Opinion
No. 89-1872
Submitted March 6, 1990 —
Decided July 3, 1990.
Attorneys at law — Misconduct — One-year suspension — Generating plethora of proceedings aimed at regaining fees denied by probate judge — Failure to preserve identity of client's funds — Failing to promptly deliver funds client entitled to receive — Failing to maintain complete records — Failing to promptly notify client of receiving client's funds.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Supreme Court, No. 16-88-B.
In an amended complaint filed on November 29, 1988, relator, Stark County Bar Association, charged that respondent, Ronald L. Russell, had violated, inter alia, DR 1-102(A)(4) (engaging in conduct involving fraud, deceit, dishonesty or misrepresentation), 9-102(A) (failing to properly preserve identity of client's funds), 9-102(B)(1) (failing to promptly notify client of receiving client's funds), 9-102(B)(2) (failing to promptly label and put client's funds in a place of safekeeping), 9-102(B)(3) (failing to maintain complete records and to account for client's funds in attorney's possession), and 9-102(B)(4) (failing to promptly deliver funds that the client is entitled to receive). The matter was to be heard by a panel of the Board of Commissioners on Grievances and Discipline of the Supreme Court on May 16 and 17, 1989, but the proceedings on May 16 were suspended when relator suggested that respondent had also violated DR 2-110(A)(3) (failing to promptly refund any unearned fees), 7-102(A)(1) (taking any action that serves to harass or maliciously injure another person), and 9-102(B)(4) since the complaint's amendment. On respondent's objection, the panel decided to continue the matter so that relator's new allegations of misconduct could be acted on in compliance with Gov. Bar R. V(10), and so that respondent could respond and prepare his defense to them.
Later on May 16, however, respondent's counsel initiated an off-the-record discussion with counsel for relator. When the parties finished, they indicated that a tentative agreement regarding all the charges had been reached and that the hearing could resume on the following day. Accordingly, the proceedings were reconvened on May 17, 1989, at which time written stipulations and exhibits were submitted.
In the stipulations, respondent agreed to the panel's consideration of the new allegations of misconduct, notwithstanding the procedures provided by Gov. Bar R. V(10), and also agreed that he had violated DR 1-102(A)(4), 9-102(A)(1) and (2), 9-102(B)(1) to (4), 2-110(A)(3), and 7-102(A)(1). The stipulations were signed by respondent and were discussed at length in his presence. Respondent acknowledged that he had agreed to the stipulations "freely" after they were read into the record. Several character witnesses were then presented on respondent's behalf.
Approximately two months after the hearing, respondent filed a pro se motion to withdraw his consent to the stipulations. However, in light of respondent's obvious understanding of and acquiescence in the stipulations, the panel overruled the motion. A second motion, filed at the same time, indicated that respondent's counsel during the hearing had withdrawn or been dismissed.
According to the stipulations and exhibits, respondent was hired by Yola Brunori in October 1985 to administer the estate of her brother, Ernest P. Carli. Brunori, who was the executrix and sole beneficiary under Carli's will, dismissed respondent as attorney for the Carli estate on or about May 14, 1987 because she was dissatisfied with his progress. Thereafter, however, Brunori discovered that respondent had paid himself approximately $12,000 in legal fees with proceeds from the sale of property in the Carli estate. Brunori had consented to the sale, but not to this use of the proceeds.
Respondent was able to pay himself this money without Brunori's knowledge because he used one or more trust accounts set up for his clients' funds generally as the checking account for the Carli estate. By January 17, 1986, respondent had deposited the sale proceeds into one of these accounts, and by May 16, 1986, he had charged his fee against the estate. However, respondent withdrew some of his fee on May 14, 1986, and some more of it on September 25, 1986. He withdrew the last $5,000 of his fee on March 17, 1987, allowing his money to remain with that of his clients for nearly a year.
