The opinion
[This decision has been published in Ohio Official Reports at 96 Ohio St.3d 138.]
CLEVELAND BAR ASSOCIATION v. HARRIS.
[Cite as Cleveland Bar Assn. v. Harris, 2002-Ohio-2988.]
Attorneys at law—Misconduct—Indefinite suspension—Converting money
entrusted by an institutionalized client—Failing to cooperate in
disciplinary investigation.
(No. 2001-2231—Submitted May 7, 2002—Decided July 31, 2002.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 00-67.
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Per Curiam.
{¶1} We must decide in this case whether an attorney who converted money
entrusted to him by an institutionalized client should be indefinitely suspended
from the practice of law in Ohio. The Board of Commissioners on Grievances and
Discipline of the Supreme Court recommended that sanction against respondent,
Caesar M. Harris of Cleveland Heights, Ohio, Attorney Registration No. 0021529,
after finding him in violation of DR 1-102(A)(4) and (6) (engaging in dishonest
conduct or conduct that otherwise reflects adversely on his fitness to practice law),
2-106(A) (charging an excessive fee), 6-101(A)(3) (neglecting an entrusted legal
matter), 7-101(A)(3) (prejudicing or damaging client during course of professional
relationship), 9-102(B)(1), (3), and (4) (failing to promptly advise, account for, and
return client’s funds), and Gov.Bar R. V(4)(G) (failing to cooperate in a disciplinary
investigation). We agree that an indefinite suspension is the appropriate
punishment.
{¶2} Respondent, a solo practitioner, was originally retained in 1983 by a
client to protect her interests in a divorce proceeding, particularly her right to
alimony payments ordered by the Cuyahoga County Domestic Relations Court. By
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January 1985, respondent had negotiated an agreement through which his client
would receive fixed monthly alimony payments. In 1991, the client executed a
special power of attorney appointing respondent as her attorney-in-fact to oversee
her finances. Around the same time, the client’s mental instability and, later, her
adjudicated incompetence began necessitating a series of involuntary
hospitalizations.
{¶3} During the next several years, the Cuyahoga County Support
Enforcement Agency paid respondent at least $29,760.64 in alimony pursuant to
the power of attorney. By November 6, 1998, however, respondent had personally
exhausted all but $742.54 of this amount in what he would later describe as “petty-
cash-type withdrawals.” He gave the remaining $742.54 to Theresa Lockridge, his
client’s case manager at Northeast Community Health Center, in response to
Lockridge’s persistent attempts to recover all of the missing alimony and to get an
accounting from respondent. Lockridge had submitted a grievance concerning
respondent’s conduct to relator, the Cleveland Bar Association.
{¶4} Respondent’s client’s guardian, Nelli Johnson, also took action to
recover the missing alimony. She filed a complaint for concealment of assets
against respondent in the Cuyahoga County Probate Court. That court found
respondent guilty based on the itemized fee statement he had specifically prepared
for the Cuyahoga County Support Enforcement Division to justify, long after the
fact, the alimony money he had spent. The court considered the statement, which
claimed that respondent had earned over $24,000 in fees, incredibly excessive and
held that, at best, respondent could have legitimately charged his client only about
one third of that amount.
{¶5} After investigating Lockridge’s grievance, relator initiated this action
on August 14, 2000, by filing a complaint with the board. A panel of the board
heard the cause, including the parties’ stipulations of fact, and found the facts as
stated. Based on the panel’s report, the board concluded that respondent had acted
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January Term, 2002
dishonestly and unprofessionally in that he had charged an excessive fee, neglected
his client’s interests, and failed to appropriately account for his client’s money and,
thus, that he had violated the cited Disciplinary Rules. Moreover, because
respondent repeatedly failed to respond to relator’s inquiries during the
investigation of this misconduct, the board found him in violation of Gov.Bar R.
V(4)(G).
{¶6} We concur in the board’s findings of misconduct and its
recommendation that respondent be indefinitely suspended from the practice of
law. While we historically have imposed the strictest discipline—permanent
disbarment—in misappropriation cases, Cleveland Bar Assn. v. Belock (1998), 82
Ohio St.3d 98, 100, 694 N.E.2d 897, we have also recognized that a lesser penalty
may be in order where sufficient mitigating factors exist and the board recommends
it. Disciplinary Counsel v. Kurtz (1998), 82 Ohio St.3d 55, 693 N.E.2d 1080;
Cleveland Bar Assn. v. Knowlton (1998), 81 Ohio St.3d 76, 689 N.E.2d 538. Here,
in addition to the board’s recommendation, we have before us an honorably
discharged veteran who has been a member of the bar for twenty-seven years and
has never been disciplined for professional misconduct before. Respondent has
been active his entire life in the Open Door Missionary Baptist Church. His pastor
and several professional acquaintances, including past and present members of the
judiciary, submitted letters or gave testimony to assure us that respondent was
dedicated and trustworthy. The probate court thought that some of respondent’s
efforts constituted legitimate professional services.
