D.D. No. 1
Decided March 5, 1958.
Attorneys at law — Disciplinary power of Supreme Court — May prescribe rules of procedure — Rule XXVII — Constitutional law — Attorney committing fraud upon court — Inherent power of Supreme Court to discipline.
1. The Supreme Court of Ohio has inherent power as to the disciplining of attorneys admitted to practice in this state and may provide by rule the procedure with reference to such disciplining.
2. Rule XXVII of the Supreme Court, as amended effective January 1, 1957, as it applies to procedure in reference to the exercise of original jurisdiction by the Supreme Court in the disciplining of attorneys, is constitutional.
3. Where an attorney is guilty of fraud upon the court, in his actions as an administrator of an estate and as an attorney for the heir of such estate, this court, acting within its inherent power, may discipline him.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline.
The present cause is before this court upon objections to the final report of the Board of Commissioners on Grievances and Discipline, including its findings of fact and recommendations.
This court, having determined to exercise more fully original disciplinary powers over the Bar of this state and the members thereof, amended its Rule XXVII, effective January 1, 1957.
Under such amendment, the Board of Commissioners on Grievances and Discipline is set up, empowered and charged to receive, entertain, inquire into, take proofs, make findings, and submit recommendations to this court concerning complaints of misconduct of attorneys and concerning petitions for reinstatement as attorney. Such board is empowered to investigate upon its own motion and refer any matters to a grievance committee of an appropriate local bar association or to the Committee on Legal Ethics and Professional Conduct of the Ohio State Bar Association.
The commissioners are appointed by this court, one from each of 17 districts. The board has exclusive jurisdiction concerning the investigation of complaints and grievances as to attorneys and judges, and all proceedings for reinstatement of an attorney, although nothing is to be construed to prevent any committee of a regularly organized bar association or the Ohio State Bar Association from investigating and reporting on any complaint filed with either of them.
The rule defines misconduct as a violation of the oath of office taken upon admission to practice law, or as any violation of the Canons of Professional Ethics or the Canons of Judicial Ethics as adopted by this court from time to time, or as the commission of or conviction for a crime involving moral turpitude.
The following four grades of discipline are established:
(a) A permanent disbarment from the practice of law.
(b) Suspension for an indefinite period from the practice of law, subject to reinstatement upon certain conditions.
(c) A public reprimand.
(d) A private reprimand.
The rule sets forth the manner of making a complaint and the duty of the board upon the filing of the complaint as to notice to respondent and time for answer, provides for a hearing of the complaint by a panel of three commissioners, no one of whom shall be a resident of the district from which the complaint originated, and sets forth the power of the panel to dismiss the complaint if found without merit or to administer a private reprimand. If the panel finds that a more severe disciplinary action is merited, it shall make a certified report, including its findings and recommendations, to the board of commissioners, which must review such findings, and, if the board finds that a public reprimand, suspension or disbarment is merited, the board shall make a final certified report of its proceedings, including its findings of fact and recommendations, and shall file the same, together with the transcript of testimony taken, with the clerk of this court. The rule then provides for the filing of objections to the report of the board by the one against whom the charges have been filed and for a review and final order in respect thereto by this court.
The rule provides further that all proceedings shall be private until filed in this court, unless the one against whom the charges are made shall request in writing that they be public.
The rule provides in detail for petitions for reinstatement and proceedings incident thereto, which provisions are not of importance in the present case.
The present case originated by the filing of charges by the Cleveland Bar Association against Henry H. Pleasant, and, after the matter was considered by the Board of Commissioners on Grievances and Discipline, that board made findings of fact and recommendations, as follows:
"This matter came on for consideration before the Board of Commissioners on Grievances and Discipline on the pleadings, the evidence, the exhibits, on the briefs of counsel, and on the transcript of the proceedings before the hearing panel. Said board of commissioners hereby makes the following findings of fact:
"1. The respondent, Henry H. Pleasant, on February 19, 1949, was duly appointed by the Probate Court of Cuyahoga County as administrator of the estate of William A. Wright, deceased.
"2. The respondent also acted as attorney for the estate of William A. Wright, deceased.
"3. The respondent also represented, as attorney, one of the claimants, William Wright, who was later determined by the court to be the sole heir of the estate of William A. Wright, deceased.
"4. The respondent represented the claimant, William Wright, as attorney, from on or about the 15th day of March 1949, until the termination of said estate.
"5. The respondent at no time made full and complete disclosure to the judge or any officer of the Probate Court of Cuyahoga County of his representation of William Wright, claimant or sole heir of said estate.
