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

Shaw, Disciplinary Counsel v.126 Ohio St.3d 494, 2010-Ohio-4412. Decided 9/23/2010.Case Summaries- 303Respondent named his children as beneficiaries to a client‘s trust, borrowed money from the same clientwithout advising her of the conflict of interest and failed to repay the loan, and accepted attorney‘s fees ina guardianship matter involving an elderly woman without the appropriate court approval. In Count I,respondent‘s elderly client asked him to draft a power of attorney and revocable trust which he preparednaming himself as attorney-in-fact, co-trustee, and first successor trustee to the trust. Purportedly at theclient‘s behest, respondent named his five children as beneficiaries of the trust, each to receive $5,000.He admitted he did not inform the client of the inherent conflict of interest and never suggested she getadvice from a disinterested person or have another attorney prepare the documents. The board adoptedthe panel‘s findings of violations of DR 1-102(A)(5), 1-102(A)(6), 5-101(A)(1), and 5-101(A)(2). InCount II, respondent in 2000 borrowed $13,000 from the same client in Count I; he was to repay theloan in six months at 6% interest. Respondent failed to pay the loan as agreed; he later agreed to repaythe loan in $250 monthly installments, for which he made only three payments. In 2002, the client suedrespondent and got a default judgment for $13,000 plus interest. Respondent admitted to not advising theclient to get outside counsel, not explaining to her the risks of making an unsecured loan, and notdiscussing the inherent conflict of interest. The board adopted the panel‘s findings of violations of DR1-102(A)(5), 1-102(A)(6), 5-101(A)(1), and 5-104(A). The court agreed with these violations. But, thecourt noted that there was no evidence in the record to support the board‘s finding that the debt wasdischarged in a bankruptcy proceeding. The court rejected the finding that the debt was discharged inbankruptcy. The court noted the probate court concluded that pursuant to Section 523(a)(4), Title 11,U.S.Code, the debt was nondischargeable because ―it arose from the debtor‘s defalcation while acting in afiduciary capacity.‖ The probate court ordered respondent to pay $12,240 to the trust. Miller v Lagos(Feb. 8, 2008), Trumbull C.P. No. 2007 CVA 0045. The court of appeals affirmed the probate court‘sjudgment against respondent. Miller v. Lagos, Trumbull App. No. 2008-T-0014, 2008-Ohio-5863. InCount III, respondent failed to respond to two letters of inquiry, but later responded to relator, appearedfor deposition, and fully cooperated. The panel recommended dismissal of Count III which chargedviolations of Prof.Cond.R. 8.4(h) and Gov.Bar R. V(4)(G). The board did not expressly dismiss CountIII, but did adopt the panel‘s findings of fact and conclusions. Because the Court also adopted thefindings of fact it dismissed Count III. In Count IV, two clients sought guardianship of their grandmotherin January 2007. She died in May 2007, just days after the guardianship was obtained. In May 2007,respondent accepted $800 for ―attorney fees‖ and another $1,200 for ―legal fees: expenses‖ without priorprobate court approval. In October 2007, respondent filed an application for attorney‘s fees in probatecourt, seeking $4,668, in addition to the $2,000 the clients had already paid. The court foundrespondent ―guilty of concealment of assets‖ for receiving the $800 and $1,200. The court approved only$800 of the attorney-fee request and ordered respond to reimburse $1,200 to the ward‘s estate. Smith v.Thornton (Dec. 8, 2008), Trumbull P.C. No. 2008-CVA-38, at 2. Respondent admitted at thedisciplinary hearing that he had not complied with the court‘s order. The board adopted the panel‘sfindings of violations of Prof.Cond.R. 3.4(c), 8.4(d), and 8.4(h). The court agreed. In mitigation,respondent had no prior discipline in 30 years. BCGD Proc.Reg. 10(B)(2)(a). In aggravation,respondent: engaged in multiple offenses and a pattern of misconduct, harmed a vulnerable client, andfailed to make restitution. BCGD Proc.Reg. 10(B)(1)(c), (d), (h), and (i). He attempted to minimize themisconduct by claiming to have a ―close personal relationship.‖ He claimed the client was ―very sharpmentally‖ and he was not trying to take advantage of her, but he also acknowledged the client wasvulnerable and that he was trying to protect her from others who were trying to take advantage of her.The panel recommended a two-year suspension with one year stayed on condition of restitution to theclient in Count IV, but expressly refused to recommend restitution to the first client because of thebankruptcy discharge and refused to recommend he complete his OLAP contract because it was unclearwhich issues that contract was intended to address. The board recommended a two-year suspension withno stay and reinstatement conditioned on restitution to the client in Count IV. Respondent, who now hasobtained counsel, requested a remand to present evidence of character and reputation, community