Opinion
D.D. No. 84-47
Decided June 5, 1985.
Attorneys at law — Misconduct — Permanent disbarment — Commingling and conversion of client's funds — Making false statements — Falsification of documents — Neglecting legal matters.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Bar.
The Dayton Bar Association, relator herein, filed a complaint with the Board of Commissioners on Grievances and Discipline of the Bar ("board") charging Henry L. Gross, respondent herein, with violations of DR 1-102(A)(1), (3), (4) and (6), 2-110(A)(2), 6-101(A)(3), 7-101(A)(2) and (3), 7-102(A)(2) and (5), and 9-102(A). These charges centered on alleged misconduct arising from respondent's professional relationship with three individual clients: Mr. Eugene Allen, Mrs. Iva Thompson, and Seaman Morris Ivy. A hearing was conducted before a three-member panel of the board on March 5, 1984, and the following facts were developed.
In portions of its findings of fact, conclusions of law, and recommendation, the board makes reference to a Mr. Green. The record reflects that the board inadvertently used the name Green when it actually was referring to Allen.
Counts I through IV of relator's complaint involved respondent's representation of Allen. Count I involved specifically respondent's misuse of Allen's power of attorney. In January 1981, Allen retained respondent to prepare a power of attorney appointing respondent as Allen's attorney in fact. At that time, Allen was seventy-two years old and was recovering from injuries received in a recent accident. Pursuant to the power of attorney, respondent withdrew $10,721.45 from Allen's savings account and deposited this sum in respondent's trust account at Winters National Bank Trust Company. Respondent commingled and depleted these funds and failed to provide either Allen or relator's Ethics Committee with a proper accounting.
Respondent admitted that he placed the money at issue in his trust account. Respondent claimed that he was authorized to pay Allen's bills and to invest the money for Allen. Respondent contended that he had no intention of stealing from Allen, but was investigating certain other investment options.
The board rejected respondent's defenses. The board found that, as to Count I, respondent commingled and expended the $10,700 without the requisite accounting, in violation of DR 1-102(A)(1), (3), (4) and (6), and 9-102(A).
It was alleged in Count II that subsequent to the filing of the complaint, respondent apparently paid back to Allen the sum of $5,978.58, in return for the execution by Allen of a release withdrawing his complaint. Allen denied ever knowingly signing any such release. However, respondent provided relator's Ethics Committee with a release dated February 18, 1983, which respondent claims was signed by Allen. Relator alleged, inter alia, that respondent violated DR 7-102(A)(5), making a false statement of law or fact.
The board agreed with relator and found that if respondent did obtain Allen's signature on the release, it was done without full disclosure of the consequences to Allen. The board further concluded that if indeed such signature was obtained, Allen neither knew nor understood what he was signing. Accordingly, respondent was found to be in violation of DR 7-102(A)(5).
In Count III, relator alleged that while respondent acted as Allen's attorney in fact, he wrote a trust account check on behalf of Allen to the Schultz Nursing Home for $850 which was refused for insufficient funds. Because respondent offered no defense to this allegation, the board found him to be in violation of DR 7-101(A)(2) and 7-102(A)(5).
Relator alleged in Count IV that respondent "processed an application signed by Mr. Allen for Medicaid benefits stating that Mr. Allen did not have any assets either in savings or otherwise when, in fact, Mr. Allen had assets of approximately $5,000.00." Relator further claimed that respondent falsely reported to Social Security officials that Allen did not receive benefit checks from February through July 1981, when these checks actually had been sent to respondent's office address, and then cashed. Respondent denied any knowledge of these acts and stated that the application was signed by Allen. The board rejected respondent's defense and found him to be in violation of DR 1-102(A)(1), (3), (4) and (6), and 7-102(A)(2) and (5).
The remaining counts involved respondent's representation of two separate clients. Count V is based upon respondent's representation of Thompson. On February 17, 1981, Thompson retained respondent to defend her in a lawsuit. It was alleged that after the payment of a retainer fee by Thompson, respondent undertook her representation and filed an answer on her behalf. Thereafter, respondent failed to attend a scheduled deposition and did not appear for the trial on October 5, 1981. A default judgment was entered against Thompson at that time.