"6. The respondent made a fee arrangement on a percentage basis with William Wright for a share of his recovery from the estate of William A. Wright, deceased, as evidenced by a written contract dated September 20, 1949, of which no disclosure was made.
"7. The respondent, as a result of his conduct with reference to said estate, was, as a matter of record, found guilty of perpetrating a fraud on the Probate Court of Cuyahoga County, which finding remains unreversed and unmodified.
"8. The respondent violated the statutory requirements provided for in Section 10509-193, Ohio General Code (Section 2113.36, Ohio Revised Code), relative to the further allowance of counsel fees to be charged against an estate.
"9. The respondent violated the established practice in the Probate Court of Cuyahoga County relative to the procedure pertaining to the allowance of counsel fees to be charged against an estate.
"10. It is therefore the determination of the board of commissioners that the respondent, Henry H. Pleasant, has violated Section 5 of Rule XXVII on disciplinary procedure of the Supreme Court of Ohio. The respondent is guilty of misconduct in that he violated his oath of office and the Canons of Professional Ethics, more particulary sections 6, 29, 32, and 38 of said canons."RECOMMENDATION
"The Board of Commissioners on Grievances and Discipline hereby recommends that the respondent, Henry H. Pleasant, be suspended from the practice of law for an indefinite period."
Henry H. Pleasant was admitted to the Bar of the state of Ohio in 1931 and has been practicing law ever since that date, except that in 1941 he was suspended from practice for eight months by the Common Pleas Court of Cuyahoga County.
In 1949, much of Pleasant's practice consisted of Probate Court work.
On February 16, 1949, one William A. Wright, whom Pleasant had known since 1944 but had never represented, died intestate.
A Bessie Hansen called Pleasant to come to a funeral home, which he did, taking with him an application for the appointment of an administrator. Upon arrival at the funeral home, he met Hansen and two others who claimed to be second cousins of the deceased. Pleasant had never before known these people and took it for granted that they were second cousins. These second cousins requested Pleasant that he be appointed administrator, they signed waivers on the application for appointment, and, on February 19, Pleasant obtained such appointment.
On February 20, Pleasant and the second cousins went to the deceased's house to search for a possible will, bankbooks, or papers.
Shortly thereafter, a woman by the name of Helen Pavloski came to Pleasant's office and claimed to have been the common-law wife of the deceased, and a few days later she returned with a young man whom she claimed was her son by the deceased.
Pleasant told her he would not recognize her claim and if she wished to press the matter she would have to obtain a lawyer and have the court decide.
On February 22, Pleasant prepared a petition to determine heirship, an application to determine succession tax, and a petition to sell real estate.
About two months after Pleasant's appointment as administrator, William Wright came to Pleasant's office and claimed to be a friend of the family. About 10 days later, Wright returned and claimed to be a first cousin of the deceased.
This happened between March 10 and 15.
The petition to determine heirship was not filed until March 21, 1949.
Pleasant did not advise Wright to obtain a lawyer to represent him as he had done with reference to Pavloski.
Pleasant wrote letters to England and elsewhere and eventually obtained a birth certificate on May 15, 1949, establishing that William Wright was the first cousin of the deceased.
On May 24, 1949, Pleasant amended his petition to determine heirship by adding, in longhand, the following, "Unknown heirs, devisees, legatees, administrators, executors of William A. Wright, deceased, and Agnes Boltz," and in addition the following was written, "William Wright, new party deft."
The petition to sell real estate, which was prepared on February 22, 1949, but not filed until March 22, 1949, failed to set forth the claim and interest of William Wright as first cousin, but was amended May 24, 1949, by adding "William Wright, new defendant."
On June 3, 1949, there was a hearing on the petition to determine heirship, at which time William Wright was found to be the sole heir, and the real estate was ordered sold. On the same date, in Pleasant's office, William Wright discussed with him a new claim made by Pavloski for alleged services. Such claim had been filed on May 19, and, although Pleasant denied that he agreed to act as Wright's individual attorney, apparently, according to testimony Pleasant gave in a previous hearing, he had agreed to be Wright's lawyer with reference to the Pavloski claim.
On September 20, 1949, Pleasant and Wright signed an agreement, which stated that Wright had retained and employed Pleasant to act for and on his behalf in various legal matters pertaining to the estate of the deceased, and that Wright had agreed to pay Pleasant 40 per cent of whatever sums Wright might receive from the estate.
Based upon the wording of the agreement, an inference can be drawn that it was simply a written memorandum of an agreement entered into long before, and such inference, of course, is strengthened by the fact that, although Wright had told Pleasant before March 15 that he was a first cousin of the deceased, and the petition to determine heirship was filed on March 24, Wright was not made a defendant in such petition until May 24.
