Butler Cty. Bar Assn. v. Green

Full title: BUTLER COUNTY BAR ASSOCIATION v. GREEN. OHIO STATE BAR ASSOCIATION v. GREEN

Court: Supreme Court of Ohio

Date published: Jul 21, 1982

1 Ohio St. 3d 48 (Ohio 1982)

438 N.E.2d 406

Opinion

Nos. 82-6 and 82-7

Decided July 21, 1982.

Attorneys at law — Misconduct — Indefinite suspension — Acts warranting.

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline.

D.D. No. 82-6.

This cause arises from a complaint filed with the Board of Commissioners on Grievances and Discipline, on August 7, 1979, by the relator, Butler County Bar Association, charging respondent, F. Harrison Green, with misconduct.

The complaint filed against respondent charged "[t]hat F. Harrison Green did willfully violate the Code of Professional Responsibility, Canon 1, DR 1-102(A)(4)(5)(6) and Canon 9, DR 9-102, by expending to himself the aggregate sum of $9,000.00 for attorney fees from a fiduciary account during the administration of the estate of Edward L. Epperson in the Probate Court of Butler County, Ohio, without authorization of the Probate Court or of the executrix of the estate, from on or about August 16, 1976, to June 7, 1977."

Respondent was duly served with a copy of the complaint. A hearing was held before a panel of the board of commissioners on June 25, 1981, in Hamilton, Ohio. Respondent was present and represented by counsel. At the request of respondent, the hearing was conducted as a private matter.

Following the hearing, the board found that on or about June 10, 1976, Helen M. Epperson contacted respondent and engaged him to act as her attorney for the purpose of assisting her in the administration of the estate of her late husband, Edward L. Epperson, Sr., and that at that time application was made for the appointment of Mrs. Epperson to act as executrix of her husband's last will and testament. These documents were evidently taken directly to the Probate Court of Butler County and an entry appointing Epperson as executrix was issued on June 10, 1976.

During the initial conference, Epperson advised respondent that there was a joint savings account at First National Bank of Middletown, Middletown, Ohio, with a balance of $15,457.98. These funds were transferred into an estate checking account for the purpose of paying the debts, fees and costs in the estate. A signature card for the account was obtained by Green and titled "Estate of Edward L. Epperson, Sr., Helen M. Epperson, Executrix." The card contained the signature of both Epperson and respondent. It was stated on the card that the bank was "* * * authorized to recognize any (1) of the signatures subscribed above in the payment of funds or the transactions of any business for this account.* * *"

The board found that the evidence indicated that on or about June 28, 1976, Epperson suggested a retainer fee in the amount of $1,000 be paid to Green, at which time a check in the amount of $1,000 was made payable to Green and signed by Epperson.

The records of the Probate Court indicate that subsequent to the June 10, 1976, filing of the initial probate forms, the only activity evidenced in the estate through September 14, 1978, was the transfer of the titles to three motor vehicles. During the same period of time, respondent withdrew from the estate checking account, under his own signature, the following eight checks:

Date of Check Amount of Check Purpose 8/13/76 $1,500.00 Fees 9/14/76 1,000.00 Attorney Fee 10/4/76 1,000.00 Fees 11/4/76 1,000.00 Estate Tax 11/12/76 1,000.00 Attorney Fee 12/7/76 500.00 Fees Expenses 12/27/76 2,000.00Advance Expenses 6/21/77 1,000.00Fees

Additionally, 24 other checks were drawn on the estate account, 18 of which were signed by Epperson (including the June 28, 1976, retainer fee check) and four of which were signed by respondent. One check was voided and one check was made payable to Helen M. Epperson and was unsigned; however, the latter check was cashed. These 24 checks were either made payable to Helen M. Epperson or used to pay the bills of the estate.

The board found that Epperson never had any notification or idea Green was drawing checks on the estate checking account payable to himself until the one day when Epperson was in Green's office and observed an envelope from the First National Bank of Middletown, which was addressed to "Edward L. Epperson, Sr., Estate, Helen M. Epperson, Executrix." At that time Epperson asked permission of Green's secretary to review the bank statements. It was only after review of the bank statements that Epperson became aware that only a little over $200 remained in the estate checking account.

According to the board, the evidence indicates Mrs. Epperson testified that respondent never stated his attorney fee would be $10,000. She did recall a discussion wherein respondent indicated to her that the fee would be five percent of the gross estate. She also recalled a subsequent discussion wherein respondent indicated that the fee would be four percent of the gross estate. Epperson's testimony concerning respondent's statements regarding attorney's fees was corroborated by her son and her accountant, both of whom were present when respondent made statements concerning the attorney fee to be charged in the estate.

The inventory indicated the gross estate was $156,436.72 and the Ohio Estate Tax Return indicated the gross estate was $126,528.55.

