Opinion
D.D. No. 79-7
Decided December 26, 1979.
Attorneys at law — Misconduct — Permanent disbarment — Acts warranting.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline.
A hearing in this matter was conducted on February 8, 1978, in Cleveland, before the panel of the Board of Commissioners on Grievances and Discipline concerning a complaint filed against Thomas M. McGarry. The complaint originally contained four specifications. Only one of these specifications was pursued at the hearing, to wit, that McGarry, while acting in a fiduciary capacity as the executor of the estate of Viola M. Hanlon, converted and appropriated for his own personal use $12,245 of the funds of that estate.
McGarry answered the complaint stating that he "denie[d] the misconduct alleged in the complaint" and that "his condition is such as defined in R.C. 5122.01." No further answer or memorandum was filed by or on behalf of McGarry.
The hearing before the panel was originally scheduled for December 21, 1977. On December 19, however, McGarry telephoned the chairman of the hearing panel. McGarry stated that he could not proceed on the 21st since he had been unable to obtain counsel and further because he was not well. Specifically, the counsel whom McGarry wished to retain was not in Cleveland and could not be reached; McGarry had not attempted to retain any other counsel. The chairman expressed concern at the lateness of this communication and told McGarry to forward an affidavit confirming the representations as to his illness from a treating physician. No affidavit was received.
By a notice issued January 4th, McGarry was advised of a rescheduled hearing in his case for the 24th and 25th of January, 1978, but efforts to serve him personally with this notice of the hearing were unsuccessful. The panel then decided to set a final hearing date and make a last effort to serve McGarry. The Cleveland Sheriff's Office was unable to serve McGarry with notice of the rescheduled hearing set for February 8, 1978. Service on respondent had then been effected in accordance with Gov. R. V(30), the entry directing such service having been filed on January 24, 1978. The hearing proceeded as scheduled. McGarry made no appearance at the hearing, nor was he represented by counsel. Inasmuch as he did not appear in his defense, the board was unable to determine what section of R.C. 5122.01 McGarry was relying upon for his defense.
The panel heard evidence from only one witness, Michael L. Gordon, an attorney practicing in Cleveland. Gordon was appointed as the successor administrator of the estate of Viola M. Hanlon, from which estate McGarry had allegedly misappropriated funds. Upon his appointment as successor administrator, Gordon reviewed the assets reported on the estate inventory, consulted with the heirs of Mrs. Hanlon and communicated with McGarry, requesting that the assets be turned over to him.
McGarry, on several occasions, promised to mail a check to Gordon for the assets of the estate. No check was forthcoming, and Gordon was ultimately compelled to file a complaint in the Probate Court against McGarry for concealment of assets.
At a hearing before Henry J. Medved, referee, in Probate Court concerning the matter, on March 25, 1977, McGarry appeared and delivered a check to Gordon for $34,000 written upon the estate account. This check was not honored by the bank upon which it was drawn, the Cleveland Trust Company.
Thereafter, on April 12, 1977, the referee found that McGarry had in fact "embezzled or conveyed away" certain assets of the estate totaling $42,820.18 for which amount the successor administrator was entitled to judgment. McGarry's deposition was taken after the date of the April 12th judgment of the referee, and at that time McGarry informed Gordon he had very large debts and essentially no assets to extinguish those debts. At the time that the $34,000 check was written by McGarry on the estate account, there was approximately $185 in the account.
On May 19, 1977, McGarry was indicted for grand theft and passing a bad check. He pleaded not guilty. Counsel representing relator, Brano Urbancic, advised the panel that no trial had been held because McGarry had failed to appear at his trial set for July 1, 1977. A certified copy of the criminal docket of Case No. 32428, State of Ohio v. Thomas M. McGarry was introduced at the hearing. Also, a judgment entry by the Probate Court of Cuyahoga County, Case No. 846254, dated April 29, 1977, finding McGarry guilty of having embezzled and/or conveyed away estate assets in the sum of $42,820.18 was also introduced. A capias had been outstanding for McGarry since September 15, 1977.
As a result of his investigation of McGarry's activities, the successor trustee, Gordon, determined that the total amount of estate funds which could not be accounted for were $12,245.40. He derived this figure by reviewing the financial records of the Cleveland Trust Company, and the photostatic copies of 21 checks written by McGarry on the estate account made out to himself, signed by him and endorsed by him. Copies of these checks were introduced in this proceeding.
Gordon was unable to state where McGarry was living at the time of the hearing and had no information as to his whereabouts, nor did Urbancic. All notices had been sent to 11705 Detroit Avenue in Lakewood. Urbancic represented to the panel that McGarry had practiced in the Cleveland area for a number of years, had the reputation of being a competent and able attorney, but that during the past few years had a severe problem with alcohol. At no time did McGarry state to Gordon that he was suffering from any illness. It should be noted that no defense was offered by McGarry with respect to the charge of embezzlement at the hearing before the probate referee.
On September 29, 1978, a letter was received by the board from respondent in which he stated that "an order" filed May 17, 1978, had not been received by him until the middle of September and that this was his "first notice of any action taken by the Board." He further stated that he had been under treatment for "alcohol addiction" in a Veterans Administration Hospital in Brecksville, Ohio, from June 20, 1978, and that he was still an outpatient at the hospital and was receiving therapy at an institution in Cleveland.
It was the opinion of the board that "the [r]espondent could have and should have taken steps to advise the Board and/or the chairman of the Panel of his situation long before this date and specifically in the period on and after December 19, 1977, when he knew from conversation with the chairman that a hearing date was imminent."
The board recommended that Thomas M. McGarry be permanently disbarred pursuant to Gov. R.V. Upon filing of the board's action, a show cause order was issued to McGarry who was at that time incarcerated at the Chillicothe Correctional Institute. McGarry filed a response requesting this court consider his diminished capacity due to alcohol addiction as mitigation regarding any disciplinary action taken. Two medical reports indicating McGarry's alcohol addiction were attached to the response. McGarry also requested additional time to file objections.
An extension was granted to May 11, 1979. On May 22, 1979, McGarry requested a further extension, stating that he had been granted shock parole and would be released on June 15, 1979. A further extension was granted to respondent to July 9, 1979, for filing objections. Nothing further has been filed by respondent.
A certified letter, dated September 12, 1979, return receipt requested, was sent to respondent at the address to which he had been paroled. The letter advised respondent that if he intended to file objections to the board's recommendation he should do so on or before September 21, 1979. This letter was signed for by a Jean McGarry. No further response has been made by respondent.
Mr. Brano Urbancic, Mr. L. Edward York and Mr. Joseph G. Schneider, for relator. Mr. Thomas M. McGarry, pro se.
The facts herein leave no doubt that respondent flagrantly violated his oath of office and specifically DR 1-102 and 9-102 of the Code of Professional Responsibility. The criminal and probate proceedings referenced herein establish the element of moral turpitude which can not be condoned within the legal profession.
Having reviewed the testimony taken before the board, as well as all the submitted letters and documents, and after thorough consideration of respondent's alleged defense of alcohol addiction, this court must concur with the findings of fact and recommendation of the board.
Therefore, it is the judgment of this court that the respondent, Thomas M. McGarry, be permanently disbarred from the practice of law pursuant to Gov. R.V.
Judgment accordingly.
HERBERT, W. BROWN, P. BROWN, SWEENEY, LOCHER and HOLMES, JJ., concur.
CELEBREZZE, C.J., not participating.