Opinion
No. 92-460
Submitted June 3, 1992 —
Decided August 12, 1992.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Supreme Court, No. 90-54.
On October 18, 1990, relator, Office of Disciplinary Counsel, filed a three-count complaint against respondent, William R. Callery, Jr. Three additional counts appeared in an amended complaint filed on August 26, 1991. Count I alleged violations of DR 1-102(A)(4) and (6) (conduct involving dishonesty, fraud, deceit or misrepresentation; conduct adversely reflecting on the fitness to practice law), 6-101(A)(3) (neglect of a legal matter), and 9-102(A) and (B) (client funds shall be separately maintained; attorney shall promptly pay funds to which client is entitled). Count II likewise charged respondent with violating DR 1-102(A)(6) and 6-101(A)(3). Count III claimed violations of DR 1-102(A)(6) and Gov.Bar R. V(5)(a) (failure to cooperate with investigation). The remaining counts uniformly alleged violations of DR 1-102(A)(4) and (6), 1-102(A)(3) (conduct involving moral turpitude), 5-104(A) (attorney shall limit business relationships with client) and 9-102(A) and (B).
With the exception of Count III, all of the charges against respondent arise from various real estate transactions for which respondent was retained.
Count I involved respondent's conversion to personal use of client funds in the amount of $4,000. During relator's investigation, respondent repeatedly promised to return the money, but failed to do so. Count II also involved conversion of client funds totalling approximately $5,000. Respondent's actions under Counts I and II, moreover, prevented him from closing the property transactions for which the funds were intended.
Conversion of funds was also present in Count V — $41,000 tendered by Robert and Elaine Clemons to respondent as trustee in connection with a real estate transaction. In addition, the Clemonses gave respondent, as trustee, a promissory note as part of the same transaction. Respondent assigned the promissory note to the Fifth Third Bank as collateral for a personal loan. The bank eventually sued the Clemonses, respondent and others when respondent defaulted on his obligations.
As to Count IV, respondent was contacted by Johnnie Hearn on behalf of Hearn's friend, Robert Harris, who was facing foreclosure. Respondent then initiated a series of transactions designed to convince Harris' bank that respondent had taken over the encumbered property and assumed the debt. These transfers culminated in respondent's acquisition of the property as trustee. As part of the deal, Hearn signed a promissory note to respondent for $39,200. No consideration was exchanged. Respondent used the note as collateral for a personal loan at a different bank, the Fifth Third Bank. When respondent defaulted on his obligations, the Fifth Third Bank sued Hearn, respondent and others. Hearn eventually prevailed on his cross-claim against respondent.
Count III stemmed from respondent's failure, on two occasions, to produce documents subpoenaed by relator. These documents have yet to be submitted. Respondent also failed to keep a scheduled appointment with relator.
Respondent did not answer either complaint, prompting relator to file a motion for default with the Board of Commissioners on Grievances and Discipline of the Supreme Court pursuant to Gov.Bar R. V(13)(B). Respondent again did not reply.
A three-member panel of the board eventually found prima facie evidence supporting all of the violations contained in Counts I, II, III, IV and V. However, as to Counts IV and V, the panel found that relator had failed to provide prima facie evidence that respondent violated DR 1-102(A)(3). As to Count VI, the panel found that relator had failed to present a prima facie case.
Relator recommended that respondent be indefinitely suspended. However, the panel, stressing "the severity and repetition of the violations, and respondent's lack of cooperation in resolving these matters," recommended that respondent be permanently disbarred. The board adopted the panel's findings of fact and conclusions of law. It also recommended that the costs of the proceeding be charged to respondent.
In response to a show cause order by this court, respondent filed objections to the board's recommendation. Essentially, respondent cited bad business investments for a deteriorated financial situation that he claimed caused him to commit the acts alleged. He also stated that he had made "many attempts" to make restitution to the aggrieved clients, but admitted that none of his clients had been "fully compensated."
J. Warren Bettis, Disciplinary Counsel, and Karen B. Hull, for relator.
William R. Callery, Jr., pro se.
We concur in the findings and recommendation of the board. Respondent is hereby permanently disbarred from the practice of law in Ohio. Costs taxed to the respondent.
Judgment accordingly.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.