Respondent attempted to bring the matter of his fees in the Carli estate before relator's Disputed Fee Committee, but the committee apparently refused to consider the dispute because a client had not initiated the complaint. During this same time period, respondent sought, inter alia, an order in the Carli estate case from the Stark County Probate Court that would allow him to complete and close the estate. However, on November 9, 1987, pursuant to Brunori's motion for a determination of respondent's fees, Probate Judge W.F. Spicer, sitting by assignment, found that respondent was entitled only to $8,211 of the $12,050 he had already received. In a nunc pro tunc order filed February 8, 1988, Judge Spicer ordered respondent to return the difference to the Carli estate. Judge Spicer's decision was affirmed on appeal.
Following Judge Spicer's November 9, 1987 ruling, respondent generated a plethora of proceedings purportedly aimed at regaining the fees denied him by that decision. A summary of these proceedings is listed in the stipulations as follows:
"14. On February 8, 1989, respondent filed a Civil Rule 60(B) motion for relief from judgment seeking to overturn the nunc pro tunc entry of February 8, 1988. * * *
"15. On March 3, 1989, respondent filed an `Affidavit of Prejudice and Disqualification' seeking the recusal of Judge Spicer. * * * Judge Spicer withdrew from the case.
"16. On April 26, 1989, respondent filed a notice with the probate court to depose the estate's new counsel Dennis R. Clunk. * * *
"17. On December 30, 1987, respondent filed a complaint [in the Court of Common Pleas of Stark County] against the grievant Yola Brunori and the Ernest Carli Estate seeking additional attorney's fees and praying for judgment in the amount of $3,000.00. * * * During the course of the litigation, the court found the allegations in the complaint against the Estate of Ernest Carli were without merit since the issue had been decided by the probate court which had exclusive jurisdiction.
"18. On February 23, 1989, respondent voluntarily dismissed the common pleas action [against Brunori and the Carli estate]. * * *
"19. On April 26, 1989, upon motion of counsel for the grievant and the estate, the [Stark County Common Pleas] court found that respondent [had] engaged in frivolous conduct and awarded $2,133.33 in attorney's fees to the Estate of Ernest Carli. * * *
"20. On April 27, 1989, respondent filed a motion for new trial and a request for findings of fact and conclusions of law [in the Stark County action]. * * * On May 8, 1989, an affidavit of prejudice and disqualification was filed by the respondent with the Supreme Court of Ohio seeking the recusal of * * * [the Stark County common pleas judge who had awarded fees]. * * *
"21. On February 23, 1989, the same day that the * * * [Stark County] action was dismissed, respondent filed a complaint in Alliance Municipal Court against Yola Brunori individually and as Executrix of the Estate of Ernest Carli. * * *
"22. On May 5, 1989, respondent filed an affidavit of prejudice and disqualification seeking the recusal of * * * [the municipal judge assigned to the case]. * * *"
According to the stipulations, however, respondent had agreed to dismiss all these matters and to repay the sum ordered by Judge Spicer to the Carli estate.
Based on the foregoing, the panel found that respondent had committed the disciplinary violations cited by the stipulations. It recommended that respondent be suspended from the practice of law for one year. The board adopted the panel's findings and its recommendation.
Vogelgesang, Howes, Lindamood Brunn, Richard S. Milligan, James B. Lindsey and Joseph E. Trester, for relator.
Charles W. Kettlewell, for respondent.
Having thoroughly reviewed the instant record, we agree with the board's findings of misconduct. We find the board's recommendation appropriate. Therefore, we order that respondent be suspended from the practice of law in Ohio for one year. Costs taxed to respondent.
Judgment accordingly.
MOYER, C.J., SHANNON, HOLMES, DOUGLAS and WRIGHT, JJ., concur.
H. BROWN and RESNICK, JJ., dissent.
RAYMOND E. SHANNON, J., of the First Appellate District, sitting for SWEENEY, J.
In my opinion, the appropriate sanction in this cause should be a one-year suspension with six months of that period suspended.
RESNICK, J., concurs in the foregoing dissenting opinion.