The board found that Mrs. Epperson's son, Edward L. Epperson, Jr., was in attendance at one of the conferences between Mrs. Epperson and respondent, in which respondent was alleged to have admitted he had used poor judgment in taking the money.

Out of the $10,000 in fees withdrawn by or for respondent, he did pay for a grave marker in the amount of either $1,575 or $1,590 and the Ohio Estate Tax in the amount of $1,937.81. On November 30, 1978, respondent wrote a check to Mrs. Epperson in the amount of $7,149.50 which represented a refund of all attorney's fees he charged the estate, together with interest thereon.

The board also found that respondent failed to comply with Rule XXVI of the Butler County Probate Court Rules of Practice. This rule requires written application to and permission of the court prior to payment of fiduciary fees from the estate. The Butler County Probate Court record indicated no such application was made to the court to pay attorney's fees until December 8, 1978.

The board concluded that "the evidence is sufficient to find F. Harrison Green guilty of violation of DR 1-102(A)(4)(5) and (6) of the Code of Professional Responsibility in that Green did engage in conduct involving dishonesty and deceit, which conduct was prejudicial to the administration of justice and adversely reflects on Green's fitness to practice law. In addition, Green is guilty of violation of DR 9-102(A)(2) in that F. Harrison Green withdrew funds which were not due for services rendered and did so without the knowledge, notification or consent of his client, Helen M. Epperson, the Fiduciary and Executrix of the estate of Edward L. Epperson, Sr."

The board recommended that respondent be indefinitely suspended from the practice of law in Ohio.

D.D. No. 82-7.

This cause arises from a complaint filed with the Board of Commissioners on Grievances and Discipline, on November 26, 1980, by the relator, Ohio State Bar Association, charging respondent, F. Harrison Green, with misconduct.

Count I of the complaint alleged that respondent violated DR 1-102(A)(3), (4) and (6), DR 9-102(A)(2) and DR 9-102(B)(4) of the Code of Professional Responsibility. Specifically, the complaint alleged that respondent was employed, on or about January 7, 1977, by Darcel Bolser of Fairfield, Ohio, to represent her in a divorce proceeding against her husband. At that time Bolser had in her possession a check in the amount of $7,500 payable to herself, a marital asset, which respondent suggested she deposit with him. She thereupon endorsed her name to the check and delivered it to respondent with the understanding and agreement that the funds would be held in trust by respondent and paid over to her as needed by her.

Respondent deposited the check on or about January 10, 1977, in his law firm business account at the First National Bank of Middletown. Thereafter, the complaint alleged, respondent paid to Bolser the sum of $2,000 on or about January 27, 1977; the sum of $1,000 on or about March 15, 1977; "but neglected, failed, and refused to pay over the balance of such funds to her until May 1, 1978 at which time Respondent paid to her the sum of $2690.12. Respondent retained the sum of $1809.00, without the consent of Darcel Bolser, and claimed such sum as fees and costs."

The complaint further alleged: "[d]uring the time Respondent had possession and control of the $7500.00 of Darcel Bolser, from January 10, 1977 until May 1, 1978, the balance in the bank account into which the funds were deposited fell below the amount due Darcel Bolser, and the account was in an overdraft status on twenty-three separate occasions. Respondent used those funds in the bank account to pay for office supplies, office rent, book bills, Respondent's personal loans, and other personal expenses of Respondent."

Count II of the complaint alleged that respondent violated DR 1-102(A)(4), (5) and (6), DR 6-101(A)(2) and (3), and DR 7-101(A)(2) and (3) of the Code of Professional Responsibility. Specifically, the count alleged that in December 1977, respondent represented Rocky L. Helton of College Corner, Ohio, on criminal charges filed by Helton's employer in the Mayor's Court of Harrison, Ohio. The case was eventually dismissed for want of prosecution.

Thereafter, Helton requested respondent to represent him and file a suit on his behalf against his former employer for malicious prosecution. A written contingent fee contract was signed by Helton on May 28, 1978, retaining and employing respondent. Helton paid to respondent the sum of $62.50 for filing fees for the commencement of the civil suit.

"Thereafter," the complaint further alleged, "Rocky Helton inquired of Respondent as to the status of the case. On at least two occasions, Respondent informed Rocky Helton that the suit had been filed. Those representations [by respondent] to Rocky Helton were false and known to be false when made; no suit on behalf of Rocky Helton was filed by Respondent at any time."

Respondent was duly served with a copy of the complaint. A hearing was held before a panel of the board of commissioners on June 25, 1981, in Hamilton, Ohio. Respondent was present and represented by counsel. At the request of respondent, the hearing was conducted as a private matter.

