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

Brown, Cincinnati Bar Assn. v.
121 Ohio St.3d 445, 2009-Ohio-1249. Decided 3/25/2009.
Case Summaries- 28
Respondent misappropriated a client‘s funds, failed to administer a decedent‘s estate after losing the
original copy of the will, ignored the client‘s requests for information and to return property, and then
was uncooperative in the disciplinary process. After respondent failed to answer the complaint that was
served on him, relator moved for default. A master commissioner, appointed by the board, made
findings of fact, conclusions of law, and recommended an indefinite suspension. The board accepted
these findings and the recommendation. In April 2007, respondent was hire to open and administer a
decedent‘s estate. The client gave respondent a check for $500 for his fees, a cashier‘s check that had
been made payable to the decedent for $739.42, and the decedent‘s will. Respondent deposited the
unearned fee into his personal account and signed and cashed the cashier‘s check without his client‘s
authorization. Respondent misappropriated the funds belonging to his client and the decedent‘s estate for
his personal use. He also lost the original will, failed to disclose the loss to his client, and failed to open
the estate in probate court. When the client tried to communicate with him, respondent failed to
return the calls. On three separate occasions, the client requested in writing that respondent return his
records and fee so that he could retain another attorney. Respondent never honored these requests.
And the client filed this grievance. Respondent failed to respond to an investigator‘s letter of inquiry.
In a phone conversation with an investigator, respondent admitted to losing the decedent‘s will.
Respondent promised, but failed to provide a written response to the grievance. Respondent then
canceled his appearance at one deposition, but appeared for a second one, where he promised to
return the client‘s misappropriated funds of $1,239.42 and files. Respondent did not return either.
Accepting the master commissioner‘s report, the board found violations of Prof.Cond.R. 1.3 for
failing to open the decedent‘s estate, 1.4(a)(1), 1.15(a), 1.15(c), and 8.4(c) for cashing the cashier‘s
check made payable to the decedent without the client‘s consent and misappropriating the money and
the legal fee, 1.4(a)(4) for failing to respond to the client‘s calls, and Gov.Bar R. V(4)(G) for failing to
cooperate in the disciplinary investigation. In mitigation, respondent has no prior disciplinary record. In
aggravation, respondent engaged in a pattern of misconduct, failed to fully cooperate in the
disciplinary process, and failed to make restitution. The board recommended an indefinite suspension.
The Supreme Court agreed with the findings of fact and conclusions of law and so ordered the
indefinite suspension. The court noted that ―[a]n indefinite suspension is an appropriate sanction when a
lawyer violates the standard of professional competence, diligence, and integrity by neglecting to
complete promised legal services, misappropriating funds, and failing to promptly return funds and other
property to which the client is entitled.‖ Citations to Torian, (2005), Verbiski (1999), Smith (2008), and
Harris (2006).
Rules Violated: Prof.Cond.R. 1.3, 1.4(a)(1), 1.4(a)(4), 1.15(a), 1.15(c), 8.4(c); Gov.Bar R. V(4)(G)
Aggravation: (c), (e), (i)
Mitigation: (a)
Prior Discipline: NO Procedure/ Process Issues: NO Criminal Conduct: NO
Public Official: NO Sanction: Indefinite Suspension