Opinion

Disciplinary Counsel v. Brown

  • 74 Ohio St. 3d 594
  • 1996 Ohio 123
Court
Ohio Supreme Court
Filed
Feb 28, 1996
Status
Published
Cited by
1 cases
Authority
More cited than 47.9%

The opinion

[This opinion has been published in Ohio Official Reports at 74 Ohio St.3d 594.]

OFFICE OF DISCIPLINARY COUNSEL V. BROWN.

[Cite as Disciplinary Counsel v. Brown, 1996-Ohio-123.]

Attorneys at law—Misconduct—Indefinite suspension with petition for

reinstatement conditioned upon complete restitution—Conviction of

grand theft and theft.

(No. 95-2124—Submitted December 6, 1995—Decided February 28, 1996.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 93-61.

__________________

{¶ 1} In a complaint filed October 18, 1993, relator, Office of Disciplinary

Counsel, charged respondent, Perry Lowell Brown of Eaton, Ohio, Attorney

Registration No. 0037877, with one count of professional misconduct. A panel of

the Board of Commissioners on Grievances and Discipline of the Supreme Court

(“board”) heard the matter on June 12, 1995.

{¶ 2} Although respondent did not attend the panel hearing, the parties

stipulated to his violation of DR 1-102(A)(3) (illegal conduct involving moral

turpitude), 1-102(A)(4) (conduct involving dishonesty, fraud, deceit, or

misrepresentation), 1-102(A)(5) (conduct prejudicial to the administration of

justice), 7-102(A) (failure to represent client within bounds of the law), and 9-102

(failure to preserve client’s funds and property). Respondent stipulated to this

misconduct because he had converted $9,748.88 from the Estate of Emory W.

McIntyre in 1992 while employed by Eaton National Bank and Trust Co. (the

“bank”), the executor of the estate. Respondent had been entrusted with the

executor’s duties and responsibilities while employed as a trust officer and in-house

legal counsel for the bank. He converted the funds by writing eight checks to

himself and depositing each in his personal bank account. Respondent’s thefts were

SUPREME COURT OF OHIO

discovered in 1993, and he subsequently returned $6,365.55 to the bank, as a result

of cashing in his pension and IRA accounts; the remaining balance of $3,383.33

apparently was also repaid, but from other sources.

{¶ 3} The parties also stipulated to respondent’s violation of DR 1-

102(A)(3), (4) and (6) (conduct adversely reflecting on fitness to practice law)

based on the following stipulated facts:

“[1.] On February 8, 1994, [r]espondent *** was indicted by a Preble

County Grand Jury in a six[-]count Indictment:

“COUNT I: Grand Theft (felony of the third degree), in violation of [R.C.]

2913.02(A)(2), for the taking of monies from the Preble County 4-H Committee in

the sum of $ 6,158.61 between March 25, 1992 through June 2, 1993[.]

“COUNT II: Attempted Theft ([m]isdemeanor of the first degree), [R.C.]

2923.02 (A), for the attempt of the taking of monies in the sum of $ 1,150.00[.]

“COUNT III: Theft (felony of the fourth degree), [R.C.] 2913.02(A)(2), for

the taking of monies from the St. Clair Foundation in the sum of $850.00[.]

“COUNT IV: Theft (felony of the fourth degree), [R.C.] 2913.02(A)(2),

for the taking of monies from the Humane Society of Preble County, Inc. in the

sum of $ 3,500.00[.]

“COUNT V: Theft (felony of the fourth degree), [R.C.] 2913.02(A)(2), for

the taking of monies from the KI-OP Account (Kiwanis Optimists Club) in the sum

of $ 623.83[.]

“COUNT VI: Grand Theft (felony of the third degree), [R.C.] 2913.02 (A)

(2), for the taking of monies from the Estate of Emory W. McIntyre and/or Eaton

National Bank and Trust Co. in the sum of $9,748.88[.]

“***

“[2.] Pursuant to negotiations, *** [r]espondent *** [pled guilty] to

Counts I and III [sic, VI] of the Indictment, both being felonies of the third degree.

Upon entering said pleas, the [s]tate of Ohio dismissed the remaining counts

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January Term, 1996

(Counts II, III, IV and V). As part of his plea, [r]espondent agreed to pay restitution

on all six counts.

“[3.] On July 8, 1994, [r]espondent was sentenced *** to two *** years[’]

incarceration on both counts (Count[s] I and VI), with said sentences to run and be

served concurrently. The sentence was duly suspended and [r]espondent ordered

to be placed on probation for five *** years upon certain terms, including:

cooperation with Disciplinary Counsel; restitution in the sum of *** [$11,700.55];

and two hundred and fifty hours *** [of] community service.”1

{¶ 4} The panel found that respondent had violated the Disciplinary Rules,

as stipulated. In recommending a sanction for this misconduct, the panel

considered (1) the parties’ joint suggestion that respondent receive an indefinite

suspension, (2) that respondent had repaid the stolen funds to all of his victims,

except the Eaton National Bank and Trust Co., to which he still owed $3,585, with

part or all of this amount, the record being unclear, reflecting the bank’s costs in

investigating the thefts, and (3) that he had cooperated fully with police officials

and prosecution authorities. The panel recommended that respondent receive an

indefinite suspension from the practice of law and that complete restitution, not

only to Eaton National Bank and Trust Co., but to respondent’s grandparents from

whom he had borrowed funds to repay his victims, be a condition for his

reapplication to the practice of law.

{¶ 5} The board adopted the panel’s report, including its findings of fact,

conclusions of law, and recommended sanction.

__________________

1. On November 3, 1994, in accordance with Gov.Bar R. V(5)(A)(3), respondent was suspended

indefinitely from the practice of law for his felony convictions. In re Brown (1994), 71 Ohio St.3d

1401, 640 N.E.2d 1146.

3

SUPREME COURT OF OHIO

Geoffrey Stern, Disciplinary Counsel, and Sally Ann Steuk, Assistant

Disciplinary Counsel, for relator.

Perry Lowell Brown, pro se.

__________________

Per Curiam.

{¶ 6} We concur in the findings of misconduct and recommendation of the

board. Respondent, Perry Lowell Brown, is hereby indefinitely suspended from

the practice of law in Ohio, with any petition for reinstatement conditioned upon

complete restitution to the Eaton National Bank and Trust Co. and reimbursement

to respondent’s grandparents for all monies borrowed to make restitution. Costs

taxed to respondent.

Judgment accordingly.

MOYER, C.J., DOUGLAS, WRIGHT and F.E. SWEENEY, JJ., concur.

RESNICK, PFEIFER and COOK, JJ., dissent and would disbar.

__________________

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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