567 N.E.2d 1038
No. 90-1703Supreme Court of Ohio.Submitted November 13, 1990 —
Decided March 13, 1991.
Attorneys at law — Misconduct — Six-month suspension on conditions — Deceitfully administering estates — Administering estates as intestate proceeding while retaining a copy of the wills — Failure to disclose wills to probate court.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Supreme Court, No. 89-74.
Relator, Cincinnati Bar Association, filed a complaint against respondent, Robert R. Lowery, on December 18, 1989, charging him with multiple violations of the Code of Professional Responsibility in each of three counts. An amended complaint was filed March 15, 1990, adding two violations of the code in a fourth count. Respondent filed answers to the original and amended complaints, admitting many of the allegations against him. In addition, agreed stipulations were filed on June 27, 1990. A hearing was held before a panel of the Board of Commissioners on Grievances and Discipline (“the board”) on July 2, 1990, where additional facts were admitted.
Count I of the amended complaint alleged respondent deceitfully administered the estate of Milton A. Swan as an intestate proceeding in two ways: by purposely misrepresenting decedent’s heirs at law who would take through intestate succession, and by proceeding as if the decedent died intestate when the respondent knew otherwise, because respondent retained a copy of the testator’s will. It was disclosed at the hearing that decedent’s will left $1 to his daughter, Audrey Lee Ivanko, and the remainder to his wife, who predeceased him, with an alternate clause over to his nephew by marriage, Harvey W. Fergus, who died shortly after the testator. The testator’s brother, James E. Swan, retained respondent to handle the estate, and respondent subsequently filed a document with the probate court listing James E. Swan as the only heir at law of the decedent. Respondent admitted these allegations in his answer and stipulations. Relator charged this conduct violated DR 1-102(A)(3) (engaging in illegal conduct involving moral turpitude), 1-102(A)(4) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), 1-102(A)(5) (engaging in conduct prejudicial to the administration of justice), 1-102(A)(6) (engaging in any other conduct adversely reflecting on one’s fitness to practice law), 7-102(A)(3) (concealing or knowingly failing to disclose what the law requires to be revealed), 7-102(A)(5) (knowingly making a false statement of law), and 7-102(A)(7) (engaging in conduct known to be illegal or fraudulent).
Count II alleged that respondent administered the estate of Harvey W. Fergus as an intestate proceeding, purposely misrepresenting that James E. Swan was the decedent’s only heir at law, while knowingly retaining a copy of the decedent’s will. Decedent’s will left $1 each to his sisters Roberta Parish and Betty Lou White, and the remainder of his estate to his aunt, Helen R. Swan, who predeceased testator, with an alternate clause over to his uncle by marriage, Milton A. Swan, who also predeceased him. If the will
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had been probated, respondent’s client, James E. Swan, would have received nothing. Respondent admitted these allegations in his answer and stipulations. Relator charged that respondent’s conduct violated DR 1-102(A)(3), 1-102(A)(4), 1-102(A)(5), 1-102(A)(6), 7-102(A)(3), 7-102(A)(5), and 7-102(A)(7).
Count III alleged respondent failed to disclose the Swan and Fergus wills to the probate court, a violation of R.C. 2913.42(A)(1), a felony of the fourth degree. Respondent admitted in his answer and stipulations to committing misrepresentations of fact, but denied that he intended to defraud anyone. Relator charged that respondent’s conduct violated DR 1-102(A)(3), 1-102(A)(4), 1-102(A)(5), 1-102(A)(6), 7-102(A)(3), 7-102(A)(5), and 7-102(A)(7).
Count IV alleged respondent was incompetent to handle probate matters and should not have taken on the Swan and Fergus estates. At the hearing, respondent admitted he did not handle this matter competently. Relator charged respondent’s conduct violated DR 6-101(A)(1) (handling a legal matter one is not competent to handle), and 6-101(A)(3) (neglect of a legal matter).
Respondent alleged that he was trying to further the testators’ intent by disregarding their wills after the death of Fergus. Respondent drew up an agreement between James Swan, Betty White, and Roberta Parish to share the proceeds of the Fergus and Swan estates equally. No provision was made for Audrey Ivanko in the distribution agreement. Respondent also argued that he received no personal gain from his involvement with the estates, that he ultimately turned over the estates’ assets to the new administrator, and that the division of property was made without detriment to the parties involved.
The panel recommended that respondent receive a six-month suspension from the practice of law, based on respondent’s remorse for his actions, and due to the fact that no damage was suffered by any of the parties involved. The board adopted the recommendation of the panel. Respondent took exception to the suspension and urged this court to publicly reprimand him instead. Relator replied that a public reprimand was not a sufficient sanction for violations of DR 1-102(A)(4), 7-102(A)(3), 7-102(A)(5), and 6-101(A)(1).
Mark J. Jahnke and Jon Hoffheimer, for relator.
Donald A. Schenck, for respondent.
Per Curiam.
We agree with the findings and recommendations of the board. A public reprimand is not an adequate sanction for the code violations with which respondent has been charged. Respondent is hereby suspended from the practice of law for a period of one year, with the final six months of that period suspended pending respondent’s successful completion of a six-month period of probation.
Costs taxed to the respondent.
Judgment accordingly.
SWEENEY, HOLMES, DOUGLAS, H. BROWN and RESNICK, JJ., concur.
MOYER, C.J., and WRIGHT, J.,
dissent and would suspend respondent from the practice of law for a period of one year.
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