Opinion
No. 91-1251
Submitted October 15, 1991 —
Decided December 18, 1991.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Supreme Court, No. 90-70.
Relator, Dayton Bar Association, filed a complaint with the Board of Commissioners on Grievances and Discipline of the Supreme Court ("board") against respondent, J. Robert Gross, alleging that respondent violated DR 1-102(A)(1), (3), (4) and (6). These disciplinary charges arose as a result of respondent's criminal conviction for grand theft in violation of R.C. 2913.02(A)(2).
DR 1-102 provides, in part:
"(A) A lawyer shall not:
"(1) Violate a Disciplinary Rule.
"* * *
"(3) Engage in illegal conduct involving moral turpitude.
"(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
"* * *
"(6) Engage in any other conduct that adversely reflects on his fitness to practice law."
The facts giving rise to respondent's criminal conviction involve respondent's control over his mother's financial affairs. In the latter part of 1985, respondent's mother, Carolyn L. Gross, was placed in a nursing home. Shortly thereafter, Carolyn Gross executed a power of attorney appointing respondent as her attorney in fact, and respondent's control of his mother's funds became, for all practical purposes, absolute. Between December 1985 and March 1988, respondent made a series of withdrawals from his mother's bank account and, without her knowledge or consent, used the funds to meet his personal financial needs. During this time, respondent was under substantial financial pressure due to failing business ventures and a divorce. The withdrawals totalled over $103,000 and resulted in the depletion of Carolyn Gross's funds. As a consequence, respondent was unable to make payments for his mother's nursing home care. Respondent did, however, execute a promissory note in favor of Carolyn Gross for each of the withdrawals.
Respondent's activities were eventually disclosed as a result of an investigation concerning his inability to make payments for his mother's nursing home care. Respondent was indicted for grand theft and pled no contest to the charge. Respondent was found guilty of the charge and was sentenced, but placed on probation. On July 25, 1990, this court suspended respondent from the practice of law pursuant to Gov.Bar R. V(9)(a)(iii).
On May 10, 1991, a panel of the board held a hearing with respect to relator's complaint. The evidence presented by relator did not establish that respondent performed any legal services for his mother. Respondent did not draft the power of attorney. The evidence did establish, however, that respondent had no right to use his mother's funds for his own purposes without her knowledge and consent. At the time of the hearing, respondent had made some restitution and had completed his probation. The record of the hearing indicates that Carolyn Gross's living arrangements were unaffected by respondent's conduct.
At the hearing, respondent presented the testimony of three witnesses who are members of the legal profession. The witnesses testified that respondent is well regarded in the legal community and that the legal profession or the public would not be harmed if respondent were reinstated to continue the practice of law. Respondent also presented a fourth witness who testified concerning respondent's good character. Additionally, respondent presented a letter from a probation officer which stated that respondent was an "ideal probationer," that respondent's conviction appears to have been an isolated incident as a result of financial difficulties, and that respondent should be afforded the opportunity to continue the practice of law.
At the conclusion of the hearing, relator recommended that respondent be indefinitely suspended from the practice of law. Respondent requested that his penalty be limited to suspension from the practice of law for the period of time he has already served on suspension.
Upon consideration of the evidence, the panel concluded that respondent violated DR 1-102(A)(1), (3), (4) and (6). The panel recommended that respondent be indefinitely suspended from the practice of law without credit for the time respondent has been on suspension. The board adopted the panel's findings of fact, conclusions of law and recommendation. The board further recommended that costs be taxed to respondent.
Mark A. Tuss, for relator.
J. Robert Gross, pro se.
Upon a complete and careful review of this matter, we find that respondent violated DR 1-102(A)(1), (3), (4) and (6), and we accept the board's recommendation that indefinite suspension is the appropriate sanction. Therefore, it is ordered that respondent be indefinitely suspended from the practice of law in this state. However, under the facts of this case, we find that respondent is entitled to be given credit for the time he has already served since our order of suspension of July 25, 1990. Costs taxed to respondent.
Judgment accordingly.
SWEENEY, HOLMES, H. BROWN and RESNICK, JJ., concur.
MOYER, C.J., and WRIGHT, J., dissent.
I would accept the recommendation of the board and not give credit for time served.
MOYER, C.J., concurs in the foregoing dissenting opinion.