Opinion
No. 89-720
Submitted July 11, 1989 —
Decided September 13, 1989.
Attorneys at law — Misconduct — Public reprimand — Accepting or continuing employment when the interest of another client impairs the lawyer's independent professional judgment.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Supreme Court, No. 88-24.
On June 22, 1988, relator, Stark County Bar Association, filed a complaint against respondent, John E. Phillips, with the Board of Commissioners on Grievances and Discipline of the Supreme Court of Ohio ("board"). In the complaint, relator alleged that respondent violated DR 5-105(B) (accepting or continuing employment if the interest of another client may impair the lawyer's independent professional judgment). A panel of the board conducted a hearing on the complaint on March 31, 1989 at which it received a comprehensive stipulation.
Respondent has been licensed to practice law in Ohio since 1950 and has a private practice in Canton, Ohio.
Respondent became associated with the House of Loreto ("Loreto"), a nursing home, in 1982 or 1983. He began service on Loreto's advisory board of trustees in 1983 or 1984. In 1985 he began providing legal representation to Loreto, mostly on a pro bono basis. An attorney-client relationship existed between respondent and Loreto.
In August 1985, Loreto's administrator referred William F. Dugan, Jr., a son of a resident, William F. Dugan, Sr., to respondent because Dugan, Jr.'s father required someone to attend to his affairs. Respondent prepared a power of attorney for the son so that he could manage his father's affairs, received and inventoried the father's personal documents, received and forwarded correspondence to the son regarding the father's debts, and prepared the father's 1986 income tax return. Respondent was compensated for these services from the father's funds. An attorney-client relationship existed between respondent and Dugan, Sr.
Soon after Dugan, Sr. died on April 28, 1987, Loreto's administrator submitted a statement to the son for his father's previous stay at Loreto. This indebtedness arose because the father misrepresented his assets when he and his wife were first admitted to Loreto in 1967, and Loreto consequently charged the couple a reduced rate. The bill amounted to $38,775. The bill was filed as a claim against Dugan, Sr.'s estate, which was represented by another attorney. At Loreto's request, respondent computed interest on this indebtedness for inclusion with the claim.
Thereafter, respondent, on Loreto's behalf, and the estate's attorney discussed the claim, but the claim was ultimately rejected. Respondent, representing Loreto, rejected a final settlement offer of $7,500 and, with his law partner, prepared and filed a complaint to recover the claim. Respondent did not use any information from Dugan, Sr.'s personal documents, which were then in the possession of the estate's executor and his attorney. Respondent only used information related to him by Loreto's administrator.
On motion by the executor, the trial court disqualified respondent and his partner from representing Loreto, because they represented an interest adverse to Dugan, Sr., their former client, and could have obtained financial and other information concerning Dugan, Sr. to his estate's detriment while representing Loreto. Loreto then dismissed its complaint.
Respondent has cooperated with relator throughout the disciplinary proceedings, has no prior disciplinary record, is active in his community, and has a good reputation in the legal community. Respondent admitted violating DR 5-105(B). The parties agreed that a public reprimand was an appropriate sanction.
The panel found that respondent had violated DR 5-105(B) and recommended that he be publicly reprimanded. The board adopted this finding and recommendation.
Erroneously denoted DR 5-101(B) in the panel's and board's reports.
Day, Ketterer, Raley, Wright Rybolt, Alicia M. Wyler, Coury, Burns, Demchak, Slagle Lacki, Thomas A. Burns and D. Stephen Stone, Jr., for relator.
Charles W. Kettlewell, for respondent.
We agree with the board's finding and recommendation and publicly reprimand respondent.
Costs taxed to respondent.
Judgment accordingly.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.