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

Taylor, Disciplinary Counsel v.
120 Ohio St.3d 366, 2008-Ohio-6202. Decided 12/4/2008.
Case Summaries- 327
For over 20 years Juan Rios (Juan) and his wife Piccola were respondent‘s good friends and clients. In
May 2004, Juan consulted respondent. Juan was concerned that Piccola‘s daughter Joann had stolen
money from his bank account. Juan and Piccola were both terminally ill. He did not want Joann to
inherit anything upon either‘s death. Juan wanted his own daughter Elizabeth who was living in Puerto
Rico to receive everything. Respondent prepared a will for Juan, designating Elizabeth as sole
beneficiary. To defeat the surviving-spouse election that would allow his wife to take against the will,
he prepared a quit claim deed with a dower clause, transferring the couple‘s home to Elizabeth. He
prepared a durable power of attorney for Juan, giving Elizabeth complete authority over his affairs. On
June 2, 2004, respondent went with his secretary to the the Rios home to execute the will, power of
attorney, and quitclaim deed. The couple was bedridden. Respondent did not know that Piccola also
suffered from dementia. Neither Juan nor Piccola could read English. Respondent spoke no Spanish.
Elizabeth could not speak or read English, but a relative Elba Torres (Torres) interpreted for her. No
one interpreted for Juan or Piccola. Without discussing the significance of the instruments, respondent
obtained Juan‘s signature on the will and the power of attorney. Respondent and his secretary signed as
witnesses. He obtained Piccola‘s signature on the quitclaim and had Elizabeth sign the deed on Juan‘s
behalf. Juan died two days later on June 4, 2004. The next day Piccola, who had been in and out of
hospices, was readmitted to hospice as an emergency placement. Respondent prepared a will for Piccola
devising all her property to Elizabeth and designating her executor and he drafted a power of attorney
giving Torres, because she spoke English, complete authority over Piccola‘s affairs. On June 8, 2004,
respondent took the will and power of attorney to Piccola. Neither he nor the hospice staff told her Juan
had died. At some point she told respondent she wanted to leave everything to Juan. Respondent had
her sign the will and power of attorney, despite her incapacitation and probable incompetence. Torres
later withdrew all the funds from Juan and Piccola‘s bank account and none were used for Piccola‘s
welfare. While purporting to act in a fiduciary capacity representing potentially diverse interests of Juan
and Piccola, he drew up papers to defeat Piccola‘s ownership for the benefit of Juan‘s daughter. He
could not have had Piccola‘s knowing consent which would have required a translator and likely
appointment of a guardian. Board adopted panel‘s finding of a violation of DR 5-105(B). While
purporting to act in a fiduciary capacity, he had Piccola sign an instrument giving away all interest
in her home, without her knowing consent to the transfer. Board adopted panel‘s findings of a
violation of DR 1-102(A)(4), 5-105(A) and 5-105(B). Supreme Court of Ohio so found these
violations. As to Count II, in preparing the quitclaim deed he was required to identity the grantee‘s tax
mailing address. He listed Elizabeth‘s address as the Rioses‘ residence, although she resided in Puerto
Rico and he recorded the deed on July 1, 2004. Panel and board did not find evidence of a violation of
DR 1-102(A)(4) and (5), nor did the Supreme Court of Ohio find these violations, despite relator‘s
objections. As to Count IV, in July 2008, Joann‘s daughter applied to become her grandmother‘s
guardian. Respondent still trying to accomplish what he thought were the Rioses‘ wishes, entered an
appearance in the guardianship case as an amicus curiae, asking the probate court to continue the hearing
that was to determine Piccola‘s competence. He advised the court he represented Juan, but did not tell
the court Juan was dead. The probate court denied the request and did not allow respondent to
participate further. Board adopted panel‘s findings of a violation of DR 7-102(A)(5). Supreme Court
of Ohio so found this violation. Mitigating factors include that respondent typically represents clients
of modest means for little or no fees as he did in the Rioses‘ case, has a 50 year career of representing
clients with integrity; has no prior disciplinary record, no dishonest or selfish motive, cooperated with
full and free disclosure and acknowledged wrongfulness. BCGD Proc.Reg. 10(B)(2)(a), (b), and (d).
Board adopted panel‘s recommendation of a six-month suspension stayed. The court noted that the
disciplinary process exists not to punish the offender, but to protect the public and to allow the court to
ascertain a lawyer‘s fitness to practice. The court noted that given his good faith in the case and history
of competent practice, the appropriate remedy here is to ensure he strictly observes ethical standards,
and that placing him on probation with a monitoring attorney will achieve these ends. The court