The final account filed in the administration of the estate shows administrator's fees of $235, and that William Wright was paid $3,612.10.
The final account was prepared on September 20, 1949, and, on September 21, Pleasant and Wright went to the Second Federal Savings Loan, whereupon Wright was given a check for $3,612.10, Pleasant being designated as the maker. The check was approved by an officer of the Second Federal Savings Loan, and then two checks were issued, one to Pleasant for $1,444.84, being 40 per cent of $3,612.10, and the other to Wright for the balance of $2,167.26, or 60 per cent.
The final account does not show that Pleasant received 40 per cent of the estate, nor was it ever brought to the court's attention.
As a result of the proceedings in the settlement of the estate, the Probate Court of Cuyahoga County found that Pleasant had perpetrated fraud upon it, and he was held in contempt. The matter finally reached this court in the case of In re Estate of Wright, 165 Ohio St. 15, 133 N.E.2d 350, where this court held in the syllabus as follows:
"1. It is a fundamental principle of law that, where parties having different interests are involved, no lawyer can represent or receive compensation from such parties without a full disclosure, to all the parties involved, of his dual representation and the arrangements as to the compensation to be received therefrom.
"2. Where an attorney is administrator of an estate and is likewise acting as attorney in such administration, in the absence of a full disclosure concerning an arrangement for compensation from a claimant against the estate and the consent of all interested parties, he impliedly represents that he has no such arrangement.
"3. Where an attorney, who is administrator of an estate, enters into a contract with a claimant against such estate for a percentage of the proceeds which such claimant may receive from the estate, makes no disclosure of such arrangement to the Probate Court in whose jurisdiction such estate is being administered, and such court proceeds to confirm the final account of such administrator, which it probably would not have done had it known of the arrangement, such administrator thereby perpetrates a fraud upon the court, for which the order confirming the final account may be vacated and which may constitute a direct contempt upon the court punishable under Section 2705.01, Revised Code."
Pleasant has presented four objections to the finding of the Board of Commissioners on Grievances and Discipline:
"1. This entire procedure, it is humbly suggested, is based upon an erroneous assumption that respondent occupied an adverse position and represented adverse and conflicting interests.
"2. The panel, and all of the courts that have had anything to do with this matter, assumed the existence of a rule in the Probate Court of Cuyahoga County, which rule in fact did not exist.
"3. The respondent was not afforded a fair legal hearing before the panel inasmuch as he was not advised of the charges he was called upon to answer and certain requests and motions made by the respondent were never acted upon by the panel before, during, or after the hearing.
"4. The entire proceeding before the panel, as well as the rule of this court under which the proceeding was brought and conducted, is unconstitutional."
Mr. S. Burns Weston, Mr. Russell C. Grahame and Mr. Robert J. Grogan, for relator.
Mr. Edwin F. Woodle, Mr. William J. Corrigan and Mr. Charles J. Smith, for respondent.
As to objection No. 1, we are of the opinion that Pleasant is mistaken in his view that the entire procedure in this case is based upon the assumption that he occupied an adverse position and represented adverse and conflicting interests. He strenuously contends that in a proceeding to determine heirship there can really be no conflicting interests, the sole question being who is the heir, and that, therefore, in representing first cousin Wright he was in no sense hostile to the second cousins, who had called him originally and set in motion the proceedings to make him administrator of the estate. It is, however, a fact that Pleasant made an agreement to represent first cousin Wright and received from him 40 per cent of the entire proceeds of the estate, without letting the second cousins know of his relationship with Wright and without disclosing his arrangement to the court.
Pleasant, as the administrator, was entitled to represent himself as administrator and was likewise entitled to receive an allowance for legal services, both ordinary and extraordinary, but, nevertheless, such services should be paid for either by allowance by the Probate Court or after a full disclosure to the court as to any private arrangement he had with an heir of the estate to pay for such services. That he was found to have committed fraud upon the Probate Court was based upon the fact that he failed to disclose to the court or to any one else, except the person who had signed the contract with him, his arrangement to receive 40 per cent of the estate.
As to objection No. 2, Pleasant strenuously contends that the panel and the courts have assumed that there was a rule of the Cuyahoga County Probate Court requiring an attorney to report an attorney fee, and that the testimony demonstrates there was no such rule.
Assuming that such rule did not exist, there is a statute in Ohio, Section 2113.36, Revised Code (Section 10509-193, General Code), which reads in part as follows:
"* * * When an attorney has been employed in the administration of the estate, reasonable attorney fees paid by the executor or administrator shall be allowed as a part of the expenses of administration. The court may at any time during administration fix the amount of such fees and, on application of the executor or administrator or the attorney, shall fix the amount thereof. * * *"
It is obvious that the law of Ohio contemplates that the attorney fees in the administration of an estate shall be allowed and determined by the Probate Court, and, if they are to be paid under a contract with an heir of the estate, who is being represented by the administrator as attorney, such arrangement shall be disclosed to the Probate Court, not only because of the statute above referred to, but as a protection against any overreaching.
