, No. 89-73.
On December 18, 1989, relator, Columbus Bar Association, filed a complaint with the Board of Commissioners on Grievances and Discipline of the Supreme Court against respondent, Richard E. Wright, alleging seven violations of the Code of Professional Responsibility relating to respondent's conduct in regard to a bankruptcy proceeding involving Garold and Estella Edgington. On May 30, 1990, respondent filed an amended answer. A hearing before a panel of the board was held on June 1, 1990.
Respondent admitted to selling certain farm equipment to Garold Edgington in 1980 and taking a security interest by a second mortgage on Edgington's home to secure that debt four years later. Respondent also admitted to agreeing in May 1986 to represent Garold Edgington in his capacity as executor of his mother's estate; thus, he knew of Edgington's interest in the estate. Edgington ultimately received about $8,900 as beneficiary of his mother's estate.
Respondent further admitted to agreeing in August 1986 to represent Estella Edgington in obtaining early retirement benefits from her employer, and thus knew of her interest in the retirement funds. Mrs. Edgington ultimately received $3,751.35 in satisfaction of her claim.
Respondent also admitted that in 1987 he consulted with the Edgingtons about their financial difficulties and spoke to them about the possibility of filing a petition in bankruptcy. However, respondent stated that because he was a creditor he could not represent them in a bankruptcy action.
The Edgingtons retained another attorney for the bankruptcy action. Relator alleged that respondent counseled the Edgingtons not to disclose the expectancy interest in the estate and retirement benefits, and that respondent attended a July 28, 1987 meeting of creditors, where he heard the Edgingtons make false statements about their assets, but failed to disclose this to the bankruptcy court. Respondent admitted hearing the false statements, but denied advising the Edgingtons not to disclose their expectancy interests in the retirement fund and estate proceeds prior to the filing of the bankruptcy petition and again at the July 28, 1987 meeting.
However, in a letter dated July 31, 1987, respondent admitted "dragging * * * [his] feet on the estate" and acknowledged that he knew that the Edgingtons failed to inform the bankruptcy court of their respective expectancy interests. Moreover, it was only after Mr. Edgington fired respondent as attorney for his mother's estate in 1988 that respondent informed the trustee in bankruptcy assigned to the Edgingtons' case of the Edgingtons' unreported assets from the estate and pension funds.
Relator charged that respondent's conduct violated DR 1-102(A)(3) (engaging in illegal conduct involving moral turpitude), 1-102(A)(4) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation), 1-102(A)(5) (engaging in conduct prejudicial to the administration of justice), 1-102(A)(6) (engaging in conduct adversely reflecting on one's fitness to practice law), 7-102(A)(7) (counseling or assisting one's client in conduct that one knows to be illegal or fraudulent), 7-102(A)(8) (knowingly engaging in conduct contrary to a Disciplinary Rule), and 7-102(B)(2) (failing to reveal a fraud upon a tribunal).
The panel considered respondent's attendance and silence during the Edgingtons' first meeting of creditors, an affidavit of Juanita Wolcutt stating that she saw respondent conferring with the Edgingtons before and after the first creditors' meeting, and correspondence from respondent to the Edgingtons in which respondent acknowledged and appeared to ratify the Edgingtons' misrepresentations to the bankruptcy court.
The panel also thought it significant that respondent's notification of the Edgingtons' misrepresentations to the bankruptcy trustee came soon after he was fired by Mr. Edgington, more than one year after the misrepresentations had been made.
Based on the foregoing evidence, the panel concluded that petitioner had violated DR 1-102(A)(4), 1-102(A)(5), 1-102(A)(6), 7-102(A)(7) and 7-102(B)(2), and recommended a two-year suspension from the practice of law. The board adopted the findings and recommendations of the panel and further recommended that costs of the proceeding be taxed to the respondent.
Respondent filed objections to the board's recommendation, arguing that he was bound by the attorney-client privilege not to reveal the Edgingtons' misrepresentations to the bankruptcy court until his discharge and that the panel and board had made certain factual errors. In response, relator argued that the information respondent withheld from the bankruptcy court was of public record, and not privileged information under the attorney-client privilege, and that no attorney-client privilege is granted to information used to commit fraud.
Bruce A. Campbell, Jeffrey A. Lipps and Rankin M. Gibson, for relator.
Andrew S. Wentworth, for respondent.
We adopt the findings and recommendations of the board, but modify the sanction based on information received at oral argument that respondent is afflicted with alcohol addiction. Accordingly, we suspend respondent from the practice of law in this state for two years, but stay eighteen months of that suspension and place respondent on probation on condition that he receive treatment for his alcohol addiction and that the probation be supervised and monitored by relator as provided in Gov. Bar R. V(23). Costs taxed to respondent.
Judgment accordingly.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, H. BROWN and RESNICK, JJ., concur.
WRIGHT, J., not participating.