582 N.E.2d 970
No. 91-1772Supreme Court of Ohio.Submitted November 12, 1991 —
Decided January 8, 1992.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Supreme Court, No. 90-57.
This is a disciplinary case brought by relator, Cincinnati Bar Association, against respondent, Jules K. Friedman. The matter proceeded to hearing on February 25, 1991 before a panel of the Board of Commissioners on Grievances and Discipline of the Supreme Court (“the board”).
The original complaint contained six counts. Count I was dismissed at the hearing because that count duplicated the allegations contained in Counts II and III. All counts are based on events which occurred during the representation of several clients in bankruptcy court by respondent.
Counts II and III of the complaint both involve respondent’s handling of the bankruptcy case of Donald Woods. Woods, who was engaged in the screen printing business in Cincinnati, requested in June 1989 that respondent file a bankruptcy proceeding for him. Woods, a longtime acquaintance of respondent, had recently been divorced and was preparing to leave for Tennessee. Woods literally handed respondent the keys to the business, told respondent to “take over,” and left the city. Respondent signed the bankruptcy petition for Woods but was subsequently unable to produce a power of attorney, even though he believed that he and Woods had prepared one. Respondent sold all of Woods’ assets and deposited the proceeds, $5,100, into his own regular business account. Respondent also collected $1,130 in accounts receivable and deposited that amount into his business account. The business assets, proceeds of the sale, and receipts from the accounts receivable were not listed on the bankruptcy schedules respondent prepared for Woods. In addition, respondent used those proceeds to pay one of Woods’ creditors the sum of $1,187.07, and took a portion of the remainder as his fee. None of these transactions was disclosed until respondent’s deposition was taken by the trustee in the bankruptcy proceedings. Respondent subsequently made restitution of the entire amount to the bankruptcy trustee.
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As to these counts of the complaint, the panel accepted respondent’s stipulations to violations of the Code of Professional Responsibility, specifically DR 1-102(A)(4) (dishonesty, fraud, or misrepresentation), 1-102(A)(5) (conduct prejudicial to the administration of justice), 1-102(A)(6) (conduct adversely reflecting on fitness to practice), 7-102(A)(3) (concealment), 7-102(A)(5) (false statements), 9-102(A) (commingling of funds) and 9-102(B) (failure to identify or keep records of funds).
Count IV involves the bankruptcy proceedings of Gary and Clarissa Teeters. Respondent filed a bankruptcy petition for Mr. and Mrs. Teeters in October 1989. After the filing of the petition Gary Teeters received one-fifth of $125,000, as insurance proceeds, following his mother’s death. Respondent failed to file an amended petition, and never reported this asset to the bankruptcy trustee. Respondent alleged that he had not encountered this situation before and was unaware of how to proceed. He testified that he did not know that life insurance proceeds received after the bankruptcy hearing are an asset of the bankruptcy estate. Respondent received no benefit from his mistake, and the error was corrected in the bankruptcy proceedings.
The panel found violations of DR 6-101(A)(1) (handling a legal matter for which he is not competent), 1-102(A)(5) (conduct prejudicial to the administration of justice), and 1-102(A)(6) (conduct adversely reflecting on his fitness to practice law).
Count V of the complaint involves the bankruptcy case of Jerry Moomaw, undertaken by respondent in 1988. The schedule of assets filed by respondent in the bankruptcy court did not include Moomaw’s interest in a parcel of land. Respondent did not amend the petition after he learned of the interest, but instead told Moomaw to advise the bankruptcy trustee of the asset at the first meeting of creditors. Moomaw failed to do this and the trustee did not learn of the existence of this asset until it was revealed in a subsequent debtor examination. The property interest was ultimately brought into the bankruptcy estate. Respondent, who was never in a position to benefit from his actions, stipulated to violations of DR 1-102(A)(5) and (6).
The final count of the complaint, Count VI, involves, inter alia, two other bankruptcy proceedings handled by respondent, those of Marjorie Heuel and Jacqueline Jones. In the first case, the panel found that respondent failed to return calls to the client, thereby forcing her to appear by herself at a hearing in bankruptcy court. In the second case, the panel determined that respondent did not properly convert a Chapter 7 bankruptcy filing into a Chapter 13 filing, exposing the client to loss of her property. The client herself reached a cash settlement with the trustee in bankruptcy. Respondent stipulated to
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violations of DR 6-101(A)(1), (2), and (3), due to his failure to competently represent these clients.
It was also stipulated by respondent that he had been sanctioned by a United States Bankruptcy Judge in several other cases for failing to supply the trustees in bankruptcy with requested information. Attorney fees in the amount of $681.25 were assessed against respondent, and were paid in full prior to the filing of the complaint in the matter now before this court.
Respondent testified at the hearing on February 25, 1991 that he had been admitted to the bar of the state of Ohio in 1948, but did not commence the active practice of law until 1976. Prior to that time he was in business with his father. Respondent is a sole practitioner and testified that fifty percent of his practice is confined to handling small bankruptcy matters. Respondent offered testimony on all matters in a straightforward manner, and cooperated by stipulating to violations of the Code of Professional Responsibility. Three letters of reference were admitted on his behalf attesting to his integrity and honesty. Respondent also testified that in the summer of 1990 he took twelve hours of continuing legal education relating to bankruptcy law.
The panel recommended that respondent be suspended from the practice of law for a period of one year. The board adopted the findings of fact and conclusions of law of the panel, but also found “a sustained pattern of abuse, fraud, and deception of the courts.” The board recommended to this court that respondent be indefinitely suspended from the practice of law.
Don R. Gardner, Rebecca K. Kaye, Frederick O. Kiel and Edwin W. Patterson III, for relator.
James N. Perry, for respondent.
ALICE ROBIE RESNICK, J.
After a thorough review of the record, we find that respondent has violated the Disciplinary Rules set forth above. Although respondent improperly commingled funds, exercised poor judgment, and was careless in his dealings with clients, he made full disclosure immediately when each matter was called to his attention by the bankruptcy court. All assets were ultimately discovered and full restitution was made to all parties; no individuals have been permanently harmed by respondent’s behavior. Respondent has taken advantage of continuing legal education to improve his knowledge of bankruptcy law. Even though a series of violations have occurred, we do not discern a pattern of intentional misconduct. Accordingly,
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we suspend respondent from the practice of law for a period of one year. Costs taxed to respondent.
Judgment accordingly.
SWEENEY, DOUGLAS and H. BROWN, JJ., concur.
MOYER, C.J., HOLMES and WRIGHT, JJ., dissent.
WRIGHT, J., dissenting.
I respectfully dissent. Like the board, I note “a sustained
pattern of abuse, fraud, and deception of the courts.” (Emphasis added.) Accordingly, I would suspend respondent indefinitely.
MOYER, C.J., and HOLMES, J., concur in the foregoing dissenting opinion.