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

Dettinger, Disciplinary Counsel v.
121 Ohio St.3d 400, 2009-Ohio-1429. Decided 4/2/2009.
Case Summaries- 64
Respondent, a transactional attorney with many years in practice, accepted a loan from a client without
disclosing the risks of their conflicting interests. Board adopted the panel‘s findings and
recommendation. In 2002, respondent borrowed $25,000 from a long-time client and personal friend
(Zander) without advising the client to consult independent counsel and without fully disclosing
respondent‘s financial distress. Respondent gave Zander a promissory note for the full amount with
interest at the rate of 5% per annum and payment before July 22, 2004 in lump sum. Zander died
approximately one year before the note came due. Respondent represented Zander‘s son as executor of
the estate and included the promissory note in the schedule of assets as a receivable, but did not
advise the executor of any potential conflict of interest when he opened the estate. Respondent eventually
advised the executor to consult independent counsel. Respondent paid the $25,000 loan principal to the
executor in early September 2008, more than four years after it was due. The executor waived interest
and accepted the principal as payment in full. Board found violations of DR 5-101(A)(1) and 5-104(A)
for continuing to represent and Zander and his estate without first obtaining the clients‘ and the executor‘s
consent after explaining the attendant risks of their conflicting interests. In aggravation, he committed
more than one offense. BCGD Proc.Reg. 10(B)(1)(d). In mitigation, he had no prior discipline and
displayed a cooperative attitude throughout the proceedings. BCGD Proc.Reg. 10(B)(2)(a) and (d). He
established his excellent character and reputation apart from the underlying misconduct with the
testimony of two attorneys and the probate judge, who testified pursuant to subpoena. Board
recommended a six-month suspension, all stayed. The Supreme Court of Ohio agreed with the
Board‘s findings and recommendation and so ordered a six-month suspension, all stayed.
Rules Violated: DR 5-101(A)(1), 5-104(A)
Aggravation: (d)
Mitigation: (a), (d)
Prior Discipline: NO Procedure/ Process Issues: NO Criminal Conduct: NO
Public Official: NO Sanction: Six-month suspension, stayed