Office of Disciplinary Counsel v. Smith

[Cite as Disciplinary Counsel v. Smith, 101 Ohio St.3d 27, 2003-Ohio-6623.]

OFFICE OF DISCIPLINARY COUNSEL v. SMITH.

[Cite as Disciplinary Counsel v. Smith, 101 Ohio St.3d 27, 2003-Ohio-6623.]

Attorneys at law — Misconduct — Indefinite suspension — Apparent conversion

and neglect in administering the estate of an adjudicated incompetent —

Failing to cooperate in disciplinary investigation.

(No. 2003-1117 — Submitted August 26, 2003 — Decided December 31, 2003.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline

of the Supreme Court, No. 02-93.

__________________

Per Curiam.

{¶1} Respondent, Stanford Smith of Cleveland, Ohio, Attorney

Registration No. 0030754, was admitted to the practice of law in 1958. On

December 9, 2002, relator, Disciplinary Counsel, charged respondent in a two-count

complaint with violations of the Code of Professional Responsibility. Respondent

was served with the complaint but did not answer, and relator moved for default

pursuant to Gov.Bar R. V(6)(F). A master commissioner appointed by the Board of

Commissioners on Grievances and Discipline heard the cause and made findings of

fact, conclusions of law, and a recommendation.

{¶2} As to the first count, the master commissioner found that respondent

was appointed in March 1987 as guardian of an adjudicated incompetent and his

estate. In November 2000, after the death of the ward, the Cuyahoga County Court of

Common Pleas, Probate Division, removed respondent from his fiduciary

responsibility for the estate because he had failed to file a required account. The

probate court appointed a successor fiduciary.

{¶3} The successor fiduciary filed a motion for surcharge upon discovering

that documents filed in the estate did not completely account for $25,231 of the

assets. The successor determined from bank records that approximately $15,130 of

SUPREME COURT OF OHIO

this amount appeared to have been spent appropriately for the ward’s benefit. A

balance of $10,100.68, however, was not explained.

{¶4} The probate court heard the surcharge motion in December 2001, but

respondent, who had notice of the proceeding, did not appear. In January 2002, the

court found respondent liable to the successor fiduciary in the amount of $10,000 in

unaccounted-for estate assets and for $2,531.35 in fees and expenses for the

successor’s services. The court specifically found that the successor’s services had

been necessary because of respondent’s willful and wanton neglect and his violation

of state law. The court ordered respondent to remit this payment within 14 days of

the judgment; however, respondent did not comply.

{¶5} The master commissioner found that by his apparent conversion and

neglect in administering the estate, respondent had violated DR 1-102(A)(4) (conduct

involving fraud, deceit, dishonesty, or misrepresentation), 1-102(A)(6) (conduct

adversely reflecting on an attorney’s fitness to practice law), 6-101(A)(3) (neglect of

an entrusted legal matter), 7-101(A)(2) (failure to carry out a contract of professional

employment), and 9-102(B)(3) (failure to appropriately account for a client’s funds or

other property).

{¶6} As to the second count, the master commissioner found respondent in

violation of Gov.Bar R. V(4)(G) (failure to cooperate in an investigation of

misconduct) because respondent received but refused to respond to relator’s repeated

requests for information about the administration of his former client’s estate. He

also ignored subpoenas for his appearance at two depositions.

{¶7} In recommending a sanction for this misconduct, the master

commissioner reviewed the mitigating and aggravating considerations listed in

Section 10 of the Rules and Regulations Governing Procedure on Complaints and

Hearings Before the Board of Commissioners on Grievances and Discipline. As to

mitigation, the master commissioner observed that respondent had no history of

professional misconduct. However, as aggravating features, the master commissioner

noted respondent’s lack of cooperation, the particular vulnerability of his former

2

January Term, 2003

client, and his failure to make any restitution. The master commissioner also noted

that respondent had not registered as an attorney for the current biennium in

accordance with Gov.Bar R. VI.

{¶8} The master commissioner rejected the sanction suggested by relator—

permanent disbarment—because of respondent’s long and formerly unblemished

legal career. The master commissioner instead recommended that respondent be

suspended indefinitely from the practice of law. The board adopted the master

commissioner’s findings of misconduct and recommendation.

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

board. Absent any mitigating factors, disbarment is the appropriate sanction for an

attorney’s misappropriation of client funds. Cleveland Bar Assn. v. Belock (1998), 82

Ohio St.3d 98, 100, 694 N.E.2d 897. Here, however, we accord weight to the board’s

recommendation of the lesser sanction of indefinite suspension based on the

mitigating evidence that respondent has been licensed to practice for approximately

45 years without any previous ethical infraction. See Columbus Bar Assn. v.

Hamilton (2000), 88 Ohio St.3d 330, 725 N.E.2d 1116 (sufficient mitigating factors

warranted the indefinite suspension, rather than disbarment, of an attorney who

admitted having converted estate funds).

{¶10} Accordingly, respondent is hereby suspended indefinitely from the

practice of law in Ohio. Costs are taxed to respondent.

Judgment accordingly.

MOYER, C.J., RESNICK, F.E. SWEENEY, PFEIFER, LUNDBERG STRATTON,

O’CONNOR and O’DONNELL, JJ., concur.

__________________

Jonathan E. Coughlan, Disciplinary Counsel, and Kevin L. Williams,

Assistant Disciplinary Counsel, for relator.

__________________

3