Opinion
No. 89-2212
Submitted March 14, 1990 —
Decided June 27, 1990.
Attorneys at law — Misconduct — Two-year suspension — Conviction for unauthorized use of property and falsification.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Supreme Court, No. 89-12.
In a complaint filed on April 21, 1989, relator, Office of Disciplinary Counsel, charged respondent, James C. Dodge, with eleven counts of misconduct involving, inter alia, violations of DR 1-102(A)(3), (4), and (5) (engaging in illegal conduct involving moral turpitude, conduct involving fraud, deceit, dishonesty, or misrepresentation, and conduct prejudicial to the administration of justice); 5-101(B) (accepting employment where litigation requiring the attorney's testimony is contemplated); 5-105(A) and (B) (representing clients in matters where the attorney's independent judgment is likely to be adversely affected and failing to discontinue multiple employment when necessary); 7-101(A)(1) and (3) (failing to seek client's lawful objectives and causing client prejudice or damage); 7-102(A)(3) and (6) (concealing matters an attorney is required to reveal and creating or preserving false evidence); and 9-102(A) (failing to preserve identity of client's funds or property). The matter was heard by a panel of the Board of Commissioners on Grievances and Discipline of the Supreme Court on October 27, 1989. After hearing the evidence presented, the panel dismissed Counts X and XI.
Respondent stipulated to nearly all of the complaint's factual allegations at the hearing. With respect to Count I, the record substantiates that on May 18, 1988, respondent pled guilty to having violated R.C. 2913.04 (unauthorized use of property) and 2921.13 (falsification), both misdemeanors. Respondent was convicted of those two offenses, but the court found them to be of "similar import," and sentenced him for only the second crime, falsification. Respondent was given a six-month jail term and a fine of $1,000. His jail sentence was suspended, however, and he was placed on probation for two years.
Respondent's convictions and the remaining counts of misconduct resulted from his professional relationship with Jimmy Headley, an intellectually disabled man of middle age. With respect to Counts II through IX, the record shows that Jimmy's brother, Kenneth Headley, looked after Jimmy and that Kenneth asked respondent to manage some of Jimmy's affairs in 1978, after Jimmy had received a substantial inheritance and then married for the first time. Respondent agreed and began to oversee, among other things, Kenneth's payments on a mortgage note executed on February 6, 1978, when Jimmy sold his interest in certain inherited property to Kenneth. (Kenneth paid off the note by July 26, 1986.) With Kenneth's consent, respondent deposited these and any other funds he received on Jimmy's behalf in various bank accounts. Although respondent was never formally appointed Jimmy's guardian and Jimmy did not give him power of attorney until March 26, 1986, respondent continued to make such deposits until Jimmy died on January 21, 1987.
When Jimmy died, his assets included two Miami Valley Bank certificates of deposit, one in the amount of $120,000, and funds in several bank accounts. The certificates and all but one of these bank accounts were in respondent's name as trustee. Upon learning of Jimmy's death, respondent, who was the Miami Valley Bank's legal counsel and also a member of the bank's board of directors, caused the bank to eliminate the $120,000 certificate of deposit and to issue two new certificates: one for $90,000 in respondent's and Kenneth's names; the other for $30,000 in respondent's name alone. Although these certificates of deposit were issued after Jimmy had died, respondent had them backdated to January 3, 1987.
While Kenneth Headley received the benefit of this and some of respondent's other actions in connection with Jimmy's estate, Kenneth was, by all accounts, entirely unaware that respondent was acting in his interest. Indeed, when respondent later arranged for Kenneth to receive a sustantial part of the $90,000 certificate of deposit, respondent did not explain to him how this money became available, leading Kenneth to believe that Jimmy had somehow left it to him.
Thereafter, Jimmy's surviving spouse, Ruth Headley (now Ruth Hendrickson), asked respondent to represent her as the executor of Jimmy's will. The will provided for Ruth to receive whatever remained in Jimmy's estate after his debts and funeral expenses were paid. Respondent agreed to represent Ruth, but he did not tell her about the original $120,000 certificate of deposit or what he had done with it.
