Opinion
D.D. No. 74-11
Decided February 5, 1975.
Attorneys at law — Misconduct — Permanent disbarment — Acts warranting.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline.
In January 1969, respondent, Edward R. Ostrander, was retained as attorney for the estate of Elizabeth Boyer, deceased, by the executrix for the estate. The executrix, residing some distance from respondent's law office and being elderly and unable to drive a car, signed a number of estate checks in blank and authorized respondent to complete the checks for the purpose of paying estate debts, including attorney fees.
During 1969 and 1970, respondent completed and cashed over 30 such checks, payable to himself as attorney fees, in the total sum of $19,600.
During respondent's representation of the estate, Ohio and federal estate tax returns, federal income tax returns and Ohio personal property tax returns were inaccurate and not timely filed, thus causing the estate to incur and pay substantial penalties and interest.
On July 14, 1972, upon motion by the executrix for a determination of allowable attorney fees, the Probate Court of Lake County found that the $19,600 received by respondent for attorney fees was "grossly excessive," and ordered respondent to make restitution to the estate in the sum of $15,800, which was the difference between the sum previously received by respondent and the sum found by the court to be allowable to respondent, $3,800. The court also ordered that respondent execute to the estate a cognovit note in the sum of $15,800, due and payable five years from date with interest at six percent per annum, that interest and $500 or more were to be paid annually on said note beginning with the first anniversary thereof and continuing until the fifth anniversary of said note, when the entire balance with interest was to be paid.
Respondent executed the cognovit note, but, as of the date of hearing in this court, he had made no payment thereon.
When respondent failed to make the initial payment on the note, he was indicted for embezzlement of $15,800 "having come into his control by virtue of [his] representation of the * * * [Boyer] estate," and having been converted "to his own use." To this charge, respondent entered a plea of "not guilty."
On June 20, 1974, respondent entered a plea of "guilty" to an information charging that he, "with intent to defraud, converted to his own use funds in the amount of $15,800," in violation of R.C. 2907.39, and the prosecutor entered a nolle prosequi on the embezzlement charge.
Respondent attributes all of the foregoing to a drinking problem. He stipulated that he became "a confirmed alcoholic during the years 1969 and 1970." The report of the Board of Commissioners on Grievances and Discipline reads:
"Relative to his [respondent's] drinking habits he stated he first became aware of it in November or December 1970; that he had a severe automobile accident in February 1971 and was arrested for driving while under the influence of intoxicants and entered a plea of no contest, and was found guilty of said charge. That he has been a complete abstainer of alcoholic beverages since the automobile accident; that his conduct in the handling of the Elizabeth Boyer estate occurred prior to the automobile accident; that he is ashamed of his activities in the handling of said estate and that he believes these transgressions would never have occurred if he had not had the drinking habit."
The board found respondent guilty of violating Canon 1, DR 1-102(3), (4) and (6), and Canon 6, DR 6-101[A](3), and thereby guilty of misconduct as defined in Gov.R. V(5)(a), and recommended that he be suspended for an indefinite period from the practice of law. Respondent does not object to the board's findings or recommendation.
The matter is now before this court for consideration of the report of the board.
Mr. Henry D. Rand, Jr., and Mr. Dennis M. Callahan, for relator.
Mr. Edward C. Redmond, for respondent.
We have examined the record of the testimony taken at the hearing before the Board of Commissioners on Grievances and Discipline and the exhibits presented by both relator and respondent. After a careful analysis of the evidence, this court agrees that the record amply supports the findings of the board that respondent has violated the provisions of Canon 1, DR 1-102(A)(3), (4) and (6), in that he engaged in illegal conduct involving moral turpitude, dishonesty and fraud, which adversely reflects on his fitness to practice law, and Canon 6, DR 6-101(A)(3), in that he clearly neglected legal matters entrusted to him.
In addition, this court finds that respondent has violated the provisions of Canon 2, DR 2-106(A), in that he collected a clearly excessive fee, and Canon 7, DR 7-101(A)(3), in that he damaged his client during the course of the professional relationship.
The foregoing violations, individually and collectively, constitute misconduct as defined in Gov.R. V(5)(a).
We come now to the recommendation of the board that respondent be suspended for an indefinite period from the practice of law.
In oral argument before this court, counsel for relator explained the basis for its recommendation that indefinite suspension be the degree of discipline imposed. Counsel conceded that the misconduct involved fraud and moral turpitude and had resulted in serious harm to a client and to the legal profession, but advised that respondent's prior "unblemished record" and the cessation of respondent's "drinking problem" had been considered in arriving at the board's recommendation as to the degree of discipline to be imposed.
We do not agree that those two factors lessen the impact of respondent's flagrant violations of Canons 1, 2, 6 and 7. A client has been grievously injured and the integrity of the legal profession has been brought into question. Respondent charged and received grossly excessive fees in the sum of $15,800. By order of the court he executed a cognovit note to repay those fees, a court ordered him to repay those fees, and, upon being convicted for converting those fees, respondent was given a suspended sentence in a judgment ordering him to make restitution. However, respondent has yet to make an initial payment in satisfaction of that obligation.
"[I]n the last analysis it is the desire for the respect and confidence of the members of his profession and of the society which he serves that should provide to a lawyer the incentive for the highest possible degree of ethical conduct. The possible loss of that respect and confidence is the ultimate sanction. So long as its practitioners are guided by these principles, the law will continue to be a noble profession. This is its greatness and its strength, which permit of no compromise." Preamble to the Code of Professional Responsibility, as adopted by the American Bar Association
In addition, respondent's client incurred substantial penalties and interest charges as a result of respondent's failure to timely file tax returns. Nowhere in this record does respondent specifically recognize an obligation to make his client whole with regard to tax penalties and charges caused by him.
In view of the foregoing, it is the judgment of this court, pursuant to Gov.R. V(6)(a), that respondent, Edward R. Ostrander, be permanently disbarred from the practice of law.
Judgment accordingly.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.