Respondent claimed that he had seen Thompson prior to the trial and had instructed her to secure different counsel. Respondent also claimed that he had orally withdrawn from the case during a pretrial conference. The allegations of respondent have not been substantiated.
The board found that respondent neither filed a motion to withdraw nor notified his client of his intention not to be present at trial. Thus, the board concluded that respondent was in violation of DR 2-110(A)(2), 6-101(A)(3) and 7-101(A)(2).
Count VI was premised upon respondent's failure to prepare a power of attorney for Ivy. On June 25, 1981, Ivy paid respondent $50 in cash to prepare a power of attorney prior to his departure for the United States Navy. Respondent failed to prepare the power of attorney, and in December 1981 Ivy filed a complaint with relator's Ethics Committee requesting a refund of his $50. There was testimony before the board that respondent admitted before the Ethics Committee that he accepted a $50 retainer fee and failed to prepare the power of attorney for Ivy. The board concluded that the respondent was in violation of DR 6-101(A)(3) and 7-101(A)(2).
In the final count of its complaint, relator contended that respondent failed to assist and cooperate in relator's investigation in contravention of various provisions of the Code of Professional Responsibility. The board declined to rule on this allegation, however.
The board recommended that respondent be indefinitely suspended from the practice of law. The board also recommended that the costs of these proceedings be taxed to respondent.
Smith Schnacke and Steven K. Dankof, for relator.
Henry L. Gross, pro se.
The Dayton Bar Association has advocated throughout this entire proceeding that respondent be permanently disbarred. Relator characterizes respondent as "unremorseful" and "beyond rehabilitation" and his conduct as intentional, fraudulent, and egregious. Respondent has offered numerous defenses and excuses for his conduct, insisting that a minimal penalty be imposed. We have carefully reviewed the record and find respondent's arguments without merit. For the following reasons, we adopt the findings of the board. However, unlike the board, we agree with the relator that respondent should be permanently disbarred.
With respect to Count I, respondent has admitted that he commingled Allen's funds with his own. This commingling of funds clearly constitutes a violation of DR 9-102(A). In Disciplinary Counsel v. Morton (1983), 5 Ohio St.3d 206, 208, this court stated: "* * * There are few ethical breaches which impact more negatively on the integrity of the legal profession than the misuse of a client's funds." In Toledo Bar Assn. v. Gruhler (1985), 16 Ohio St.3d 5, 6, we added: "This court's disciplinary decisions make it quite clear that misuse of client funds by attorneys will not be tolerated." In fact, in recent years this court has articulated a consistent policy of imposing either indefinite suspension or permanent disbarment in cases involving the commingling or other misuse of client funds. See, e.g., Columbus Bar Assn. v. Bryant (1984), 15 Ohio St.3d 25; Disciplinary Counsel v. Shaw (1984), 15 Ohio St.3d 125; Columbus Bar Assn. v. Cohodes (1984), 9 Ohio St.3d 83; Bar Assn. of Greater Cleveland v. Schnittger (1983), 3 Ohio St.3d 26; Butler Cty. Bar Assn. v. Green (1982), 1 Ohio St.3d 48; Toledo Bar Assn. v. McCreery (1982), 69 Ohio St.2d 359 [23 O.O.3d 322]; Akron Bar Assn. v. Hughes (1976), 46 Ohio St.2d 369 [75 O.O.2d 466]; and Columbus Bar Assn. v. Tuttle (1975), 41 Ohio St.2d 183 [70 O.O.2d 341].
Our review of the record reveals that respondent's misconduct entailed the commingling of Allen's funds with his own, as well as the ongoing conversion of those funds. Thus, we are in complete agreement with the board's findings as to Count I.
We are convinced that respondent's actions violated DR 7-102(A)(5) as alleged in Count II. This Disciplinary Rule prohibits an attorney from knowingly making a false statement of law or fact in the representation of a client. Allen's denial that he signed a release withdrawing his ethics complaint shows that respondent either forged or fraudulently induced his client's signature on that document. These actions, and respondent's subsequent denial of them, are violative of the cited Disciplinary Rule as determined by the board. In addition, respondent's actions contravened DR 1-102(A)(4) which prohibits a lawyer from engaging in any conduct involving dishonesty, fraud, deceit, or misrepresentation.
