Opinion
No. 91-857
Submitted June 26, 1991 —
Decided October 9, 1991.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Supreme Court, No. 90-71.
In a complaint filed December 17, 1990, relator, Geauga County Bar Association, charged that respondent, A. Milton Psenicka, had violated DR 4-101(B)(1), 4-101(B)(2), and 4-101(B)(3) (disclosure of client confidences) in Counts I and II, and DR 5-105(A) (conflict of interest) in Count II. A panel of the Board of Commissioners on Grievances and Discipline of the Supreme Court held a hearing on the matter on March 20, 1991.
The parties' stipulations established that respondent counselled Lynn Childs in March and early April 1990, relating to marital problems Lynn had with her husband, Clinton W. Childs. On April 3, respondent filed on Lynn's behalf a complaint for divorce together with accompanying motions, affidavits, and a proposed entry for a restraining order. Six days later, Lynn obtained new counsel. Respondent ceased his representation and forwarded her file to her new counsel. On August 6, 1990, Lynn complained to the relator asserting that respondent, without her permission, had been discussing this divorce case with Clinton and his brother. Lynn also sought a refund of the $500 retainer fee she had paid respondent.
In early September 1990, respondent agreed to represent Clinton, entered an appearance on his behalf in the divorce case by filing an affidavit opposing a family psychological evaluation, and wrote counsel for Lynn suggesting solutions to two remaining unsettled issues. On September 6, Lynn's counsel advised respondent of Lynn's vehement objection to respondent's representation of Clinton in the divorce case. On September 27, respondent moved to withdraw as counsel for Clinton.
The panel found the basic facts not in dispute as they were based on stipulations and documentary evidence. Only hearsay evidence supported the assertion that respondent revealed confidential matters he had learned from Lynn, and he vehemently denied the assertion. Respondent argued that the only issues remaining to be resolved between Lynn and Clinton arose after his representation of Lynn had terminated.
However, the panel concluded that much of the information disclosed by Lynn to respondent would be client confidences under DR 4-101(A), and that "these confidences remained at the heart of the dispute — the same subject matter * * *." Because of the "interplay of Canon 4 (regarding confidences) and Canon 5 (regarding conflicts of interest), [the panel concluded] * * * [i]t is difficult to imagine how at least some of the information confided to Respondent by the wife would not influence or at least preclude Respondent from exercising his independent professional judgment in later representing the husband. The interests of one or the other, or both, are bound to be compromised. `No man can serve two masters.' St. Matthew 6:24."
Because the basic subject matter of the litigation remained the same, the panel concluded the continuing litigation necessarily involved confidences of his former client and that "it would be impossible, in fully representing the husband, not to use information which was acquired from his former client. Respondent has violated DR 4-101(B)(2), DR 4-101(B)(3), and DR 5-105(A)." Respondent had no prior record of disciplinary action and neither the husband nor wife suffered any harm due to respondent's actions; hence, the panel recommended a public reprimand. The board adopted the findings, conclusions of law, and recommendation of the panel.
A.P. Leary and Emil F. Sos, Jr., for relator.
A. Milton Psenicka, pro se.
We agree with the board's findings and recommendation. Thus, we hereby publicly reprimand respondent for having violated DR 4-101(B)(2), 4-101(B)(3) and 5-105(A). Costs taxed to respondent.
Judgment accordingly.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.