Summary
In Columbus Bar Association v. Grelle, 14 Ohio St.2d 208, 237 N.E.2d 298 (1968), the attorney filed a personal injury action on behalf of the husband.
Summary of this case from Blum v. BlumOpinion
No. 84
Decided May 15, 1968.
Attorneys at law — Misconduct — Acts warranting reprimand — Adverse influences and conflicting interests.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline.
The respondent, Walter W. Grelle, Jr., was admitted to the practice of law in August 1938, and, with the exception of the four years that he served in the United States Navy during World War II, he has been engaged in practice in Columbus, Ohio, ever since. During his years of practice the respondent has been active in the bar associations and various fraternal, civic, and veterans' organizations. The complaint forming the basis of this disciplinary action is the only complaint that has ever been filed against the respondent.
The facts that led to the filing of this complaint by the Columbus Bar Association are as follows:
On April 23, 1963, the respondent filed a personal injury action on behalf of Lloyd I. Perine in the Franklin County Court of Common Pleas. On July 19, 1963, the respondent and his secretary witnessed the signing of a separation agreement between Lloyd I. Perine and his wife, Dorothy J. Perine. This agreement had been prepared by the respondent, but the terms had been previously agreed upon by the Perines, with little or no advice from the respondent. The part of this separation agreement that is relevant to this action provided that Mrs. Perine was to receive one-third of the net proceeds of Mr. Perine's personal injury case.
Mrs. Perine subsequently requested the respondent to obtain a divorce for her. It is clear that Mr. Perine knew of this request and acquiesced in it, and that Mrs. Perine knew that the respondent was representing her husband in the personal injury action. The testimony of Mrs. Perine and the respondent conflicted as to whether the respondent accepted the divorce case or declined it on the basis of conflict of interest. In any case, a divorce petition was filed in the Domestic Relations Division of the Franklin County Court of Common Pleas on behalf of Mrs. Perine in September of 1963. This petition was prepared by the respondent. It was signed, and the acknowledgment for it was taken by Richard J. Giovanetti, an attorney who rented office space in the same suite as respondent. The petition itself was in simple form, and it did not plead the facts constituting the alleged grounds of divorce.
At the hearing on the divorce petition on November 27, 1963, which was uncontested, the respondent appeared for Mrs. Perine, the reason given for his appearance being that attorney Giovanetti was out of town. A decree was granted which incorporated the terms of the separation agreement.
After the divorce, the former Mrs. Perine remarried and became Mrs. Pinto. She later obtained another attorney to enforce the child support order of $10 per week against Mr. Perine.
In February 1965, the personal injury action of Mr. Perine was settled by the respondent for $19,000, and respondent paid the net proceeds directly to Mr. Perine. On May 11, 1965, Mrs. Pinto called the respondent and asked about the personal injury case. Respondent then told her that the case had been settled, but refused to disclose the amount of the settlement without permission of Mr. Perine. On May 18, 1964, Mrs. Pinto filed a motion to reduce to a money judgment that part of the separation agreement which had formalized the agreement that she was to share in the net proceeds of the settlement. Respondent, representing Mr. Perine, successfully resisted this motion. The propriety of the other dismissing this action is not before us.
Subsequently, Mrs. Pinto brought these facts to the attention of the Columbus Bar Association which filed the complaint in this case. On these facts, the Board of Commissioners on Grievances and Discipline concluded that the respondent had violated his oath of office and Canons 6 and 37 of the Canons of Professional Ethics. The recommendation of the commissioners was that the respondent be suspended for an indefinite period from the practice of law.
The matter is before us on the findings of the board and the respondent's objections thereto, and for disciplinary action if we conclude that the facts properly found require such action.
Mr. Abraham Gertner, Mr. Robert R. Richards and Mr. Donald H. Rathbun, for relator.
Mr. George E. Tyack and Mr. James C. Justice, for respondent.
One of the major objections of respondent pertains to the conclusion of the board that his conduct violated Canon 6 of the Canons of Professional Ethics. Canon 6 reads as follows:
"Adverse Influences and Conflicting Interests.
"It is the duty of a lawyer at the time of retainer to disclose to the client all the circumstances of his relations to the parties, and any interest in or connection with the controversy, which might influence the client in the selection of counsel.
"It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts. Within the meaning of this canon, a lawyer represents conflicting interests when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose.
"The obligation to represent the client with undivided fidelity and not to divulge his secrets or confidences forbids also the subsequent acceptance of retainers or employment from others in matters adversely affecting any interest of the client with respect to which confidence has been reposed."
Respondent notes that there was no finding that he did not disclose to each of the Perines his representation of the other, and he argues that the evidence shows that there was, in fact, full disclosure of this mutual representation. We agree with respondent on this point. Dorothy Pinto testified at the hearing that when she went to the respondent's office it was with full knowledge and approval of her husband, Lloyd Perine. She also testified that she had previously agreed with Lloyd Perine that he would pay for any divorce received.
There was no misrepresentation by the respondent as to his position with respect to either of the parties. It appears that with respect to the separation agreement and the divorce appearance he was not primarily protecting anyone or advising anyone, but was rather carrying out the mutual wishes of the parties. Conflicting interests arose out of the separation agreement, but not until over a year after the divorce was final. Any representation of the wife by the respondent had long since ceased.
The agreement between the parties which had reference to a division of the net proceeds of the contemplated settlement of Mr. Perine's claim for damages contained no promise by the respondent to protect the rights assigned to Mrs. Perine at the time of distribution. There is no claim that there was any representation that attorney Grelle would represent her or protect her interest in that fund upon distribution. It is understandable, however, that Mrs. Perine might have concluded that this was to be one of Mr. Grelle's functions. The fact that such misunderstandings are likely to occur under such circumstances must lead to the conclusion that only in the clearest cases should counsel hazard to represent interests which are or may become adverse, even after disclosing his dual representation.
In retrospect, this was not such a case. Too many experienced lawyers have accepted such employment in separation or divorce matters under such circumstances, only to ultimately abandon the interest of one or the other of their clients. In such instances of dual representation, a party disappointed in the financial results, as was Mrs. Pinto, may validly argue after the fact that the dual representation brought about the omission from the agreement of specific language protecting her upon distribution of the anticipated settlement fund.
At all events, when Mrs. Pinto filed her motion to reduce to judgment that part of the agreement drawn by respondent which gave her a one-third interest in the proceeds of the personal injury settlement, Mr. Grelle should have withdrawn from the matter. His failure promptly to disclose to Mrs. Perine the fact that a settlement had occurred and that distribution to Perine had been made, and his ardent advocacy of the husband's adverse interest to the agreement violated the second paragraph of Canon No. 6, and was unprofessional conduct which justifies a reprimand.
We find, however, in view of all the facts of this case, including his full disclosure to the parties of his position and their consent to that position, that Mr. Grelle did not violate his oath of office. In view of the previously unblemished record of the respondent the reprimand which we here impose is judged to be suitable disciplinary action.
Judgment accordingly.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT, SCHNEIDER and BROWN, JJ., concur.