Opinion
No. D.D. 74-6
Decided October 16, 1974.
Attorneys at law — Misconduct — Acts warranting indefinite suspension.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline.
Respondent, Dan D. Weiner, was admitted to the practice of law in Ohio in 1963, and has, since then, engaged in such practice in the city of Dayton.
This disciplinary matter came before the Board of Commissioners on Grievances and Discipline upon the complaint and certificate of the Dayton Bar Association, alleging certain violations by respondent of the Code of Professional Responsibility.
The complaint enumerates respondent's alleged willful breach of six specific portions of the Code: Canon 1, EC 1-5; Canon 1, DR 1-102(A)(5); Canon 2, DR 2-106(A); Canon 2, DR 2-110(A)(2); Canon 7, DR 7-106(C)(6); and Canon 9, DR 9-102.
The disciplinary rules and ethical considerations contained in the Code of Professional Responsibility are commonly denoted DR and EC, respectively.
EC 1-5 reads:
"A lawyer should maintain high standards of professional conduct and should encourage fellow lawyers to do likewise. He should be temperate and dignified, and he should refrain from all illegal and morally reprehensible conduct. Because of his position in society, even minor violations of law by a lawyer may tend to lessen public confidence in the legal profession. Obedience to law exemplifies respect for law. To lawyers especially, respect for the law should be more than a platitude."
DR 1-102(A)(5) reads:
"MISCONDUCT.
"(A) A lawyer shall not:
"* * *
"(5) Engage in conduct that is prejudicial to the administration of justice."
DR 2-106(A) reads:
"FEES FOR LEGAL SERVICES.
"(A) A lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee."
DR 2-110(A)(2) reads:
"WITHDRAWAL FROM EMPLOYMENT.
"(A) In general.
"* * *
"(2) In any event, a lawyer shall not withdraw from employment until he has taken reasonable steps to avoid foreseeable prejudice to the rights of his client, including giving due notice to his client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled, and complying with applicable laws and rules."
DR 7-106(C)(6) reads:
"TRIAL CONDUCT.
"* * *
"(C) In appearing in his professional capacity before a tribunal, a lawyer shall not:
"* * *
"(6) Engage in undignified or discourteous conduct which is degrading to a tribunal."
DR 9-102 reads:
"PRESERVING IDENTITY OF FUNDS AND PROPERTY OF A CLIENT.
"(A) All funds of clients paid to a lawyer or law firm, other than advances for costs and expenses, shall be deposited in one or more identifiable bank accounts maintained in the state in which the law office is situated and no funds belonging to the lawyer or law firm shall be deposited therein except as follows:
"(1) Funds reasonably sufficient to pay bank charges may be deposited therein.
"(2) Funds belonging in part to a client and in part presently or potentially to the lawyer or law firm must be deposited therein, but the portion belonging to the lawyer or law firm may be withdrawn when due unless the right of the lawyer or law firm to receive it is disputed by the client, in which event the disputed portion shall not be withdrawn until the dispute is finally resolved.
"(B) A lawyer shall:
"(1) Promptly notify a client of the receipt of his funds, securities, or other properties.
"(2) Identify and label securities and properties of a client promptly upon receipt and place them in a safe deposit box or other place of safekeeping as soon as practicable.
"(3) Maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accounts to his client regarding them.
"(4) Promptly pay or deliver to the client as requested by a client the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive."
The charges for violating Canon 1, EC 1-5 and DR 1-102(A)(5) relate to respondent's alleged misconduct before Neal F. Zimmers, Jr., Judge of the Montgomery County Court and Harold H. Galbraith, Judge of the Vandalia Municipal Court. Respondent was found guilty of contempt of court in a matter before Judge Zimmers, and the facts surrounding that occurrence are found in State v. Weiner (1974), 37 Ohio St.2d 11, in which case this court affirmed the contempt citation.
The incident before Judge Galbraith may be summarized as follows: In the course of his closing argument as defense counsel in a criminal trial, respondent said, "I want you to listen to the court's instructions and don't be trapped by the court's instructions." Judge Galbraith immediately ordered counsel into chambers and admonished respondent. Upon returning to the courtroom, respondent said to the jury, "I apologize for whatever I said" and "don't let the judge's instructions confuse you on aiding and abetting." At this juncture, the court declared a mistrial, and cited respondent for contempt. Later, however, Judge Galbraith withdrew the contempt charge. The board concluded that the evidence was insufficient to sustain a willful breach of Canon 1, EC 1-5 and DR 1-102.
IIThe charges for violating Canon 2, DR 2-106(A) relate to respondent allegedly charging or collecting illegal or clearly excessive fees from five of his clients: Harry E. Garrett, Jr., Maggie Williams, Richard A. Parr, Fred M. Miller and Shirley Ison.
