TOLEDO BAR ASSN. v. ZAVAC, 40 Ohio St.3d 337 (1988)

533 N.E.2d 722

No. D.D. 88-17Supreme Court of Ohio.Submitted November 1, 1988 —
Decided December 30, 1988.[*]

Attorneys at law — Misconduct — Indefinite suspension — Neglect of legal matters — Failure to render appropriate accounts.

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Supreme Court, No. 23-87-B.

By complaint filed August 18, 1987, relator, Toledo Bar Association, charged respondent, Louis M. Zavac, with four counts of misconduct. The matter was heard by a panel of the Board of Commissioners on Grievances and Discipline of the Supreme Court on May 27, 1988. During that proceeding, respondent admitted the allegations of fact and misconduct set forth in the complaint.

Count One charged respondent with violations of DR 6-101(A)(3) (neglecting a legal matter entrusted to him), 1-102(A)(1) (violating a Disciplinary Rule), 1-102(A)(6) (engaging in conduct that adversely reflects on an attorney’s fitness to practice law), 9-102(B)(3) (failing to maintain complete records of a client’s properties in attorney’s possession and to render appropriate accounts to the client regarding them), 9-102(B)(1) (failing to promptly notify client of the receipt of his funds, securities or other properties), and 9-102(B)(2) (failing to identify and label client’s securities and properties promptly and to put them in a place of safekeeping as soon as practicable). According to this count, in February 1983, respondent was the attorney of record and executor for the estate of Donald J. Peeps, which was valued at $524,942.90. The inventory and appraisal for the Peeps estate was due on March 28, 1983, but respondent did not file them until January 21, 1986. The first accounting was due September 28, 1983, but respondent did not file it on or after that date. Although the Ohio estate tax return for the estate was due on November 23, 1983, respondent did not file it until January 28, 1986. The estate paid $1,045.83 in interest because of this dilatory filing.

In addition, respondent held one hundred twenty uncashed checks that were payable to decedent Peeps or payable jointly to Peeps and his surviving spouse. The checks were dated February 14, 1983 to October 15, 1986. The total amount of the checks was $9,031.18. Moreover, the federal and Ohio estate tax returns filed in the estate showed the payment of $18,500 in attorney fees and $16,800 in executor fees. However, respondent actually paid himself $63,350 from the estate checking account. Respondent did not secure court approval for the attorney fees that he took.

Count Two charged respondent with violations of DR 6-101(A)(3), 1-102(A)(1) and (6), and 9-102(B)(1), (2) and (3). According to this count, in March 1979, respondent was the attorney of record and executor for the

Page 338

estate of Newton C. Spencer, which was valued at $526,091.94. The inventory and appraisal for the Spencer estate was due on April 9, 1979, but respondent did not file it until June 12, 1979. The first accounting in that estate was due October 9, 1979, but respondent did not file it on or after that date. Furthermore the federal estate tax return for the estate showed the payment of $19,550 in attorney fees and an executor commission of $11,750. However, respondent actually paid himself $39,750 from the estate. Respondent again did not secure court approval for any of the attorney fees that he took.

Count Three charged respondent with having violated DR 1-102(A)(6) and 6-101(A)(3) as well. This count alleged that respondent was the attorney of record for a number of other estates and that he either filed papers necessary for administering the estates after the papers were due or did not file them at all. It also alleged that after the death of her husband, Gertrude D. Peeps established a living trust and named respondent as trustee. Although Mrs. Peeps funded the trust with at least $25,000 and had expected respondent to pay her real estate and personal income taxes from the trust, she discovered in April 1987 that her 1984 and 1985 real estate taxes had not been paid. Likewise, on August 11, 1985, Mrs. Peeps was notified by the Internal Revenue Service that her 1983 income tax return had not been filed.

Finally, Count IV charged respondent with violating DR 9-102(A) (failing to maintain client’s funds in an identifiable bank account) and 9-102 (B). According to this count, respondent did not place funds entrusted to him by his clients in a separate trust account. Instead, he used his own personal checking account for this purpose.

Based on his admissions, the board found that respondent violated each of the Disciplinary Rules cited. It recommended that respondent be indefinitely suspended from the practice of law in Ohio.

Craig F. Frederickson and Martin J. Witherell, for relator.

Jon D. Richardson, for respondent.

Per Curiam.

Having thoroughly reviewed the instant record, this court concurs with the board’s findings and its recommendation. Accordingly, respondent is hereby ordered indefinitely suspended from the practice of law in Ohio. Costs taxed to respondent.

Judgment accordingly.

MOYER, C.J., SWEENEY, LOCHER, HOLMES, DOUGLAS, WRIGHT and H. BROWN, JJ., concur.

Page 339