disciplinary handbook: volume v - Supreme Court - State of Ohio

Kealy, Cleveland Metro. Bar Assn. v.
125 Ohio St.3d 238, 2010-Ohio-1554. Decided 4/12/2010.
Case Summaries- 153
Respondent failed to carry out an employment contract, neglected several matters, failed to cooperate and
knowingly misrepresented facts in a disciplinary investigation, improperly borrowed $20,000 from a
client and failed to disclose the loan after the client‘s death while serving as the executor of the
client‘s estate. The board adopted the panel‘s findings. In Count I, respondent undertook defense of
Davis in an action by an automobile insurer to recover $13,000 from Davis for causing an accident with a
client of that automobile insurer. Respondent filed an answer and a counterclaim; the counterclaim
alleged injuries to Davis caused by the other driver, but the other driver was never joined as a party.
Respondent never replied to the automobile insurer‘s requests for admissions or its motion to dismiss
the counterclaim. Respondent also failed to appear at the final pretrial hearing. Neither respondent nor
Davis appeared at trial. The court granted a default judgment against Davis for $13,609.08. As to
Count I, the board found that this conduct violated DR 1-102(A)(5), 6-101(A)(3), 7-101(A)(2), and 7-
101(A)(3). Count II occurred during the disciplinary investigation of Count I. During an interview with
relator, respondent claimed that he never received notices of the pretrial or trail date, when he had in fact
received written notices from the court. As to Count 2, the board found that respondent violated
Prof.Cond.R. 8.1(a) and Gov.Bar R. V(4)(G), and Prof.Cond.R. 8.4(h). In Count III, respondent
represented Krawulski, a client with serious medical issues. Krawulski signed a general power of attorney
for respondent to handle his affairs and signed a will naming respondent as executor of his estate.
Respondent and his wife borrowed $20,000 from Krawulski through a promissory note. Respondent
signed the check using his power of attorney. When Krawulski died, respondent filed an application to
administer the estate, but did not disclose the $20,000 promissory note. Months later Krawulski‘s heirs
filed a motion to remove respondent as executor. The next day, respondent filed an inventory and
appraisal of the estate, but again did not disclose the $20,000 promissory note. Respondent soon after
resigned as executor of the estate. The new executor sued respondent for breach of fiduciary duty and
negligence. These claims were settled for $45,000. As to Count III, the board found that respondent
violated DR 1-102(A)(4), 1-102(A)(5), and 5-104(A). In aggravation, respondent engaged in a pattern of
misconduct, failed to completely acknowledge the wrongfulness of his behavior, was not forthcoming
during the disciplinary investigation, and caused actual harm to his clients. BCGD Proc.Reg.
10(B)(1)(c), (e), (g), and (h). In mitigation were respondent‘s lack of prior disciplinary record, and his
activity with the local legal aid society for 25 years and his ―staggering amount‖ of pro bono work, and
his activity in his community, with a long history of volunteer work for his church, local charities, and
other organizations. BCGD Proc.Reg. 10(B)(2)(a), and (e). The Board did not adopt the panel
recommended sanction of an 18 month suspension with 12 months stayed. The Board recommended a
sanction of an 18 month suspension with 6 months stayed. Sanctions in similar cases were considered,
Larson (2009), Peters (1999), Holder (2004), and Markovich (2008) in recommending an 18-month
suspension, with 6 months stayed. The Court adopted the board‘s findings of fact and conclusions of
law, but ordered an 18-month suspension with 12 months stayed on the condition of no further
misconduct. This was based heavily on his 39 years of practice with no prior disciplinary history and
his immense pro bono work and activity in the community. Chief Justice Moyer, joined by Justices
O‘Connor and Cupp, dissented. They believed that the dishonesty displayed by respondent required a
tougher sanction that the one imposed by the majority. They would have adopted the Board‘s
recommended 18- month suspension with only 6 months stayed.
Rules Violated: Prof.Cond.R. 8.1(a), 8.4(h); DR 1-102(A)(4), 1-102(A)(5), 5-104(A), 6-101(A)(3), 7-
101(A)(2), 7-101(A)(3); Gov.Bar R. V(4)(G)
Aggravation: (c), (e), (g), (h)
Mitigation: (a), (e)
Prior Discipline: NO Procedure/ Process Issues: NO Criminal Conduct: NO
Public Official: NO Sanction: 18-month suspension, 12 months stayed