The facts of the Garrett case are found in State v. Weiner, supra, and the board found a violation of DR 2-106(A).
The basis for the charge of respondent's breach of DR 2-106(A) in the Maggie Williams matter is that respondent charged an excessive fee for representing her in a shoplifting prosecution and for making a settlement with a house-siding contractor. The board found however that the evidence was insufficient to sustain the count and recommended that it be dismissed.
Richard A. Parr was represented by respondent in a trespassing prosecution, which ended in a jury verdict of acquittal. Parr testified that he was unable to pay a requested $100 retainer, that respondent later advised him that the fee would be on an hourly rate of $50 per hour, and that it would run "around $500." After the trial, respondent requested and received $1,500 for his services. The board found that the fee charged was not excessive, and recommended that the count be dismissed.
Fred M. Miller consulted respondent in connection with a contempt proceeding for nonpayment of child support. Miller admitted that respondent had advised him at the outset that the services would be charged at an hourly rate and that an exact bill could not be given, but that it would be $100 to $150. After representing Miller, respondent tendered a statement for $315 for 7 hours and 55 minutes, to which Miller objected. The board found that the evidence was insufficient to sustain the count and recommended that it be dismissed.
Shirley Ison consulted respondent about obtaining a divorce. Respondent allegedly quoted a fee of $300. Respondent filed the necessary papers, later discovering that Mrs. Ison had reconciled with her husband. Subsequently, Mrs. Ison requested that respondent reinstitute the divorce proceedings. Respondent again filed the necessary papers, but experienced unusual complications in making service of process on his client's husband. Fourteen months after commencement of the original filing, Mrs. Ison obtained an uncontested divorce. Respondent submitted a total bill for $1,068 based upon an hourly rate, to which bill Mrs. Ison objected. The board found that the evidence was insufficient to sustain the count and recommended that it be dismissed.
IIIThe charges for violating Canon 2, DR 2-110(A)(2), supra, relate to respondent allegedly withdrawing from employment without taking reasonable steps to avoid foreseeable prejudice to the rights of three of his clients: Garrett, Maggie Williams, and Shirley Ison.
The facts surrounding respondent's misconduct in connection with Garrett are fully reported in State v. Weiner, supra, and may be summarized as follows: Respondent was having difficulty in collecting the remainder of a retainer fee from Garrett. Garrett informed respondent that he desired to procure other counsel. Respondent did not object, and advised Garrett to be present with his new attorney at the trial. Respondent allegedly informed the prosecutor of his withdrawal from the Garrett case, asked that the information be passed along to the trial judge, and requested a return call if problems developed. On the date of the trial, Garrett appeared at the courthouse without counsel, and respondent failed to appear there or at another trial he had scheduled for that day, allegedly because he was ill and remained at home. The board found that respondent's conduct constituted a breach of DR 2-110(A)(2), supra, but recommended that "if this charge stood alone it would merit a reprimand, probably a public reprimand."
Respondent's misconduct toward Maggie Williams, on this count, is reported by the board as follows:
"Prior to what defendant [Williams] thought was the final hearing defendant had paid $320 and gave respondent a check for $50 which he marked `account paid in full' but in an ante room prior to the supposed final hearing, respondent informed defendant that he had billed her $50 an hour for everything and pulled out a $540 note for defendant to sign; that if defendant didn't sign he would merely leave it up to the judge. I will walk out and mark it off as a bad cause; that defendant could spend as much as 90 days in jail plus a $500 fine. After some remonstrance defendant's husband signed the $540 note and respondent required addition of words `on siding' to words `account paid in full' to last $50 check. Respondent then went into court and pleaded defendant guilty of lesser offense of trespassing, was assessed a fine of $100, which was paid out of her cash appearance bond.
"Defendant was of the opinion she was to be tried by court without a jury but respondent testified he had prearranged with the prosecutor to accept the plea to a lesser offense of trespassing."
Upon these facts the board concluded:
"The threat of withdrawal from employment under the circumstances here indicated is a breach of Canon 2, Disciplinary Rule 2-110 and would certainly merit a public reprimand if standing alone."
Respondent's alleged misconduct toward Shirley Ison may be summarized as follows: On August 9, 1971, Mrs. Ison obtained an oral decree of divorce from the bench. Several months later, respondent advised Mrs. Ison that she was not divorced because the $488 fee balance had not been paid, and that her case would be dismissed unless a judgment entry were filed. The judge inquired of respondent why the judgment had not been filed. Respondent responded that "he wasn't going to put it [the decree] on" as Ison had paid him but $600 on a fee of over $1,000. Whereupon, another attorney put the decree on at the judge's request.
