Opinion
D.D. No. 81-24
Decided February 24, 1982.
Attorneys at law — Misconduct — One-year suspension — Acts warranting.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline.
The relator, Toledo Bar Association, instituted disciplinary proceedings against the respondent, John W. Kitchen, alleging that he was guilty of misconduct in violation of DR 1-102(A)(4), (5) and (6). The complaint centered upon events surrounding respondent's alleged conduct in attempting to sell property he knew to be stolen.
DR 1-102 provides, in part:
"(A) A lawyer shall not:
"* * *
"(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
"(5) Engage in conduct that is prejudicial to the administration of justice.
"(6) Engage in any other conduct that adversely reflects on his fitness to practice law."
Testimony adduced before the hearing panel of the Board of Commissioners on Grievances and Discipline tended to show that in March 1979, Kitchen telephoned a court reporter to inquire as to the value of a new stenotype machine. He made his inquiry at the request of his brother, who told Kitchen that he had acquired such a machine for $60. The reporter remarked that she found his inquiry interesting, as a stenotype machine had recently been stolen from her office. Kitchen called his brother and obtained the serial number of the machine. In a later conversation, Kitchen read the serial number provided by his brother to the court reporter, who advised him that the number corresponded to that of the stolen machine. Kitchen subsequently told the reporter's associate, Jane Beckett, that his "client" would sell the stenotype machine back to her for $60, although she had estimated the value of the machine at $255.
Although the court reporter testified that respondent recited the exact serial number of the stolen machine, respondnet testified that only the first five digits of the seven-digit number were discussed.
On April 5, 1979, an insurance claims representative of the Cincinnati Insurance Co. telephoned Kitchen. Cincinnati Insurance Co. had paid the court reporting firm $205 in compensation for the loss of the stolen stenotype machine. The claims representative testified that Kitchen stated that his client had paid $60 for a stenotype machine, and would sell it to the insurance company for $60. The claims representative advised Kitchen that if the machine in question was the machine stolen from its insured, the company was entitled to its return without regard to payment. Only after the representative made it clear that the company would not pay for the machine did Kitchen indicate he would check with his client to determine if it indeed was the stolen machine, and, if so, attempt to procure the return of the machine to the insurance company.
Under the court reporter's insurance policy, the insured was responsible for payment of a $50 deductible.
On April 2, 1979, the stenotype machine originally belonging to Jane Beckett was sold by Kitchen's brother to an undercover police officer for $60. Kitchen testified that his brother was subsequently convicted of both federal and state charges and sentenced to prison.
Respondent Kitchen was indicted on February 20, 1980, and charged with attempting to dispose of stolen property in violation of R.C. 2913.51 and 2923.02. On March 31, 1980, respondent was convicted of unauthorized use of property in violation of R.C. 2913.04 pursuant to a plea of no contest.
In accepting respondent's plea the trial court treated unauthorized use of property (R.C. 2913.04) as a lesser-included offense to disposing of stolen property (R.C. 2913.51). We express no opinion as to the correctness of such treatment.
The board determined that Kitchen had violated the Code of Professional Responsibility as alleged, and recommended that he be suspended from the practice of law for an indefinite period.
Mr. John G. Mattimoe, Mr. Walter M. Lehman and Mr. Maurice D. O'Connell, for relator.
Frank W. Cubbon, Jr. Associates Co., L.P.A., Mr. Frank W. Cubbon, Jr., Mr. Guy T. Barone, Messrs. Lucas, Prendergast, Albright, Gibson, Newman Gee and Mr. Rankin M. Gibson, for respondent.
Although respondent Kitchen initially testified that he never formed an opinion as to whether the stenotype machine in his brother's possession was stolen, he later admitted that he had felt that the machine might be stolen. Yet he persisted in conveying his brother's offer to sell the machine to persons believing it to be stolen property. Such conduct reduces the community's confidence in the professionalism of the bar.
The board concluded that upon being advised that the stenotype machine in his brother's possession was, in all probability, stolen, it was Kitchen's ethical duty, at the least, to advise Ms. Beckett of his client's identity and where she could contact his brother to determine whether the machine in question was hers. Instead the evidence showed that respondent attempted to negotiate sale of the machine to both the original owner and her insurer.
Although an attorney is under an ethical obligation pursuant to DR 4-101 to preserve the confidences and secrets of a client, no duty of confidentiality attaches to communications made outside an attorney-client relationship. Respondent admitted that his brother did not employ him to render professional services. Nor did his brother seek professional advice. No attorney-client relationship to which the duty of confidentiality attaches existed in connection with respondent's attempts to assist his brother in finding a buyer for the stenotype machine.
We concur in the board's finding that respondent's actions violated the Code of Professional Responsibility. It is the judgment of this court that respondent be suspended from the practice of law for a period of one year.
Judgment accordingly.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, PATTON, C. BROWN and KRUPANSKY, JJ., concur.
PATTON, J., of the Eighth Appellate District, sitting for HOLMES, J.