With regard to Count I, the board found that there was conflicting testimony as to whether the money was a loan to Green or whether it was deposited in trust for Bolser. Respondent testified that the $7,500 was a loan, resulting from a conversation between respondent and the father of Bolser, Ward Landis, Vice-President and Auditor of the Second National Bank of Hamilton, Hamilton, Ohio. The conversation, according to respondent, took place prior to Bolser's first appointment with respondent. The testimony of Landis was not offered to support or deny this statement.

Bolser testified that the money was deposited "in trust" for Darcel Bolser. Relator offered in evidence a receipt signed by respondent indicating the money was held "[i]n trust for Darcel Bolser."

The board found that on May 1, 1978, Bolser received a check from respondent in the amount of $2,690.12, together with an itemized statement of account in the amount of $1,809.88 showing total fees, costs and cash advanced by respondent for representation in the divorce case, post-divorce hearings and an additional civil case involving Bolser and Sears, Roebuck Co.

The board concluded that "* * * the evidence presented in Count I is sufficient to support a charge of misconduct * * * in that F. Harrison Green deposited monies of his client, Darcel Bolser, in a general office checking account and not an identifiable bank account, and used the funds of his client, Darcel Bolser, to meet general personal obligations and obligations of his law office." Respondent was found to have violated DR 9-102(A)(2), but noted that respondent "* * * did in fact render a complete and satisfactory accounting to his client, Darcel Bolser, and that the fees, costs and other payments made by Green were specifically itemized and not objected to by his client, Darcel Bolser."

With regard to Count II, the board concluded that respondent was not guilty of misconduct and that "* * * this matter sounded in one of malpractice on the part of F. Harrison Green."

The board recommended that respondent receive a public reprimand.

Mr. Thomas W. Baden and Mr. Stanley D. Rullman, for relator in D.D. No. 82-6.

Mr. John R. Welch, Mr. Albert L. Bell, Mr. Leonard A. Weakley and Mr. Charles E. Ide, Jr., for relator in D.D. No. 82-7.

Messrs. Rathman, Elliott, Boyd Valen and Mr. George H. Elliott, for respondent in D.D. Nos. 82-6 and 82-7.

Carl Morgenstern Co., L.P.A., Mr. Carl Morgenstern and Mr. Roger Gates, for respondent in D.D. No. 82-7.

Per Curiam.

DR 1-102 of the Code of Professional Responsibility provides, in part, as follows:

"(A) A lawyer shall not:

"* * *

"(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.

"(5) Engage in conduct that is prejudicial to the administration of justice.

"(6) Engage in any other conduct that adversely reflects on his fitness to practice law."

DR 9-102 provides, in part:

"All funds of clients paid to a lawyer or law firm, other than advances for costs and expenses, shall be deposited in one or more identifiable bank accounts maintained in the state in which the law office is situated and no funds belonging to the lawyer or law firm shall be deposited therein except as follows:

"* * *

"(2) Funds belonging in part to a client and in part presently or potentially to the lawyer or law firm must be deposited therein, but the portion belonging to the lawyer or law firm may be withdrawn when due unless the right of the lawyer or law firm to receive it is disputed by the client, in which event the disputed portion shall not be withdrawn until the dispute is finally resolved."

The record in D.D. No. 82-6 reveals that respondent did withdraw $9,000 from the estate checking account as fees without prior agreement with his client. Such conversion of a client's funds to the personal use of the attorney is in violation of DR 1-102(A)(4), (5) and (6) and DR 9-102(A)(2). Ohio State Bar Assn. v. Weaver (1975), 41 Ohio St.2d 97 [70 O.O.2d 175]; Akron Bar Assn. v. Hughes (1976), 46 Ohio St.2d 369 [75 O.O.2d 446]; Columbus Bar Assn. v. Amos (1980), 62 Ohio St.2d 256 [16 O.O.3d 287].

This court concurs with the findings and conclusions of the board in that respondent violated the foregoing Disciplinary Rules in D.D. No. 82-6.

Furthermore, after a careful examination and review of the entire record in D.D. No. 82-7, this court concurs with the finding of the board that respondent deposited funds of his client in a general office banking account and not in an identifiable bank account, and used those funds to meet general personal obligations and obligations of his law office. Accordingly, we find that respondent violated DR 9-102(A)(2) of the Code of Professional Responsibility. Toledo Bar Assn. v. Illman (1969), 18 Ohio St.2d 122 [47 O.O.2d 280]; Columbus Bar Assn. v. Tuttle (1975), 41 Ohio St.2d 183 [70 O.O.2d 341]; Ohio State Bar Assn. v. Willard (1977), 50 Ohio St.2d 3 [4 O.O.3d 34].

It is the judgment of this court that for the disciplinary violations in D.D. Nos. 82-6 and 82-7 respondent be suspended indefinitely from the practice of law in this state, and it is so ordered.

Judgment accordingly.

CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN, and KRUPANSKY, JJ., concur.