In Count III, relator alleged that respondent wrote a check on insufficient funds. Although respondent claimed that his actions were taken in good faith and that he "made good on the check within the week," this contention, even if accepted as true, is still not sufficient to absolve respondent from responsibility for violating the Disciplinary Rules. Cf. Columbus Bar Assn. v. Thompson (1982), 69 Ohio St.2d 667 [23 O.O.3d 541]. Thus, we concur with the findings of the board that respondent violated DR 7-101(A)(2) and 7-102(A)(5).
In Count IV, the board determined that respondent prepared and submitted a fraudulent Medicaid application for Allen in contravention of DR 1-102(A)(1), (3), (4) and (6), and 7-102(A)(2) and (5). This court has consistently imposed the penalty of indefinite suspension in cases involving the falsification of documents. See, e.g., Disciplinary Counsel v. Bell (1984), 15 Ohio St.3d 118; Columbus Bar Assn. v. Amos (1980), 62 Ohio St.2d 256 [16 O.O.3d 287]; and Cuyahoga Cty. Bar Assn. v. Whitaker (1975), 42 Ohio St.2d 1 [71 O.O.2d 1]. Our examination of the record indicates that respondent's actions were contrary to both the Disciplinary Rules and the case law dealing with the falsification of documents. We also find that respondent acted improperly in the receipt and handling of Allen's Social Security checks. We therefore agree with the findings of the board as to this count.
In Counts V and VI, respondent was accused of neglecting a legal matter entrusted to him by a client and accepting a retainer fee without performing professional services. In comparable cases, this court has imposed the penalty of indefinite suspension. See, e.g., Clermont Cty. Bar Assn. v. Meeker (1984), 14 Ohio St.3d 21; Cincinnati Bar Assn. v. Ebel (1983), 5 Ohio St.3d 145; Mahoning Cty. Bar Assn. v. Kelly (1983), 4 Ohio St.3d 188; Dayton Bar Assn. v. Moore (1982), 2 Ohio St.3d 11; and Cincinnati Bar Assn. v. McConnell (1981), 68 Ohio St.2d 60 [22 O.O.3d 263]. Despite ample notice of an impending trial date, respondent failed to appear in court on behalf of Thompson, thereby causing a default judgment to be entered against her.
Respondent also accepted a $50 retainer fee from Ivy, though he neglected to prepare the requested power of attorney. Respondent has offered no credible evidence rebutting these charges. We therefore agree with the board that, under these facts, respondent violated DR 2-110(A)(2), 6-101(A)(3) and 7-101(A)(2).
Subsequent to the hearing before the board, respondent produced two letters which purported to timely inform Thompson of respondent's decision to withdraw as counsel and allegedly expressed to Ivy respondent's inability to complete the power of attorney and his desire to return the retainer fee. Respondent completely failed to establish the validity of these letters, which were never received by the respective parties. For this reason, and because the letters are not properly part of the record, they are afforded no evidentiary weight in the present proceeding.
We are cognizant of the fact that respondent's actions, standing individually, may not justify permanent disbarment. In similar situations, such separate violations typically have been punished by the imposition of an indefinite suspension, although permanent disbarment has been imposed when warranted by the circumstances of the case. Though the board has recommended indefinite suspension, we are not bound by the board's recommendation, and have, on occasion, imposed a more stringent penalty than that recommended by the board. See, e.g., Butler Cty. Bar Assn. v. Green, supra; Lake Cty. Bar Assn. v. Needham (1981), 66 Ohio St.2d 116 [20 O.O.3d 102]; Cincinnati Bar Assn. v. Fennell (1980), 63 Ohio St.2d 113 [17 O.O.3d 68]; Ohio State Bar Assn. v. Stimmel (1980), 61 Ohio St.2d 316 [15 O.O.3d 389]; Ohio State Bar Assn. v. Talbott (1979), 59 Ohio St.2d 76 [13 O.O.3d 64]; and Columbus Bar Assn. v. Tuttle, supra. Thus, the reprehensible nature of respondent's actions, when viewed cumulatively, mandates that respondent be permanently disbarred from the practice of law in this state.
Judgment accordingly.
CELEBREZZE, C.J., SWEENEY, LOCHER, HOLMES, C. BROWN, DOUGLAS and WRIGHT, JJ., concur.