Opinion
No. 81-19
Decided February 24, 1982.
Attorneys at law — Misconduct — Permanent disbarment — Acts warranting.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline.
The relator initiated this cause with the filing of a complaint with the Board of Commissioners on Grievances and Discipline. A hearing was held in Toledo on July 31, 1981. At the hearing relator and respondent stipulated that the allegations contained in the complaint were, with one exception, true.
These allegations revealed that on September 7, 1971, respondent, Milton McCreery, was appointed executor of the estate of Vera Pamment. Thereafter, until being discovered, respondent commingled funds belonging to the estate with his own, and misappropriated these funds for his own use. When respondent filed his first, and partial, fiduciary account in September 1979, it was discovered that nearly $29,000 was missing from the estate. Respondent was removed from his position as executor of the estate, and he executed a promissory note payable to the heirs of the estate for the amount that was missing.
On October 14, 1980, the respondent pled no contest to a charge of grand theft, which arose out of his misconduct as executor of the estate. He was found guilty of this charge.
The second count of the complaint, also agreed to by stipulation, indicated that the respondent neglected to prepare and file, in a timely manner, federal and state estate tax returns, and that the respondent neglected to pay the estate taxes due in a timely manner. Consequently, the estate incurred interest and penalties which would not have been incurred had the taxes been timely paid.
The respondent contested only the amount that he owed the estate at the time of the hearing. Although he signed a promissory note in favor of the heirs for the amount that was missing from the estate, and later a default judgment was obtained against the respondent for that amount, he claimed to have partially repaid the estate.
Based upon the stipulations, the board found the respondent guilty of violating DR 1-102(A)(1) and (6), DR 6-101(A)(3), DR 9-102(A), and DR 9-102(B)(3) and (4), of the Code of Professional Responsibility. The board then recommended that the respondent be permanently disbarred from the practice of law.
Mr. Robert G. Clayton, Jr., Mr. Carl F. Dorcus and Mr. Frank E. Kane, for relator.
Mr. Milton McCreery, pro se.
In Columbus Bar Assn. v. Tuttle (1975), 41 Ohio St.2d 183, 184-85, this court stated:
"As the Supreme Court of California so cogently stated, `The rule against commingling "was adopted to provide against the probability in some cases, the possibility in many cases, and the danger in all cases that such commingling will result in the loss of clients' money."' Clark v. State Bar (1952), 39 Cal.2d 161, 168, 246 P.2d 1.
"It has been the consistent practice of this court in recent years to impose a penalty of indefinite suspension or of disbarment in cases involving commingling of funds.
"Such is, in our opinion, necessary, in order to ensure that the interests of the public are protected and to require that lawyers maintain a degree of personal and professional integrity of the highest standard."
The respondent does not challenge any of the findings made by the board. He merely asserts that he has paid a portion of the money back to the estate.
We concur in the recommendation of the board, and respondent is hereby permanently disbarred from the practice of law.
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.