Opinion
D.D. No. 85-13
Decided October 9, 1985.
Attorneys at law — Misconduct — Indefinite suspension — Violation of previous one-year suspension — Unauthorized practice of law.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Bar.
On May 11, 1983, the Office of Disciplinary Counsel, relator herein, filed a six-count complaint with the Board of Commissioners on Grievances and Discipline against Robert L. York, respondent. Each count of the complaint stems from respondent's conduct in connection with a real estate closing held on September 16, 1981.
In Count I, relator alleged that respondent violated DR 1-102(A)(3), (4) and (6), 6-101, 7-101(A), 9-102(A), (B)(3) and (4) by misusing portions of funds entrusted to him, resulting from the sale of real property, for his own benefit and to the detriment of others.
The relator alleged in Count II that respondent, while suspended from the practice of law for one year, served as an escrow agent for both the sellers and buyers in a real estate closing, deposited funds in his "Escrow Account," failed to distribute these funds in accordance with the instructions on the closing statements, and converted portions to his own use, constituting violations of DR 1-102(A)(4) and (6), 9-102(A), (B)(3) and (4).
It was alleged in Count III that respondent, by acting as an escrow agent at said closing, also engaged in the unauthorized practice of law in violation of the Supreme Court order of June 24, 1981, in that respondent charged an escrow fee and a fee from the title company for performing title work in violation of DR 1-102(A)(5) and (6).
Relator alleged in Count IV that respondent maintained attorney-at-law escrow account No. 20338320 from January 1, 1981 through October 1981; that for a portion of this time, respondent was not entitled to engage in the practice of law; that on four occasions, checks were not honored by the bank due to insufficiency of funds; and that on one occasion the account was overdrawn. Relator alleged that respondent's conduct in handling clients' monies constituted a violation of DR 1-102(A)(3), (4) and (6), 9-102(A), (B)(3) and (4).
Lack of recordkeeping in violation of DR 1-102(A)(6), 9-102(B)(2) and (3) was charged in Count V based on respondent's alleged inability to produce records of his handling of funds and property of a client.
In Count VI, relator alleged that respondent, in the course of the investigation pertaining to his conduct herein, forwarded to relator an affidavit which was false and in violation of DR 1-102(A)(4), (5) and (6) and the Attorneys' Oath of Office.
A hearing was held on August 15, 1984. Respondent was questioned by relator's counsel regarding the escrow account which was the subject of the various counts of the complaint.
Based on the evidence adduced at the hearing, the board found that, with respect to Count I, respondent violated DR 9-102(A), (B)(3) and (4). The board concluded that $16,107.70 had been entrusted to respondent and that respondent drew from the trust account at least $3,600 for his own personal use which resulted in the rejection of checks which had been written to two interested parties.
Finding that the relator failed to sustain its burden with respect to Count II, the count was dismissed by the board.
Pursuant to Count III, the board found that the evidence indicated that respondent's conduct at the real estate closing constituted an unauthorized practice of law in violation of the June 24, 1981 court order suspending respondent from the practice of law. The board noted respondent's use of his attorney-at-law escrow account, the past attorney-client relationship which he had had with one of the parties and his failure to disclose that he was under suspension, and the minimal involvement of another attorney in the real estate transaction. Resultantly, the board concluded that respondent had violated DR 1-102(A)(5). The board, however, did not find a violation of DR 1-102(A)(6).
The board dismissed Count IV based on insufficiency of evidence in the record.
Citing two particular instances and respondent's inability to produce records of his handling of clients' funds and his failure to properly identify the properties of his clients, the board concluded that respondent's lack of recordkeeping constituted a violation of DR 9-102(B)(2) and (3) but not DR 1-102(A)(6), and dismissed that latter charge as it related to Count V.
Finally, the board, finding that an affidavit attested to by respondent on May 3, 1983, in which he explained his conduct at the real estate closing contained falsehoods regarding the payment of taxes, determined that the relator had established a violation of DR 1-102(A)(4), (5) and (6) with regard to Count VI.
Pursuant to Gov. Bar R. V, the board adopted the findings of fact and conclusions of law of the panel and recommended that the respondent be indefinitely suspended from the practice of law.
Angelo J. Gagliardo, disciplinary counsel, and Mark H. Aultman, for relator.
W. Leo Keating and Daniel G. Keating, for respondent.
Having reviewed the record and the findings of fact and conclusions of law of the board, this court determines that there are ample facts to justify the board's findings that respondent violated DR 9-102(A), (B)(2), (3) and (4), and 1-102(A)(4), (5) and (6).
In addition, it is undisputed that respondent was previously suspended from the practice of law on June 24, 1981 for a period of one year. ( Bar Assn. v. York, 66 Ohio St.2d 485 [20 O.O.3d 404].) Gov. Bar R. V(7) provides in pertinent part: "* * * A person who has been suspended for a period of one year from the practice of law or who has been publicly reprimanded for misconduct, upon being found guilty of subsequent misconduct, shall be suspended for an indefinite period from the practice of law or permanently disbarred, depending upon the seriousness of such misconduct." (Emphasis added.)
Accordingly, it is the judgment of this court that respondent be indefinitely suspended from the practice of law, and it is so ordered.
Judgment accordingly.
CELEBREZZE, C.J., SWEENEY, LOCHER, HOLMES, C. BROWN, DOUGLAS and WRIGHT, JJ., concur.