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

Tomlan, Disciplinary Counsel v.,
118 Ohio St.3d 1, 2008-Ohio-1471. Decided 4/3/2008.
Case Summaries- 332
Respondent transferred an elderly client‘s assets to joint and survivorship accounts without informed
consent. He befriended a 90-year old wealthy, unmarried and childless woman (Rice) shortly after her
admission to a nursing home in 1993. She suffered from Parkinson‘s disease and, as early as July
1997, had signs of dementia or organic brain syndrome. He began doing some legal work for her in
1997. He then started helping her pay her bills. He prepared a will for her in May 1998, naming
himself as executor and his wife the alternate executor. She made bequests to a nephew, a niece, two
acquaintances, three churches, two fraternal organizations, perpetual care of her cemetery plot, alumni
association, and specified hospitals and philanthropic organizations. In Spring 1999, Rice told
respondent she wanted to revise the will to leave him money, but he told her she would have to hire
another attorney. She did not want another attorney and did not revise her will. Purportedly at her
direction, he began transferring her assets into joint and survivorship accounts that they shared. The first
transfer was in June 1999 when he arranged for her to endorse four $100,000 checks with which he
obtained four certificates of deposit in both of their names. In July 1999, Rice signed a healthcare power
of attorney and a durable power of attorney. The healthcare power of attorney named Rice‘s nephew as
attorney-in-fact for heath care decisions and respondent as first alternate attorney- in-fact. The durable
power of attorney designated respondent as attorney-in-fact giving him broad authority which he used
during Rice‘s lifetime to correspond with banks, creditors, and other entities about her legal affairs,
and to open bank accounts, mange funds, and create and renew numerous certificates of deposit. The
second conveyance of Rice‘s assets occurred in June 2000 when he arrange for her to sign papers
transferring 28,800 shares of stock valued at approximately $1,000,000 to himself and herself jointly. In
January 2002, her treating physician recommended she enter hospice care. Her impaired decision-making
ability prompted hospice staff to consult her healthcare fiduciary about her admission. Respondent
consented to her admission. Her doctor prescribed among other medication, drugs for Parkinson‘s
disease, dementia, and depression. The third conveyance of her property occurred a month after her
admission to hospice, when respondent obtained a fifth certificate of deposit for $250,000 with the
proceeds from two of the previous certificates of deposit. Panel and board found a violation of DR 1-
102(A)(6) and 5-101(A)(1). After Rice died in 2002, respondent notified her niece and arranged for the
funeral. Although he had been appointed executor of her estate and controlled all of her primary assets by
operation of the joint survivorship accounts, he took no action on behalf of the estate for over 16
months. In December 2003, the nursing home hired attorney Semple to collect an outstanding bill of
$11,5000. Semple applied to the probate court for authority to administer the estate. In February 2004,
Semple talked to respondent about the pending administration application and respondent told him he had
the will and untruthfully said there were no living relatives. Semple was appointed administrator of the
estate. Respondent did not reply to his requests for a list of assets, her will, and keys to the house.
Respondent used $112,154.86 in proceeds from a certificate of deposit to obtain a new certificate of
deposit in his name and his wife‘s name. Semple moved the probate court for an order requiring
respondent to produce the will and also filed a concealment action. Respondent moved the court to
appoint him as executor and discharge Semple. In respondent‘s application, he listed the assets at
$190,000. The court denied respondent‘s application, finding him not suitable because of his delay in
administrating the estate and the resulting detriment to beneficiaries. On appeal, the order denying
Semple‘s discharge and respondent‘s appointment was affirmed. Respondent continued to refuse to give
Semple information. In August 2004, respondent‘s wife applied for authority to administer the estate and
estimated the estate‘s value at $1,000,000. In November 2004, responding to interrogatories asking him
to identify all assets he had acquired from Rice, he identified three of the four nonprobate assets that he
held with Rice at her death. He did not identify a $100,000 check made payable to Rice and him which
he received from cashing in a joint certificate of deposit he had obtained in June 1999 and which he used
in March 2004 to obtain a new certificate of deposit. In December 2004, Semple moved the court again
to enjoin respondent from accessing the nonprobate assets. At a hearing on the motion in January 2005,
respondent while testifying under oath again disclosed just the three nonprobate assets. The probate