As to objection No. 3, that Pleasant was not advised of the charges he was called upon to answer, and that certain requests and motions made by him were never acted upon by the panel before, during, or after the hearing, we are of the opinion that there is no merit therein.
A reading of the record of the proceedings before the panel demonstrates that Pleasant and his counsel were fully aware of what they were called upon to meet.
Objection No. 4 is to the effect that Rule XXVII of this court, under which the present proceeding was brought and conducted, is unconstitutional, and it is strenuously contended (1) that the Supreme Court may not by rule legislate or amend the statutes of Ohio and restrict the inherent power of a lower court; (2) that an attorney may not be deprived of his right to practice law without the right of hearing before any court in this state unless the Supreme Court permits such hearing; and (3) that the Supreme Court may not delegate its judicial powers to a board of commissioners with power to make final judicial determinations.
In reference to such contentions, this court is firmly of the opinion that both the admission to the practice of law and the disciplining of those who have been admitted to practice are matters which come within the inherent powers of the judicial branch of the government, and that, although this court recognizes that the legislative branch may by statute provide standards and qualifications for admission to the bar and methods for the initiation and conduct of proceedings to disbar, suspend, or otherwise discipline attorneys for specified causes, such legislation is to be interpreted as an aid to and not as a limitation on the power of the judicial branch in these respects. In re McBride, 164 Ohio St. 419, 132 N.E.2d 113.
In the case of In re Thatcher, 80 Ohio St. 492, 89 N.E. 39, this court held that "the Supreme Court of Ohio has inherent jurisdiction of proceedings to disbar an attorney, resulting as an incident of its organization as a court, as well as from its power to admit to the Bar."
This pronouncement has never been questioned, except by a dictum in the opinion in the case of In re Hawke, 107 Ohio St. 341, 140 N.E. 583. This dictum was in no way related to the question before the court and was not carried into the syllabus of the case.
In the Hawke case, there had been a judgment of disbarment in the Court of Common Pleas, and it was claimed that there could be an appeal from that judgment as in a chancery proceeding. This court held simply that there could be no such appeal, and that chancery cases do not now and never have comprehended proceedings for disbarment or suspension of attorneys at law. See, also, In re Disbarment of Lieberman, 163 Ohio St. 35, 125 N.E.2d 328.
Obviously, the whole matter with reference to the power to admit attorneys to the practice of law and to disbar, suspend, or otherwise discipline them after admission has been settled in the case of In re McBride, supra.
The first paragraph of the syllabus of the McBride case reads as follows:
"The power to admit attorneys to the practice of law and to disbar, suspend, or otherwise discipline them after admission rests inherently in the judicial branch of the government."
There can be no question now of the inherent power of this court as to the disciplining of attorneys and, therefore, of its power to provide by rule the procedure in reference to hearings upon such questions. That is all that was contemplated in the establishment of the Board of Commissioners on Grievances and Discipline. Such board or its panels have no power to discipline an attorney, except with reference to a private reprimand, and surely that can not constitute a judgment, for the power to give such a reprimand would be inherent without any authorization by this court. As to any other disciplinary action, all that the board can do is to investigate and make findings of fact and recommendations, and the only order or decision is made solely by this court.
As to the contention that, assuming that disbarment is a matter inherent in the judicial branch of the government, it must be inherent not only in the Supreme Court but likewise in all lower courts, Section 1, Article IV of the Ohio Constitution, reads:
"The judicial power of the state is vested in a Supreme Court, Courts of Appeals, Courts of Common Pleas, Courts of Probate, and such other courts inferior to the Courts of Appeals as may from time to time be established by law."
The contention that the Supreme Court can not deny the inherent power of Courts of Common Pleas, with reference to disciplinary actions against attorneys, would be a matter of concern if that question were before us. However, since the present case is one in which only the inherent power of the Supreme Court to discipline an attorney is concerned, and since Rule XXVII only concerns itself, so far as the matter is now before us, with the procedure for exercising disciplinary action before this court, we are impelled to hold that there is nothing unconstitutional about the rule so far as it applies to the present case.
From what we have said, we overrule the objections to the final report of the Board of Commissioners on Grievances and Discipline, including the findings of fact and recommendations of such board, and confirm such report.
Report confirmed and judgment accordingly.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL and HERBERT, JJ., concur.