Summary
imposing a one-year suspension on an attorney who, for an unrelated client, prepared a will and established joint-and-survivorship accounts through which the attorney and his son received more than $200,000
Summary of this case from Toledo Bar Ass'n v. BishopOpinion
No. 87-12
Decided April 6, 1988.
Attorneys at law — Misconduct — One-year suspension — Preparation of client's will where attorney and his son are named sole beneficiaries — EC 5-5.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Bar.
On September 8, 1986, relator, Mahoning County Bar Association, filed a complaint against respondent, Gus K. Theofilos, alleging a single count of misconduct. This complaint was amended on November 24, 1986 to identify the Disciplinary Rules allegedly violated. Respondent answered the amended complaint on January 20, 1987. A hearing was held before a panel of the Board of Commissioners on Grievances and Discipline of the Bar on April 8, 1987.
The complaint as amended alleged that respondent was retained by Philomina G. Dailey in September 1984 to probate the will of her sister, Elizabeth Dailey. Philomena had initially appeared in respondent's office without an appointment. Respondent thereafter performed the services necessary to probate Elizabeth Dailey's will. Elizabeth's estate, to which Philomena had been named executor, was opened on October 4, 1984 and closed on February 4, 1985.
Philomena was born on April 18, 1903. She was a school teacher for much of her life and had lived with her sister at the time of Elizabeth's death. Neither she nor Elizabeth had ever married.
Both Elizabeth and Philomena had executed identical wills which left their assets to each other. During the period in which respondent handled Elizabeth's estate, respondent and Philomena discussed the effect of Elizabeth's demise on the terms of Philomena's will. Respondent was of the opinion that since Elizabeth had pre-deceased Philomena, Philomena's will would be ineffectual, such that Philomena's estate would pass to her next of kin. According to respondent, Philomena responded to this information by saying that she did not want her estate to be distributed in such a way. She added that "we'll tend to * * * [the matter] when Elizabeth's estate is wrapped up."
Philomena apparently visited respondent's office regularly during the last three months of 1984. She would often have respondent look over a bill for which she had already drawn a check and balanced her checkbook, just to see if it was "okay." Their discussions turned to the subject of respondent's son, Ian, who was going to nursery school at the time. Respondent testified at the hearing that Philomena had indicated interest in Ian's education.
Philomena did not again refer to her desire to have a new will prepared until January 1985. About the time Elizabeth's estate was to be closed, Philomena told respondent, "When we do my new will, I'm going to want to leave my savings bonds to your son Ian for his education." These savings bonds had a value of approximately $6,600. Respondent attested to having thanked Philomena and having said: "I'm sure when Ian is of age, he'll appreciate this and thank you too, but, if that's the case, then you should consider having another attorney involved with the drawing up of this will." Philomena supposedly replied to this suggestion, "Well, I don't think I want to go to any other attorney."
A week or so later, Philomena came to respondent's office and told him that she had decided what to do with her estate. Respondent testified that Philomena then explained how she wanted her funeral arranged and that she wanted flowers placed on her family's plot on Memorial Day for a number of years to come. She also indicated her desire to insert some derogatory language in her will about several living members of her family and that she wanted a no-contest clause. According to respondent, Philomena then stated:
"I don't know what I would have done without you, I think the world of you. * * * I think God must have led me to you and after my bills are paid, I want to leave the rest of my estate to you."
Respondent apparently realized the ethical difficulties associated with his preparing a will in which he and his son were to be designated heirs. He was also concerned about the problems that Philomena's relatives, a group she collectively referred to as "the cousins," might create. While he suggested on several occasions that Philomena secure the services of another attorney to draft her will, respondent did prepare Philomena's last will and testament in which he and his son were named sole beneficiaries. Respondent was also named executor of the estate. On February 8, 1985, the will was executed in the presence of three witnesses.
Philomena died on June 18, 1985. Respondent filed tax release forms with the Mahoning County Probate Court on June 21, 1985. The entire estate did not pass through probate, however, because Philomena had previously authorized respondent to establish joint and survivorship bank accounts in both their names. These accounts totalled approximately $206,000. Thus, respondent and his son stood to receive over $200,000 from respondent's relationship with Philomena.
Relator charged that respondent's actions in the foregoing matter violated DR 1-102(A)(4) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) and DR 5-101(A) (accepting employment where the exercise of professional judgment on behalf of a client will or reasonably may be affected by one's own financial or personal interest and where the client's consent after full disclosure was not secured). Relator additionally charged that respondent's conduct violated EC 5-5 (other than in exceptional circumstances, a lawyer should insist that an instrument in which his client desires to name him beneficially be prepared by another lawyer selected by the client) and EC 5-6 (a lawyer should not consciously influence a client to name him as executor, trustee, or lawyer in an instrument and, in those cases where a client wishes to name his lawyer as such, care should be taken by the lawyer to avoid even the appearance of impropriety).
The board found that respondent failed to observe the standards delineated in EC 5-5, inasmuch as he did not "insist" that Philomena consult other independent counsel before agreeing to prepare her will. Rather, respondent merely suggested that Philomena "consider" seeing another attorney. In making this finding, the board took note of the facts that: (1) respondent had known Philomena only from her office visits over a four-month period before he prepared the instruments from which he and his son would receive substantial sums of money, and (2) no documentary or testimonial evidence corroborated respondent's version of his professional relationship with Philomena or offset respondent's particular susceptibility to charges of undue influence. Given these circumstances, the board concluded that respondent's conduct violated DR "1-104(A)(6) [ sic, 1-102 (A)(6)]" (engaging in conduct which adversely reflects on one's fitness to practice law) and recommended that respondent be suspended from the practice of law in Ohio for six months.
Comstock, Springer Wilson, Marshall D. Buck and W. Terry Patrick, for relator.
Richard A. Horning, for respondent.
This court finds that respondent violated the aforementioned Disciplinary Rule. While we adopt the board's findings, we find that respondent's conduct requires a more severe sanction than that recommended by the board. Accordingly, respondent is hereby ordered suspended from the practice of law in Ohio for one year. Costs taxed to respondent.
Judgment accordingly.
MOYER, C.J., SWEENEY, LOCHER, DOUGLAS, WRIGHT and H. BROWN, JJ., concur.
HOLMES, J., dissents.
I must dissent insofar as I would require as condition of reinstatement that the monies and assets received from this estate be returned to those who would otherwise have inherited such assets.