{¶7} Respondent’s conduct toward his defenseless client is most certainly
egregious. But the board recommended against permanent disbarment, and we can
see some justification for leniency. We therefore order that respondent be
suspended from the practice of law in Ohio for an indefinite period. Costs are taxed
to respondent.
Judgment accordingly.
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MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY and LUNDBERG
STRATTON, JJ., concur.
PFEIFER and COOK, JJ., dissent.
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COOK, J., dissenting.
{¶8} I decline to follow the board’s recommendation and would instead
disbar Harris.
{¶9} The majority’s characterization of the matter before this court—“We
must decide in this case whether an attorney who converted money entrusted to him
by an institutionalized client should be indefinitely suspended from the practice of
law in Ohio”—suggests an incorrect analytic approach that necessitates comment
at the outset. The court’s analysis should not begin with whether an indefinite
suspension is warranted. We have continually stated that when the
misappropriation of client funds is among an attorney’s acts of misconduct, the
court begins with the presumptive sanction of disbarment. Cleveland Bar Assn. v.
Glatki (2000), 88 Ohio St.3d 381, 384, 726 N.E.2d 993; Disciplinary Counsel v.
Wise (1999), 85 Ohio St.3d 169, 171, 707 N.E.2d 852; Disciplinary Counsel v.
Connaughton (1996), 75 Ohio St.3d 644, 645, 665 N.E.2d 675. Thus, precedent
dictates that the threshold question must be whether there is any reason why we
should not disbar Harris.
{¶10} The majority acknowledges our precedent calling for disbarment, but
then proceeds to find that sufficient mitigating circumstances exist to impose a
lesser sanction. I agree that a lack of prior discipline constitutes some mitigation.
See Section 10(B)(2)(a) of the Rules and Regulations Governing Procedure on
Complaints and Hearings Before the Board of Commissioners on Grievances and
Discipline. I also accord some weight to Harris’s character references. See Section
10(B)(2)(e). But I find his claim to other mitigating circumstances unpersuasive.
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{¶11} The recommended sanction of the board—an indefinite suspension—
is not a mitigating factor. And Harris’s having been in practice for 27 years is not
mitigating when his dishonesty in this case spanned more than one-third of that
career.
{¶12} The majority “infers” from the foregoing claimed mitigation
evidence, as well as from Harris’s military service and his church activities, that
Harris’s misconduct arose from his misguided perception of his role and
responsibility in the legal profession. I cannot agree. The panel taking the evidence
characterized Harris’s misconduct as “go[ing] to the very nature of the attorney-
client relationship.” It explained that “[a]ttorneys are charged with the duty of
helping those in need of counsel and are further charged with doing justice. [Harris]
has shown himself to not be of the fiber to perform these most basic tasks essential
to being an attorney. One who cannot be counted on to protect the interests of a
special needs client, or one who misappropriates the funds of any client, is unfit to
practice law in the State of Ohio.” I agree with the panel’s assessment in these
circumstances. If, as the majority “infers,” Harris truly cannot understand this
fundamental aspect of the practice of law after nearly three decades as a
practitioner, then reinstatement seems improbable.
{¶13} This court has held that in most instances, “[t]he continuing public
confidence in the judicial system and the bar requires that the strictest discipline be
imposed in misappropriation cases.” Cleveland Bar Assn. v. Belock (1998), 82
Ohio St.3d 98, 100, 694 N.E.2d 897. Harris stole from a client for many years. In
an effort to cover up his actions, he submitted an incredible, excessive fee statement
to the probate court. When confronted with a disciplinary inquiry, he repeatedly
failed to cooperate. And he has failed to accept responsibility for the nature and
severity of his actions. Harris has thus demonstrated contempt for the ethical
considerations of this profession, for the courts, and for the disciplinary process.
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{¶14} Because his mitigating circumstances do not offset the more
compelling interest of protecting the public, this court should disbar Harris from
the practice of law.
PFEIFER, J., concurs in the foregoing dissenting opinion.
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Arter & Hadden, L.L.P., Robert J. Hanna and Nicholas C. York, for relator.
Wesley A. Dumas, Sr., for respondent.
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