Cincinnati Bar Assn. v. Randolph

[This opinion has been published in Ohio Official Reports at 85 Ohio St.3d 325.]

CINCINNATI BAR ASSOCIATION v. RANDOLPH.

[Cite as Cincinnati Bar Assn. v. Randolph, 1999-Ohio-268.]

Attorneys at law—Misconduct—Public reprimand—Collecting an illegal or clearly

excessive fee—Failing to pay upon request client funds that client is entitled

to receive.

(No. 98-2685—Submitted February 10, 1999—Decided April 7, 1999.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 97-103.

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{¶ 1} On December 8, 1997, relator, Cincinnati Bar Association, filed a

complaint charging respondent, Daniel P. Randolph of Cincinnati, Ohio, Attorney

Registration No. 0029075, with violating several Disciplinary Rules. After

respondent submitted an answer and the parties filed stipulations, the matter was

heard by a panel of the Board of Commissioners on Grievances and Discipline of

the Supreme Court (“board”).

{¶ 2} The panel found that in 1970, Louise Loretta Woehler executed a will

providing in Item IV that the residue of her estate be held in trust for certain

purposes, including paying up to $1,500 of the burial expenses of her son, Louis L.

Ihrig, if he survived Woehler. Item IV of the will also provided that the residue of

Woehler’s estate be held in trust for the benefit of her four grandchildren and

directed that the trustees distribute the trust’s corpus and income to the

grandchildren when the youngest of them reached the age of thirty. In 1978,

Woehler died, and Ihrig survived her. First National Bank of Cincinnati, n.k.a. Star

Bank N.A. (“First National”), was appointed executor of the estate and trustee of

the testamentary trusts.

SUPREME COURT OF OHIO

{¶ 3} In late 1984, when the will required final distribution of the

testamentary trusts to Woehler’s four grandchildren, First National requested that

respondent prepare an application to establish a burial fund for Ihrig. Respondent

then filed an application on behalf of First National, requesting that the probate

court authorize that $1,500 be withdrawn from the trusts and deposited into a

savings and loan account in respondent’s name in trust, to be payable with all

accrued interest on the death of Ihrig for his burial expenses. In January 1985, the

probate court approved the application and ordered First National to deliver $1,500

to the savings and loan, with the money to be released to Ihrig’s estate or the funeral

home selected by his next of kin on his death to be used for his burial. First National

issued the $1,500 check payable to the savings and loan with instructions to deposit

the money in a savings account in respondent’s name as trustee until Ihrig’s death.

{¶ 4} When Ihrig died in July 1995, the amount in the savings and loan

burial fund account, with accrued interest, totaled $2,725.09. Upon being informed

by the funeral home about Ihrig’s death, respondent sent the funeral home a check

in the amount of $1,500. He kept the remaining $1,225.09 in the burial account as

a fee for the services rendered even though he (1) did not do anything other than

determine whether an annual tax form was required to be filed, (2) did not have

prior written authorization from the probate court for any fee, and (3) did not enter

into any written fee agreement with First National, Woehler, or her grandchildren.

{¶ 5} In March 1997, one of Woehler’s grandchildren demanded that

respondent provide an invoice and accounting of his $1,225.09 fee. Respondent

did not offer to return the money until December 1997, when he filed his answer to

relator’s disciplinary complaint.

{¶ 6} The panel concluded that respondent’s conduct violated DR 2-106(A)

(collecting an illegal or clearly excessive fee) and 9-102(B)(4) (failing to pay upon

request client funds which client is entitled to receive).

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January Term, 1999

{¶ 7} In mitigation, the panel found that respondent initially erroneously

believed that he was entitled to the fee. It was not until he read the disciplinary

complaint and attached exhibits that respondent realized that he had no right to a

fee, and he returned the remaining account money to the grandchildren.

Respondent accepted complete responsibility for his error and testified that he had

no previous disciplinary violation in a lengthy legal career. The panel heard

witnesses and received letters attesting to respondent’s exceptional professional

ability and exemplary character for honesty and integrity.

{¶ 8} The panel recommended that respondent receive a public reprimand.

The board adopted the findings, conclusions, and recommendation of the panel.

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Nancy J. Gill, G. Mitchell Lippert and Richard H. Johnson, for relator.

John H. Burlew and Charles W. Kettlewell, for respondent.

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Per Curiam.

{¶ 9} We adopt the findings, conclusions, and recommendation of the

board. A public reprimand is the appropriate sanction for respondent’s isolated act

of misconduct. See Akron Bar Assn. v. Naumoff (1991), 62 Ohio St.3d 72, 578

N.E.2d 452, and Mahoning Cty. Bar Assn. v. Gilmartin (1991), 62 Ohio St.3d 10,

577 N.E.2d 350, where we publicly reprimanded and ordered attorneys to make full

restitution to clients for violating DR 2-106(A). As the board found, once

respondent became aware of his error in retaining a fee from the burial fee account,

he made complete restitution to the beneficiaries of the testamentary trust and

accepted complete responsibility for his actions. Respondent is hereby publicly

reprimanded. Costs taxed to respondent.

Judgment accordingly.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and

LUNDBERG STRATTON, JJ., concur.

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SUPREME COURT OF OHIO

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