Opinion
No. 86-9
Decided August 13, 1986.
Attorneys at law — Misconduct — One-year suspension — Conduct involving moral turpitude and misrepresentation — Excessive fee.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Bar.
Respondent, Mark A. Whitaker, was admitted to the practice of law in the state of Ohio in 1979. Relator, the Stark County Bar Association, filed a complaint with the Board of Commissioners on Grievances and Discipline of the Bar ("board"), alleging several incidents of misconduct on the part of respondent. The essential facts of this case are not in dispute.
Respondent was retained by Dennis F. Twaddle to represent him as executor in the settlement of the estate of his mother, Kathryn Twaddle. There were four heirs to the estate, all of whom were children of the deceased. The estate was administered in the Probate Court of Stark County, Ohio.
Pursuant to the amended inventory filed in the probate court, the estate consisted of real estate valued at $20,000, United States bonds totalling $3,505.82, $22,781.76 in life insurance, and $2,293.16 in a checking account. Further, $70,947.29 was in separate, joint and survivorship accounts in the names of the decedent and each of her children.
Relator alleges that respondent failed to advise the surviving joint tenants of the joint and survivorship accounts that the assets within those accounts could be transferred to the surviving joint tenants. Although respondent denies that he failed to advise the surviving joint tenants as to their rights in that regard, respondent admits that he placed the proceeds of those accounts into his own trust account. That account was identified by respondent's own social security number, and bore no indication that the proceeds therein were in fact proceeds from the Twaddle estate.
Among other admissions, respondent admits having issued his personal check in the amount of $1,557.49 to the executor, accompanied by a letter in which respondent intentionally misled the executor to believe that the check represented a refund from Anchor Nacional Financial Services, Inc., when it was not.
Respondent also admitted having prepared inaccurate and incorrect accounts and estate tax returns, having failed to properly account for money earned and lost on two accounts at Anchor National, having intentionally misled the executor into believing that an investment made with Washington Mutual Investment Fund was contrary to respondent's instructions to Fletcher Associates, and having charged a fee of $3,895.96 to administer the estate, an amount which was more than fifty percent higher than indicated by local court rule to be a reasonable fee for an estate of this size.
Relator recommended that respondent be permanently disbarred from the practice of law. After considering the matter, the board found that respondent had violated the following Disciplinary Rules: DR 1-102(A)(1); 1-102(A)(3); 1-102(A)(4); 1-102(A)(5); 1-102(A)(6); 2-106(A); 6-101(A)(2); 6-102(A); 9-102(A); and 9-102(B). However, the board also found that respondent had repaid all money due to the interested parties, that he had not converted the money to his own use, and that the heirs had sustained no loss. Respondent's admissions were made on the night prior to the scheduled hearing. Accordingly, the board recommended that respondent be suspended from the practice of law for one year.
Leander P. Zwick, Michael S. Russell and John N. Mackey, for relator.
Lawrence S. Turner, Joyce A. May and Charles W. Kettlewell, for respondent.
After a thorough examination of the record in this case, we concur with the findings and recommendations of the board. Although respondent's wrongdoing was egregious, his admissions of wrongdoing, made prior to trial, weigh in his favor. Particularly important to our decision are the board's findings that respondent had, prior to trial, repaid all monies due, and that he had not converted the money to his own use.
It is, therefore, the judgment of this court that respondent be suspended from the practice of law in the state of Ohio for a period of one year.
Judgment accordingly.
CELEBREZZE, C.J., SWEENEY, LOCHER, C. BROWN and DOUGLAS, JJ., concur.
HOLMES and WRIGHT, JJ., dissent.
For the egregious wrongful acts of the respondent here, nothing less than an indefinite suspension would be warranted. Therefore, I dissent.
WRIGHT, J., concurs in the foregoing dissenting opinion.