Upon these facts the board concluded:
"* * * Refusal to proceed to hearing until fees are secured or paid is one thing; refusal to put on the entry after the hearing, which refusal has the effect of working a dismissal, is an entirely different matter," and constituted a willful breach of Canon 2, DR 2-110, supra.
IVThe charges relating to respondent's alleged breach of Canon 7, DR 7-106(C)(6), supra, are unspecified in the report of the board, and will therefore be regarded as abandoned.
VIn the final count, respondent is charged with:
"Willful breach of Canon 9, DR 9-102 in that respondent caused funds of clients to be deposited in bank accounts maintained without the state of Ohio in which were funds belonging to respondent, and in that respondent converted to his own use trust funds belonging to his clients."
The facts concerning the first portion of this count are reported by the board, as follows:
"Prior to 1964 respondent established a checking account in Creve-Couer, Missouri, which account he designated as a trust account and has continued to use this account and this account was still in existence at the time of hearing. Since coming to Dayton he also established two trust savings accounts in Homestead Savings and Loan in Dayton from which and to which he has transferred funds from and to the trust checking account in Missouri. He has established an Ohio trust account in First National Bank, Dayton, in March, 1973. Respondent could not tell how much in the various accounts was his own funds and how much was funds of various clients, merely that he had more funds in these accounts than he owed to clients, and that he had no general or master ledger or account to which he or any employee of his could refer and determine and report the exact amount of clients' funds in each account. He further indicated that interest from the trust savings accounts was paid to him and that he paid income taxes on the same and did not apportion it to the various clients' funds. This commingling of funds has existed for nearly a decade and was not terminated after the filing of the complaint, continuing apparently at the time of the hearing. This situation is in sharp contrast with his detailed bookkeeping, billing and collecting methods in evidence as to attorney fees. His handling of his trust accounts and clients' funds and his persistence in using a foreign trust account or an account designated by him as a trust account in another state constitutes a clear and willful breach of Canon 9 and Disciplinary Rule 9-102(A) and (B) (3) and is misconduct as defined in Section (5)(a) of Rule V of the Supreme Court Rules For The Government Of The Bar Of Ohio."
The second portion of the count relates to respondent's alleged mishandling of funds entrusted to him by a client, William H. Turner, which is summarized as follows: Turner consulted respondent in order to obtain custody of his son who resided with his mother in Kentucky. Respondent required Turner to deposit with him $480 "cash in trust for back child support" before he would undertake a custody proceeding. Turner delivered the $480 to respondent, but the custody matter was never filed. Subsequently, respondent advised Turner that, unless arrangements were made to start regular payment of attorney fees, respondent would apply the trust fund to his fees. Respondent eventually applied the trust deposit to his fees without Turner's consent, for which the board found a willful breach of Canon 9, DR 9-102, supra.
VIThe recommendation of the board reads as follows:
"In view of the collective and cumulative evidence of misconduct, and an apparent basic indisposition to a proper conduct of the practice of law with the interests of clients subordinated to his own interests in his mind, it is the recommendation of the Board of Commissioners on Grievances and Discipline of the Supreme Court of Ohio that respondent, Dan D. Weiner, be suspended for an indefinite period of time from the practice of law as provided in Section (6)(b) of Rule V of the Supreme Court Rules For The Government Of The Bar Of Ohio."
The matter is now before this court for consideration of the report of the board and the objections of respondent.
Mr. Richard G. Snell and Mr. Fred M. Izenson, for relator.
Mr. Horace W. Baggott and Mr. Raymond A. White, for respondent.
We have examined the record of the testimony taken at the hearing before the Board of Commissioners on Grievances and Discipline and the exhibits presented by both relator and respondent. After a careful analysis of such evidence as to each count passed upon by the board, this court agrees that the record amply supports the findings of the board that respondent has violated the provisions of Canon 1, DR 1-102(A)(5); Canon 2, DR 2-106(A); Canon 2, DR 2-110(A)(2); and Canon 9, DR 9-102, and that, therefore, respondent is guilty of misconduct as defined in Gov. R. V(5)(b).
We affirm the findings of the board and overrule respondent's objections thereto.
We come now to the recommendation of the board that respondent be suspended for an indefinite period from the practice of law pursuant to Gov. R. V(6)(b). In our review of the whole record, and in consideration of respondent's objections and contentions, we find no facts in mitigation or justification of his actions.
Therefore, the findings and report of the Board of Commissioners on Grievances and Discipline are confirmed, and it is the judgment of this court, pursuant to Gov. R. V(6)(b), that respondent, Dan D. Weiner, be suspended for an indefinite period from the practice of law.
Judgment accordingly.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.