Summary
commingling of estate funds with personal bank account; dishonesty
Summary of this case from In re Application of CorriganOpinion
D.D. No. 87-1
Decided March 16, 1988.
Attorneys at law — Misconduct — Indefinite suspension — Commingling of funds — Engaging in dishonesty.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Bar.
On January 29, 1986, relator, Disciplinary Counsel, filed a complaint against respondent, Carole M. Bica, alleging two counts of misconduct. Respondent answered the complaint on February 24, 1986, admitting most of the complaint's factual allegations, as well as that she had violated DR 9-102(A) (commingling) and, therefore, DR 1-102(A)(1) (violating a Disciplinary Rule). She denied, however, having committed any of the other disciplinary infractions alleged.
A hearing was held before a panel of the Board of Commissioners on Grievances and Discipline of the Bar on June 30, 1986. The evidence presented concerned respondent's conduct during the course of two separate but related professional relationships. The first required respondent to probate the estate of Charles A. Franco; the other was a domestic relations matter wherein respondent attempted to collect a fee from Margaret A. Clark, the executor of the Franco estate.
Count I of the complaint alleged that, on or about July 3, 1984, respondent arranged for Charles Franco to execute his last will and testament, a document which she had prepared. The will named Margaret Clark, Franco's niece, as executor. Franco died four days after the will was executed. Respondent was thereafter called upon to probate the Franco estate, the value of which was less than $10,000. While in the process of doing so, respondent purportedly filed documents in the Columbiana County Probate Court to which she had signed, without authority, Clark's name.
Count I also charged respondent with negotiating checks which had been forwarded to her by the executor. More specifically, the complaint alleged that either respondent or Jerry Bica (her brother and secretary) had endorsed Clark's name on the checks in question without permission. Respondent was also accused of having deposited those checks into her personal account.
According to Count I, respondent had also prepared a purchase agreement for the sale of real property in which the Franco estate had an interest. Clark's name appears as a signator on the agreement and was purportedly witnessed by respondent and Jerry Bica. Clark, however, testified that she neither signed the agreement nor had knowledge of its terms.
Finally, Count I alleged that respondent received a bank check in the executor's name for the proceeds from the sale of the real property and that the check was endorsed by someone other than Clark. It was further alleged that the check was not deposited in a trust account.
In addition to charging violations of DR 1-102(A)(1) and 9-102(A), relator charged that respondent's actions with respect to the Franco estate constituted violations of DR 1-102(A)(4) (engaging in dishonesty, fraud, deceit, or misrepresentation) and DR 7-102(A)(5) (knowingly making a false statement of law or fact).
Count II of the complaint specified that respondent had employed a collection agency in order to secure payment of a $100 fee for counseling Clark over the telephone in connection with marital problems while respondent was handling the Franco estate. At the hearing, Clark denied ever requesting or receiving such services. Moreover, Clark testified that she learned of these charges for the first time when the collection agency contacted her. As a result, relator maintained that respondent had violated DR 1-102(A)(4), 2-106(A) (charging an illegal fee), and 7-101(A)(3) (causing prejudice or damage to one's client).
On the day prior to the hearing, respondent completed an affidavit in which she admitted the charges made in Count I of the complaint. The affidavit also revealed that respondent had misrepresented her involvement in and knowledge of the forging of Clark's name on the various instruments heretofore described while testifying at a hearing before the Columbiana County Probate Court. At the panel hearing, respondent acknowledged and even expanded upon the admissions contained in the affidavit. She continued to assert, however, that she had counseled Clark for marital difficulties and that she had not violated the Disciplinary Rules enumerated in Count II of the complaint.
In light of the foregoing, the board found that respondent had violated DR 1-102(A)(4), 2-106(A), 7-102(A)(5), and 9-102(A). Before making its recommendation, the board considered the facts that respondent had experienced degrees of prescription drug dependency during the period in which these violations occurred and that the Franco estate had not suffered financial loss due to respondent's conduct. It unanimously recommended, however, that respondent be indefinitely suspended from the practice of law.
J. Warren Bettis, disciplinary counsel, and Charles T. Brown, for relator.
Charles W. Kettlewell, for respondent.
This court finds that respondent violated the aforementioned Disciplinary Rules. Accordingly, we adopt both the board's findings and its recommendation. Respondent is hereby ordered indefinitely suspended from the practice of law in Ohio. Costs taxed to respondent.
Judgment accordingly.
MOYER, C.J., SWEENEY, LOCHER, HOLMES and WRIGHT, JJ., concur.
DOUGLAS and H. BROWN, JJ., dissent.
Taking into account the disciplinary violations in this case, I would suspend the respondent from the practice of law for a period of one year.
DOUGLAS, J., concurs in the foregoing dissenting opinion.