Summary
In Bar Assn. of Greater Cleveland v. Nesbitt, supra, 69 Ohio St.2d 108, 23 O.O.3d 157, 431 N.E.2d 323, the attorney received a one-year suspension for failing to disclose a finder's fee he received when he arranged for his client to lend money to a third party.
Summary of this case from Stark Cty. Bar Assn. v. ButtacavoliOpinion
D.D. No. 81-10
Decided February 3, 1982.
Attorneys at law — Misconduct — One-year suspension — Acts warranting.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline.
The Bar Association of Greater Cleveland, relator herein, filed a complaint with the Board of Commissioners on Grievances (hereinafter "board"), pursuant to Gov. R. V, charging Timothy L. Nesbitt, respondent herein, with violations of the following Disciplinary Rules: DR 3-101(A); DR 7-101; DR 7-101(A)(2), (3) and (5); DR 5-103(A); DR 5-104(A); and DR 9-102(A), (B)(1) and (B)(4).
Most of the allegations contained in relator's complaint arose from a complicated 1974 transaction arranged by respondent for a client, whereby the client, through the respondent, loaned $21,000 at 12 percent interest per annum to a third party. The client was not aware when he entered into the loan agreement that respondent, along with two others, split a $4,000 finders fee paid by the third-party borrower. The client eventually filed a complaint with relator when payments due him under the loan agreement were not forthcoming and his attempts to reach respondent were, for the most part, unavailing. Respondent promised on several occasions to rectify the situation after the payments stopped in 1976 but he failed to make good on his promises. Finally, in 1977, the client hired another attorney and a settlement was reached with respondent.
For example, the board found that during this period respondent "issued a check to * * * [the client] for $7,000 drawn on the Cleveland Trust Company which was returned * * * by the bank with a notation that it was not payable because the account was closed. The respondent also issued to * * * [the client] several other checks which were returned for insufficient funds."
Multiple hearings were held in this cause. The first hearing took place in Cleveland in January 1979, and later hearings were held in Columbus in October 1980, and March 1981. Personal service could not be obtained on respondent because he was out of the country, having taken a job in Saudi Arabia. Respondent was, however, represented by counsel.
The board concluded after its hearings that respondent had not violated DR 3-101(A); DR 7-101(A)(2), (3) and (5); and DR 9-102(A), (B)(1) and (B)(4) for the following reasons: (1) "in the initial [attorney-client] relationship * * * respondent did properly conclude his legal duties"; (2) "his arrangement with * * * [two others] was a business relationship and, therefore, he did not improperly share fees"; and (3) "when respondent entered into his loan agreement with * * * [the client] he entered into a business relationship and, therefore, did not improperly withhold funds from his client."
The board did, however, find "that respondent did violate DR 5-104(A) and DR 5-103(A) when he slipped from his attorney-client relationship with * * * [the client] into what was an apparent business relationship without proper separation of the two. Respondent went from a lawyer-client relationship to a proprietary relationship while doing this, and, therefore, did improperly acquire proprietary interest in the subject matter he was conducting for his client." Based on these findings, the board recommended that respondent receive a one-year suspension from the practice of law.
Mr. William J. Coyne, Mr. A. Richard Valore and Mr. Seymour R. Brown, for relator.
Mr. Milt Schulman, for respondent.
After a careful examination and review of the record in this cause, this court concurs with the findings and conclusion of the board that respondent violated DR 5-103(A) and DR 5-104(A).
It is the judgment of this court that respondent be suspended from the practice of law for a period of one year.
Judgment accordingly.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and KRUPANSKY JJ., concur.