Opinion
No. 91-853
Submitted June 26, 1991 —
Decided September 25, 1991.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Supreme Court, No. 90-30.
Relator, Mahoning County Bar Association, in its complaint of April 25, 1990, charged that respondent, Gary M. Gilmartin, had violated DR 1-102(A)(4) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation) in Count I, 2-106(A) (charging or collecting an illegal or a clearly excessive fee) in Count II, and 2-106(B) (factors to be considered in determining the reasonableness of the fee) in Count III.
Both parties presented testimony and evidence at a hearing on the matter before a panel of the Board of Commissioners on Grievances and Discipline of the Supreme Court on January 25, 1991.
In November 1988, Sara Kaufman requested that respondent assist her in preparing a proof of loss in connection with her fire loss claim and that she be billed for his services on an hourly basis with payment deferred until the receipt of the insurance proceeds. Respondent states he agreed to the conditions with the exception that if negotiation or litigation became necessary, he would charge a twenty-two percent contingent fee. Kaufman disputes this was the arrangement. Respondent counseled his client, notarized the proof of loss, and wrote a letter to the insurance company. Kaufman's claim was recognized and, in settlement, the following checks were issued: $95,600, which was endorsed by Kaufman and respondent and submitted to the bank for satisfaction of a mortgage on the house that burned, and $7,630, which was endorsed by Kaufman and respondent and deposited in respondent's trust account. On or about May 12, 1989, the bank's check for $39,506.54, the balance of the proceeds, was endorsed by respondent and delivered to Kaufman. Despite repeated requests, respondent failed to account to his client for the $7,630 check. On June 27, 1989, Kaufman filed a complaint against respondent with the Mahoning County Bar Association and notified respondent that she was terminating his employment. Respondent then prepared a bill of $22,710.60 for his services, which was later presented by his secretary to Kaufman. Respondent contended that his former associate and his secretary stole money from him and that suit has been filed in an attempt to recover the amount of $7,630. Respondent also contended that the pressure of running for a municipal court judgeship influenced his conduct and judgment.
The panel found insufficient evidence to support the allegations of Count I and dismissed it. The panel found, however, that respondent's conduct violated DR 2-106(A) and (B) in that he charged a clearly excessive fee; that respondent exercised poor judgment in issuing his bill in anger; and that running for municipal judge and having an associate and secretary allegedly steal money from him and another associate allegedly betray him influenced his conduct and his judgment. The panel recommended that respondent make full restitution to Kaufman in the amount of $7,630 without reduction for any attorney fees and that a public reprimand be issued.
The board adopted the findings of fact, conclusions of law and recommendation of the panel, but with the additional recommendations that respondent be ordered to make full restitution within six months of the final order of the Ohio Supreme Court, and that costs of the proceedings be taxed to respondent.
William J. Kish and Robert S. Fulton, for relator. Gary M. Gilmartin, pro se.
Based upon a review of the evidence, the court adopts the findings, but modifies the recommendations, of the board. Respondent, Gary M. Gilmartin, is hereby publicly reprimanded. He is ordered to make full restitution of $7,630 to Sara Kaufman within sixty days of the date of this order without deduction for any attorney fees. In the event of his failure to make such payment, respondent will be immediately suspended from the practice of law in Ohio until such payment is made.
Costs taxed to respondent.
Judgment accordingly.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.