Summary
reprimanding lawyer for accepting employment when he knew he could be called as witness
Summary of this case from Fognani v. YoungOpinion
No. 94-2308
Submitted December 7, 1994 —
Decided December 23, 1994.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Supreme Court, No. 94-24.
On April 18, 1994, relator, the Office of Disciplinary Counsel, filed a complaint against respondent, H. Paul Collins of Kent, Ohio, Attorney Registration No. 0021378, alleging two counts of misconduct.
Count I alleges that in 1990 respondent met with a potential buyer of property jointly owned by two of respondent's clients and received a check for $11,000 made payable to the "Collins Client Escrow Account." Respondent then drafted a purchase agreement designating M.K. Title as escrow agent for the transaction. However, the check was deposited in respondent's trust account and was never transferred to M.K. Title.
Count I further alleges that one of respondent's clients and the purchaser and his wife signed the purchase agreement. After signing the agreement, the purchaser learned of an encroachment on the property and advised respondent that he was rescinding the agreement. Despite the rescission, respondent advised his other client to sign the agreement, and despite receiving two subsequent letters from the purchaser rescinding the agreement, respondent delivered a warranty deed to the purchaser. The purchaser hired an attorney who demanded repayment of the purchaser's funds. Respondent refused to return the funds and distributed $4,000 to each client and kept $3,000 for anticipated legal expenses. Count I further alleges that respondent's conduct violated DR 7-104(A)(2) (giving advice during the course of representation, other than to secure counsel), 1-102(A)(4) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 1-102(A)(6) (engaging in conduct that adversely reflects on the fitness to practice law).
Count II alleges that the city of Ravenna filed suit to enjoin use of the property by respondent's clients and that the complaint was amended to name the purchaser as a defendant. The purchaser and his wife filed a third-party complaint against respondent and M.K. Title, and respondent's clients filed a third-party complaint against the purchaser and his wife. Count II further alleges that respondent represented his clients in the action despite having intimate knowledge about the facts of the case. He did not give testimony. Count II further alleges that respondent violated DR 5-101(B) (accepting employment if a lawyer knows or it is obvious that the lawyer should be called as a witness), 5-102(A) (failure to withdraw after undertaking representation if a lawyer learns or it is obvious that the lawyer ought to be called as a witness), and 1-102(A)(6).
Respondent filed an answer, admitting some facts and denying others, and denying misconduct. However, prior to hearing, relator and respondent entered into joint stipulations of fact in which respondent admitted most of the allegations in the complaint, including the allegation that his conduct violated DR 1-102(A)(6), 5-101(B), and 5-102(A). The stipulations further acknowledge certain character references received in respondent's behalf, and relator's agreement that respondent had fully cooperated during relator's investigation of the matter. The stipulations also state that respondent had appealed an adverse judgment against him in the matter to this court.
A three-member panel of the Board of Commissioners on Grievances and Discipline of the Supreme Court ("board") conducted a hearing on the matter on September 23, 1994. At the hearing, respondent tendered a check in restitution of the amount owed to the purchaser even though this court had not decided respondent's appeal.
Despite the stipulations, the hearing panel found that respondent's conduct did not violate DR 1-102(A)(6), as alleged in Count I of the complaint. However, it found that he did violate DR 5-101(B) and 5-102(A). It also instructed his counsel to retain possession of the profferred reimbursement check until its further direction and recommended that respondent be given a public reprimand. In a subsequent recommendation after this court's decision on respondent's appeal, it recommended that the amount tendered in restitution, plus interest, be paid to the purchaser.
The board adopted the findings and recommendation of the panel.
Geoffrey Stern, Disciplinary Counsel, and Alvin E. Mathews, Assistant Disciplinary Counsel, for relator.
Baker, Chapman Cahoon and Peter T. Cahoon, for respondent.
We concur with the findings and recommendation of the board. Respondent is hereby publicly reprimanded and ordered to make restitution. Costs taxed to respondent.
Judgment accordingly.
MOYER, C.J., A.W. SWEENEY, DOUGLAS, WRIGHT, RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.