Disciplinary Counsel v. Potter

[Cite as Disciplinary Counsel v. Potter, 126 Ohio St.3d 50, 2010-Ohio-2521.]

DISCIPLINARY COUNSEL v. POTTER.

[Cite as Disciplinary Counsel v. Potter, 126 Ohio St.3d 50, 2010-Ohio-2521.]

Attorneys — Misconduct — Violation of Prof.Cond.R. 8.4(c), but with significant

mitigating factors — One-year license suspension stayed on condition.

(No. 2010-0288 ⎯ Submitted March 31, 2010 ⎯ Decided June 10, 2010.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 09-049.

__________________

Per Curiam.

{¶ 1} Respondent, Albert Loron Potter II of Bowling Green, Ohio,

Attorney Registration No. 0023775, was admitted to the practice of law in Ohio in

1982.

{¶ 2} Relator, Disciplinary Counsel, charged respondent with violating

Prof.Cond.R. 8.4(b) (prohibiting illegal acts that reflect adversely on the lawyer’s

honesty or trustworthiness), 8.4(c) (prohibiting conduct involving dishonesty,

fraud, deceit, or misrepresentation), and 8.4(h) (prohibiting conduct that adversely

reflects on the lawyer’s fitness to practice law). The parties stipulated that the

respondent’s conduct violated Prof.Cond.R. 8.4(c) and 8.4(h), and relator

dismissed the 8.4(b) charge.

{¶ 3} A panel of board members heard the case and, based on the

submitted stipulations and other evidence, issued findings of fact and conclusions

of law. The panel found clear and convincing evidence that respondent violated

the rules as stipulated. The parties submitted a proposed sanction of a one-year

suspension, all conditionally stayed, which the panel also recommended. The

Board of Commissioners on Grievances adopted the panel’s findings of fact,

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conclusions of law, and recommended sanction. We accept the board’s findings

and conclusions, and we adopt the recommended sanction.

Stipulated Misconduct

{¶ 4} The respondent began representing a client in 2003, and the client

granted respondent a power of attorney. A previous attorney-in-fact had depleted

the client’s savings, leaving him no funds for his nursing-home care and medical

needs. The respondent controlled his client’s finances, was responsible for

decisions relating to the client’s medical care, and handled a variety of legal

matters such as pursuing litigation against the former attorney-in-fact and

terminating the client’s family trust. To pay for his client’s medical care,

respondent mortgaged some of the client’s property.

{¶ 5} In 2006, the client died, and respondent was appointed executor of

the estate. Respondent determined it necessary to sell farm property that the

client had owned to satisfy the mortgage that had paid for the client’s care. The

sole beneficiary of the client’s estate agreed that the sale was necessary. A local

appraiser approved by the probate court appraised the property at $183,750, and

the appraisal was included in the inventory and appraisal of the estate also

approved by the probate court.

{¶ 6} Respondent wanted to buy the farm property. Although he initially

mentioned this fact to the beneficiary of his client’s estate, he did not pursue the

possibility of a sale with her. Instead, respondent contacted a friend and asked the

friend to purchase the property in his own name while using funds from

respondent. In August 2007, respondent, as executor for the estate, entered into a

contract to sell the farm property to the friend and the friend’s wife for the

appraised value. The cashier’s check the friend used to purchase the property was

drawn from respondent’s personal funds. The check did not include a remitter.

At the time of the transaction, respondent did not disclose his involvement in the

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purchase of the property to the beneficiary of the estate, the probate court, or the

closing agent.

{¶ 7} In May 2008, respondent self-reported his misconduct to relator.

Respondent cooperated with the investigation, met with the beneficiary of the

estate to disclose the misconduct, and amended certain filings in the probate court

to reflect his purchase of the property. Respondent continued to serve as executor

of the estate until it was closed in August 2009, and no actions have been filed in

probate court complaining of the real estate transaction. Respondent agreed to

waive extraordinary legal fees, totaling $90,969.47, owed him by the estate. It

appears that no one lost money due to the respondent’s misconduct.

Sanction

{¶ 8} When imposing sanctions for attorney misconduct, we consider all

relevant factors, including the ethical duties that the lawyer violated and the

sanctions imposed in similar cases. Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio

St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶ 16. In making a final

determination, we also weigh evidence of the aggravating and mitigating factors

listed in Section 10(B) of the Rules and Regulations Governing Procedure on

Complaints and Hearings Before the Board of Commissioners on Grievances and

Discipline (“BCGD Proc.Reg.”). Disciplinary Counsel v. Broeren, 115 Ohio

St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21. Because each disciplinary

case is unique, we are not limited to the factors specified in the rule but may take

into account “all relevant factors” in determining what sanction to impose.

BCGD Proc.Reg. 10(B).

{¶ 9} The board found that factors mitigating respondent’s conduct

included his lack of a prior disciplinary record, BCGD Proc.Reg. 10(B)(2)(a), his

effort to rectify the consequences of his misconduct, 10(B)(2)(c), his full

cooperation in the investigation and his self-reporting to Disciplinary Counsel,

10(B)(2)(d), and his otherwise good character and reputation, 10(B)(2)(e). The

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board found that the lone aggravating factor in relation to respondent’s conduct

was that he had acted with a dishonest or selfish motive, BCGD Proc.Reg.

10(B)(1)(b).

{¶ 10} A violation of Prof.Cond.R. 8.4(c) will typically result in an actual

suspension from the practice of law unless “significant mitigating factors that

warrant a departure” from that principle are present. Disciplinary Counsel v.

Rohrer, 124 Ohio St.3d 65, 2009-Ohio-5930, 919 N.E.2d 180, ¶ 45. We agree

with the board and the parties that this case is one in which significant mitigating

factors are present, and those factors lead us to conclude that respondent is

unlikely to commit future misconduct. See Disciplinary Counsel v. Niermeyer,

119 Ohio St.3d 99, 2008-Ohio-3824, 892 N.E.2d 434, ¶ 13.

{¶ 11} Respondent is therefore suspended from the practice of law in

Ohio for one year; however, the suspension is stayed on the condition that he

commit no further misconduct during the stayed suspension period. If respondent

violates this condition, the stay will be lifted, and respondent will serve the one-

year suspension. Costs are taxed to respondent.

Judgment accordingly.

PFEIFER, LUNDBERG STRATTON, O’CONNOR, O’DONNELL, LANZINGER, and

CUPP, JJ., concur.

BROWN, C.J., not participating.

__________________

Jonathan E. Coughlan, Disciplinary Counsel, and Stacy Solochek

Beckman, Assistant Disciplinary Counsel, for relator.

Kegler, Brown, Hill & Ritter Co., L.P.A., and Geoffrey Stern, for

respondent.

______________________

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