In April 1987, respondent filed, in the Logan County Probate Court, an inventory of the assets in Jimmy's estate that did not mention the $120,000 certificate of deposit, although it did refer to $30,000 of the $90,000 certificate issued to respondent and Kenneth after Jimmy's death. In June 1987, respondent filed an Ohio Estate Tax Return in which he did not report as an estate asset the $120,000 certificate of deposit, although he did report the $30,000 as listed in the inventory. In August 1987, respondent filed a final accounting in the estate that also did not properly reflect the estate's assets.
Between Jimmy's death and the final accounting in his estate, respondent received a number of checks representing interest payments on the $90,000 certificate of deposit that had been issued in his and Kenneth's names. These checks were deposited into a bank account that was reported as an estate asset. However, respondent also received checks for interest on the $30,000 certificate of deposit that had been issued to him. He endorsed these checks and negotiated them for his personal use.
As for the $30,000 certificate of deposit itself, respondent deposited in his personal checking account three separate $5,000 checks from these funds during June and July 1987. He withdrew the balance, which apparently included $14.80 in interest, and deposited it in his personal checking account on July 27, 1987. On the same day, respondent wrote a $10,000 check on this account.
Respondent also redeemed the $90,000 certificate of deposit about this time. He placed these proceeds in his office trust account and then wrote two checks on the account. The first check was made payable to Kenneth in the amount of $60,000. The second check was made payable to Jimmy's estate in the amount of $30,088.75, including what appears to be $88.75 in interest. Thereafter, respondent deposited this latter amount in the estate's checking account.
Respondent's distribution of the estate's assets was eventually discovered. In October 1987, Ruth retained another attorney and the matter was brought before the probate court due, at least in part, to Kenneth's request for guidance in disposing of the $60,000 given to him by respondent. The probate court ordered both Kenneth and respondent to deposit all disputed funds and interest with the court. Kenneth complied; respondent did so later by depositing collected attorney fees and interest with the court.
Based on the foregoing, the panel found that respondent had violated DR 1-102(A)(3), (4), and (5), 5-101(B), 5-105(A) and (B), 7-101(A)(1) and (3), 7-102(A)(3) and (6), and 9-102(A). Before making its recommendation, the panel considered that respondent was a respected member of his local bar and that he had made a significant contribution through his years of community service. It also considered respondent's explanation for his conduct, which, while not offered as an excuse, convinced the panel that the conduct would never be repeated. The panel then recommended that respondent be suspended from the practice of law for eighteen months. The board adopted the panel's findings of misconduct, but recommended an indefinite suspension due to the gravity of the misconduct.
Specifically, respondent testified that he felt overprotective of Jimmy's and his brother's interests. Thus, during the course of administering Jimmy's estate, as well as the brief period of time before that, respondent chose to act on a request that Jimmy apparently made to him several months before Jimmy died, a time when Jimmy may have been threatened with divorce. According to respondent, Jimmy had asked him to make sure that Kenneth received a sum of money to "purchase the family farm" and that respondent was repaid for all the money that he had loaned Jimmy over the years.
J. Warren Bettis, disciplinary counsel, and Mark H. Aultman, for relator.
Dinsmore Shohl, Mark A. VanderLaan and Kenneth S. Resnick, for respondent.
Having thoroughly reviewed the instant record, we agree that respondent violated the Disciplinary Rules as found by the board and that this requires a severe sanction. However, because we believe it is unlikely that respondent will repeat his misconduct, we find an indefinite suspension inappropriate. Accordingly, we order that respondent be suspended from the practice of law in Ohio for a period of two years. Costs taxed to respondent.
Judgment accordingly.
MOYER, C.J., SWEENEY, DOUGLAS, WRIGHT, H. BROWN and GREY, JJ., concur.
HOLMES, J., dissents.
LAWRENCE GREY, J., of the Fourth Appellate District, sitting for RESNICK, J.
I would order a sanction of indefinite suspension.