disciplinary handbook: volume v - Supreme Court - State of Ohio
disciplinary handbook: volume v - Supreme Court - State of Ohio
disciplinary handbook: volume v - Supreme Court - State of Ohio
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Heiland, Disciplinary Counsel v.<br />
116 <strong>Ohio</strong> St.3d 521, 2008-<strong>Ohio</strong>-91. Decided 1/17/2008.<br />
Case Summaries- 117<br />
As to Count I, respondent filed a complaint in common pleas court on behalf <strong>of</strong> his wife, her sister, and<br />
their parents to enjoin a health care company (Royal Manor) from discharging the mother from a nursing<br />
home (Palm Crest) for nonpayment <strong>of</strong> fees. The complaint asserted the mother was incompetent and an<br />
attached affidavit <strong>of</strong> respondent‘s wife stated the mother had a condition <strong>of</strong> suspected Alzheimer‘s<br />
disease so advanced she does not understand who or where she is. On January 31, 1998, a day after<br />
filing the complaint, respondent witnessed a document signed by the mother purporting to grant<br />
respondent‘s wife power <strong>of</strong> attorney to act on her behalf. Panel and board found violation a <strong>of</strong> DR1-<br />
102(A)(6). As to Count II, on February 4, 1998, the father granted power <strong>of</strong> attorney to respondent‘s<br />
wife. Between 1998 and 2001, respondent, with his wife‘s assistance, deposited the mother‘s pension<br />
checks and the father‘s pension and Social Security checks into his client trust account. He also deposited<br />
some <strong>of</strong> his wife‘s earnings from a church into his client trust account. During this time, he deposited<br />
$68,917.79 into his trust account, $40,000 <strong>of</strong> which came from the in-laws and his wife. He wrote 292<br />
checks for a total <strong>of</strong> $60,195, from his trust account, 262 <strong>of</strong> the checks were payable as cash.<br />
Respondent has no records accounting for the money. He testified he gave the money to his wife as<br />
attorney-in-fact for her parents. From February 1995 to February 1999, the father resided at retirement<br />
village (Anchor Lodge). Respondent‘s wife wrote four checks totaling $9,162 that were returned for<br />
insufficient funds. Anchor Lodge made repeated attempts to collect the debt and then caused criminal<br />
charges to be filed against respondent‘s wife for passing bad checks. The charges were dismissed after<br />
respondent paid Anchor Lodge $4,141.86 by a check drawn on his trust account. From February 5, 1999<br />
to January 6, 2000, the father resided at another facility (Parkvue), during which time respondent wrote<br />
92 checks on the IOLTA account with 87 checks payable to cash and totaling $28,530.86. Respondent<br />
could not account for the money received when he negotiated the checks other than to say he gave the<br />
money to his wife for the father‘s care. None <strong>of</strong> the withdrawals was used to pay Parkvue. When<br />
Parkvue discharged the father on January 6, over $53,000 was owed to Parkvue. On May 5, 2000, the<br />
father was admitted to another facility (Avon Oaks). Respondent wrote 86 checks on the trust account<br />
payable to cash for a total <strong>of</strong> $20,306.62. Respondent could not account for the money other than to say<br />
he gave the money to his wife to use for the father‘s care. None <strong>of</strong> the money was used to pay Avon<br />
Oaks. By November 2000, over $29,000 was owed to Avon Oaks. Respondent was indicted by a grand<br />
jury on June 5,2002 on three counts felony theft for his participation in the scheme to defraud his in-laws<br />
and various nursing homes from January 31, 1998 to April 30, 2001. He entered an Alford guilty plea on<br />
April 30, 2001 to three misdemeanor counts <strong>of</strong> defrauding creditors. Board concluded he used his client<br />
trust account to launder money from the couple‘s retirement funds. By depositing the money into his<br />
trust account and doling it out in cash to his wife, he and his wife were able to keep it from the nursing<br />
homes and Medicaid. Respondent overdrew his bank account on four separate occasions in August<br />
1998. Board found violations <strong>of</strong> DR 1-102(A)(3), 1-102(A)(4), 1-102(A)(5), 1-102(A)(6), and 9-<br />
102(B)(3). As to Count III, respondent‘s client trust account was entitled ―Legal Aid Trust<br />
Account/<strong>State</strong> <strong>of</strong> <strong>Ohio</strong>/Eric K. Heiland. Board found a violation <strong>of</strong> DR 1-102(A)(4) because<br />
respondent had no affiliation with Legal Aid or any other government-subsidized legal-services<br />
organization. As to Count IV, respondent agreed at his deposition to provide federal income tax return for<br />
1999, 2000, and 2001, but failed to do so. Twice the panel chair ordered him to produce the tax return,<br />
but he has not and at hearing refused to answer question regarding their production. Board found a<br />
violation <strong>of</strong> Gov.Bar R. V(4)(G). In aggravation, he acted with dishonest or selfish motive, showed a<br />
pattern <strong>of</strong> misconduct involving multiple <strong>of</strong>fenses, failed to cooperate fully and submitted false evidence,<br />
made false statements, engaged in other deceptive practices, refused to acknowledge wrongful nature <strong>of</strong><br />
his misconduct and that the victims suffered harm. BCGD Proc.Reg. 10(B)(1)(b), (c), (d), (e), (f), (g),<br />
(h). In mitigation, he had no prior discipline and has been sentenced for his misdemeanor. BCGD<br />
Proc.Reg.10(B)(2)(a), (f). Board recommended an indefinite suspension. Among other objections,<br />
respondent maintained the board was precluded from finding a Gov.Bar R. V(4)(G) violation because he<br />
invoked his Fifth Amendment right against self-incrimination. The court found his reliance on Spevack