Opinion
D.D. No. 84-37
Decided December 31, 1984.
Attorneys at law — Misconduct — Indefinite suspension — Misappropriation of funds.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Bar.
The Office of Disciplinary Counsel, relator herein, filed a complaint with the Board of Commissioners on Grievances and Discipline ("board") against Robert C. Shaw, respondent herein, on December 5, 1983. The complaint charged respondent with violations of DR 1-102(A)(1), (3), (4) and (6), DR 7-101(A)(3), and DR 9-102(A) and (B) of the Code of Professional Responsibility.
A hearing was held on April 6, 1984 before the hearing panel of the board. Respondent and relator entered into stipulations of fact which establish the following.
The respondent was the attorney for the estate of John W. Cain in the Probate Court of Greene County. That court authorized respondent to sell certain real estate belonging to the Cain estate. After the property was sold, respondent retained approximately $4,600 of the sale price without the knowledge or consent of the Cain heirs or of the court. Respondent did not provide the heirs with an accounting of the funds. It is further stipulated that the $4,600 should have been placed in a trust account, which respondent concedes he failed to do. When confronted by the probate judge with his misappropriation of this sum, respondent was unable to account for it. He later paid the Cain estate the sum of $7,500, which represented the original $4,600 plus interest.
The parties further stipulated that respondent was appointed administrator for the estate of Alphonso Rhoden, Sr., in the Greene County Probate Court. Respondent acknowledges that he misappropriated $3,500 from the Rhoden estate without the knowledge or consent of the heirs or the probate court. This sum was improperly commingled with the funds of the Cain estate to enable respondent to pay to an heir of the Cain estate an amount which was due him. When confronted by the probate court with these missing funds, respondent reimbursed the Rhoden estate for the amount he had misappropriated.
At the hearing, respondent offered evidence in mitigation in the form of testimony from his physician that respondent suffered from extreme depression resulting from a painful disorder, requiring pain medication as well as repeated hospitalization. Respondent testified that he voluntarily terminated his law practice in the summer of 1983 due to his depressed condition, and that he has consulted a psychiatrist. He is not currently practicing law.
The board concluded that respondent did not suffer from a mental illness which would be the basis of a mental illness suspension under Gov. Bar R. V(10)(b). It was the finding of the board that the acts of respondent constituted violations of DR 1-102(A)(1), (3), (4) and (6), DR 7-101(A)(3), and DR 9-102(A) and (B). The board recommended that respondent be indefinitely suspended from the practice of law.
Mr. Angelo J. Gagliardo, disciplinary counsel, and Mr. Carl J. Corletzi, for relator.
Mr. Richard Cartwright, for respondent.
After a careful review of the evidence, this court finds that respondent violated DR 1-102(A)(1), (3), (4) and (6), DR 7-101(A)(3), and DR 9-102(A) and (B) of the Code of Professional Responsibility. Accordingly, we concur in the recommendation of the board of commissioners.
Therefore, it is the judgment of this court that respondent be indefinitely suspended from the practice of law.
Judgment accordingly.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and J.P. CELEBREZZE, JJ., concur.