Summary
imposing a one-year suspension on an attorney with a prior disciplinary record who had assisted his client in the deliberate violation of a temporary restraining order
Summary of this case from Cincinnati Bar Ass'n v. HauckOpinion
No. 91-855
Submitted June 26, 1991 —
Decided October 16, 1991.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Supreme Court, No. 90-16.
Relator, Stark County Bar Association, filed a complaint on February 27, 1990, charging respondent, Harry K. Osborne, Jr., with violating DR 1-102(A)(5) (conduct prejudicial to the administration of justice), 1-102(A)(6) (conduct adversely reflecting on fitness to practice law), 7-102(A)(1) (taking action on client's behalf to harass or maliciously injure another), and 7-106(A) (disregarding ruling of a tribunal). Respondent filed a timely answer and the matter was heard before a panel of the Board of Commissioners on Grievances and Discipline of the Supreme Court on October 26, 1990.
The complaint stemmed from Osborne's representation of Rick Eugene Weston, who had filed for a divorce from Myra Jeannette Weston (n.k.a. Myra Jeannette Wesley). Myra's attorney, J. Whitney Ake, filed with the Stark County domestic relations court a proposed order restraining Rick from "selling, mortgaging, or otherwise encumbering, disposing of or removing * * * all bank accounts, contents of safety deposit boxes, stocks, bonds, insurance policies, household furnishings, automobiles, tools, guns, jewelry, coin or stamp collections, sporting equipment, or any other real or personal property of the parties, not otherwise specified above." The court approved the proposed order on April 25, 1989. Osborne filed a similar proposed restraining order against Myra on behalf of Rick.
On May 15, 1989, a referee of the court issued a "court order." In it, plaintiff (Rick) agreed to make all future mortgage payments on the couple's residence and to make up mortgage payments that were in arrears. Both Ake and Osborne signed the order. However, Rick did not keep up the mortgage payments.
On May 26, 1989, Ake called Osborne to complain about Rick's failure to obey the temporary court order. Osborne told Ake that Rick would not make the mortgage payments unless Myra vacated the residence. Ake refused this demand.
On June 8, 1989, Osborne filed a bankruptcy petition on Rick's behalf. Osborne informed neither opposing counsel nor the domestic relations court of this action. At the bankruptcy hearing, a representative of Citizens Savings Bank, the mortgagee, told Rick that the bank was starting foreclosure proceedings on the house. However, the bank offered instead to accept a quitclaim deed assigning Rick's interest in the house to the bank. Osborne prepared, witnessed, and notarized the deed, and gave it to Rick for delivery to the bank.
On June 14, 1989, Ake moved that the domestic relations court find Rick in contempt. Ake's motion alleged, inter alia, that Rick had failed to make the mortgage payments as ordered. Osborne filed a response stating that Rick had transferred his interest in the house to the bank; Osborne believed that Rick therefore had no obligation to make further payments. Osborne argued that this transfer did not violate the restraining order because the order referred to "other real estate" and did not specifically apply to the house. Osborne's response also claimed that Rick "has not had steady employment nor sufficient income to meet his financial obligations." However, that statement was not consistent with Rick's willingness to make the mortgage payments if Myra would move out of the house.
On August 28, 1989, Judge W. Don Reader of the domestic relations court held a hearing on the contempt motion. The court found that Rick and Osborne had transferred the property to the bank so that Rick could avoid making the payments. The court ordered that Osborne's actions be referred to the Stark County Bar Association for appropriate action.
Osborne conceded that his preparation of the quitclaim deed violated the restraining order. He claimed that through carelessness, he had honestly misread the order. However, Judge Reader testified: "I don't see how you could * * *" misinterpret the order. Moreover, Osborne, by his own admission, knew it to be common practice in most divorce cases to restrain the transfer of property by the parties; in fact, he had filed his own proposed restraining order in the Weston case, which he stated was in the form he usually employed.
Myra was able to refinance the house, and nothing in the record indicates that she suffered any loss because Rick transferred his interest to the bank.
The panel found that Osborne had violated DR 1-102(A)(5) and 7-106(A). The panel noted that Osborne had been indefinitely suspended from the practice of law in 1982. Stark Cty. Bar Assn. v. Osborne (1982), 1 Ohio St.3d 140, 1 OBR 175, 438 N.E.2d 114. The panel recommended a six-month suspension. The board adopted the panel's findings, conclusions of law, and recommendation.
Vogelgesang, Howes, Lindamood Brunn, Richard Milligan, Amerman, Burt Jones and William W. Emley, for relator.
Vincent Bernabei, for respondent.
We agree with the board's findings, but decline to follow its recommendation as to the penalty. We find a six-month suspension insufficient. As the panel noted, this is the second time Osborne has violated the Code of Professional Responsibility. In view of his past conduct, which involved conflicts of interest, a six-month suspension is too light a penalty for this repeat offender. See Gov.Bar R. V(8). Moreover, Osborne compounded his offense by claiming that he misunderstood the restraining order. His argument that the order's language somehow excluded the residence was indefensible; his claim that he so believed is incredible. Therefore, respondent, Harry K. Osborne, Jr., is suspended from the practice of law in Ohio for one year. Costs taxed to respondent.
Judgment accordingly.
MOYER, C.J., SWEENEY, HOLMES, WRIGHT and RESNICK, JJ., concur.
DOUGLAS and H. BROWN, JJ., dissent.
I would suspend the respondent for six months as recommended by the Board of Commissioners on Grievances and Discipline.
DOUGLAS, J., concurs in the foregoing dissenting opinion.