The opinion
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Office of Disciplinary Counsel v. Cordova.
[Cite as Disciplinary Counsel v. Cordova (1993), Ohio
St.3d .]
Attorneys at law -- Misconduct -- Public reprimand -- Neglect
of a legal matter -- Conduct prejudicial to the
administration of justice -- Conduct that adversely
reflects on one's fitness to practice law -- Failure to
decline proffered employment and not continue multiple
employment if exercise of independent professional
judgment on behalf of client will or is likely to be
affected by representation of another client -- Conduct
involving dishonesty, fraud, deceit or misrepresentation.
(No. 92-2192 -- Submitted February 10, 1993 -- Decided
August 4, 1993.)
On Certified Report by the Board of Commissioners on
Grievances and Discipline of the Supreme Court, No. 91-37.
In a complaint filed October 21, 1991 and amended on
November 14, 1991, relator, Office of Disciplinary Counsel,
charged in Count I that respondent, Carlos A. Cordova of
Perrysburg, Ohio, Attorney Registration No. 0030188, had
violated DR 6-101(A)(3) (neglecting a legal matter entrusted to
him), 1-102(A)(5) (engaging in conduct prejudicial to the
administration of justice), and 1-102(A)(6) (engaging in
conduct that adversely reflects on his fitness to practice law).
In Count II relator was charged with violation of DR
6-101(A)(3) (neglecting a legal matter entrusted to him),
1-102(A)(5) (engaging in conduct that is prejudicial to the
administration of justice), and 1-102(A)(6) (engaging in
conduct that adversely reflects on his fitness to practice law).
The evidence before a panel of the Board of Commissioners
on Grievances and Discipline of the Supreme Court revealed that
respondent was the attorney for Harry G. Fenneberg, the
executor of the estate of his sister Doris R. Fenneberg. Doris
died in 1978. From 1978 to 1989, Harry did not complete the
administration of the estate. Approximately two months after
Doris' death, respondent filed a motion for an extention to
prepare and file an inventory of the estate. Harry died in
March 1988. In April 1988, respondent was appointed executor
of Harry's estate, by his own application.
Attorney B. Thomas Handwork, Jr. was contacted by a client
who wanted to purchase Harry's home. Handwork found that the
Emma Fenneberg Trust owned the property. The First Unitarian
Church also called Handwork to determine if it had an interest
in the estate of Harry Fenneberg.
Handwork filed a motion to have respondent removed as
executor of Harry's estate because of a potential conflict.
(Doris' will indicated that if Harry did not survive the
administration of her estate, the assets of her estate would
pass to the University of Toledo College of Law, and respondent
may have contributed to the delay in the administration of
Doris'estate. The motion was granted.) Three days after
Handwork's motion, respondent asked to be appointed executor of
Doris' estate. The motion was granted.
The probate court appointed Handwork as successor trustee
to Doris' estate. The court also appointed Handwork as the
administrator of the Caroline Fenneberg estate. Handwork
closed out the Emma Fenneberg Trust by selling the remaining
asset, the house in which Harry and Doris had lived.
Prior to completing the trust, there was a dispute as to
access to the house. Handwork filed a motion with the court so
that respondent would provide access to the house. In regard
to the administration of the estate of Carol Fenneberg,
Handwork was forced to file a motion to compel production and a
motion to prohibit concealment of assets in order to obtain
stock certificates, bonds and bank accounts. Also, while
Handwork was completing the trust, he found that dividend
checks from 1978 to 1989 made payable to the Emma Fenneberg
Trust had not been cashed. He had to have the checks
reissued.
In regard to Counts I and II, the panel concluded that
respondent did not complete even the most elemental functions
of administering the estate. Although respondent argued that
Harry Fenneberg impeded the administration of the estate,
respondent did not approach the probate court and inform the
court that he could no longer proceed in the matter due to
Harry's actions. The board concluded that respondent violated
DR 6-101(A)(3)(neglect of a legal matter); 1-102(A)(5)(conduct
prejudicial to the administration of justice); and 1-102(A)(6)
(conduct that adversely reflects on one's fitness to practice
law), for failure to complete the estate of Doris Fenneberg,
including the failure to timely file an Ohio estate tax
return.
In Count III, the panel found that respondent violated DR
5-105(A) and (B) (decline proferred employment and not continue
multiple employment if the exercise of a lawyer's independent
professional judgment on behalf of his client will or is likely
to be affected by his representation of another client). This
is based on the fact that respondent sought to be named
fiduciary of the estates of Doris Fenneberg and Harry Fenneberg
where it was likely there was a conflict between claimants to
the estates, which had been caused by the dilatory nature of
respondent's work in representing the estate of Doris Fenneberg.
In Count IV, the panel found respondent to have violated
DR 6-101(A)(3) (neglect of a legal matter entrusted to him);
1-102(A)(5) (conduct prejudicial to the administration of
justice); and 1-102 (A)(6) (conduct that adversely reflects on
one's fitness to practice law), for failing to complete the
administration of the Caroline Fenneberg estate.
In Count V, the panel found respondent violated DR
1-102(A)(4) (conduct involving dishonesty, fraud, deceit or
misrepresentation), and 1-102(A)(6) (conduct that adversely
reflects on his fitness to practice law). These are based on
filing fiduciary income tax returns for the estate of Caroline
Fenneberg naming Harry Fenneberg as executor, when he was not
the executor for the estate.
In Count VI, the board found relator violated DR
6-101(A)(3) (neglect of a legal matter entrusted to him),
1-102(A)(5) (conduct prejudicial to the administration of
justice), and 1-102(A)(6) (conduct that adversely reflects on
one's fitness to practice law), by failing to failing to wrap
up the estate of the Emma Fenneberg Trust in order to complete
the administration of the estates of Caroline Fenneberg and
Doris Fenneberg.
In Count VII, the panel found relator violated DR
1-102(A)(5) (conduct prejudicial to the administration of
justice), and 1-102(A)(6) (conduct that adversely reflects on
one's fitness to practice law). This is based on respondent's
failure to cooperate with Handwork, who was the successor
trustee of the Emma Fenneberg Trust and the administrator of
the Harry Fenneberg estate. The board found the other counts
in the amended complaint were not established.
The panel recommended a one-year suspension from practice
with six months suspended upon condition that respondent not be
found in violation of any other Disciplinary Rules for three
years. The board adopted the findings of fact, conclusions of
law, and the penalty recommendation of the panel.
J. Warren Bettis, Disciplinary Counsel, and Karen B. Hull,
Assistant Disciplinary Counsel, for relator.
Mark H. Aultman, for respondent.
Per Curiam. We concur in the findings of misconduct by
the board. However, we differ with the board's
recommendation. We order instead that respondent by publicly
reprimanded. Costs taxed to respondent.
Judgment accordingly.
A.W. Sweeney, Douglas, Resnick, F.E. Sweeney and Pfeifer,
JJ., concur.
Moyer, C.J., and Wright, J., dissent.
Wright, J., dissenting. I would follow the
recommendation of the Board of Commissioners on Grievances and
Discipline and suspend respondent from the practice of law for
one year, with six months suspended upon condition that
respondent not be found in violation of any other Disciplinary
Rules for three years.
Moyer, C.J., concurs in this foregoing dissenting opinion.