Warren County Bar Association v. Clifton

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as

Warren Cty. Bar Assn. v. Clifton, Slip Opinion No. 2016-Ohio-5587.]

NOTICE

This slip opinion is subject to formal revision before it is published in an

advance sheet of the Ohio Official Reports. Readers are requested to

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65

South Front Street, Columbus, Ohio 43215, of any typographical or other

formal errors in the opinion, in order that corrections may be made before

the opinion is published.

SLIP OPINION NO. 2016-OHIO-5587

WARREN COUNTY BAR ASSOCIATION v. CLIFTON.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as Warren Cty. Bar Assn. v. Clifton, Slip Opinion No.

2016-Ohio-5587.]

Attorneys—Misconduct—Alteration of client’s will after it was executed but before

it was filed with probate court—Altered provision did not affect any of the

distributive or appointive provisions of the estate-planning documents—

Knowingly making false statement to tribunal—Conduct involving

dishonesty, fraud, deceit, or misrepresentation—Public reprimand.

(No. 2016-0258—Submitted April 5, 2016—Decided September 1, 2016.)

ON CERTIFIED REPORT by the Board of Professional Conduct of the

Supreme Court, No. 2015-040.

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SUPREME COURT OF OHIO

Per Curiam.

{¶ 1} Respondent, Parker Lee Clifton of Crestview Hills, Kentucky,

Attorney Registration No. 0081815, was admitted to the practice of law in Ohio in

2007.

{¶ 2} In a June 12, 2015 complaint, relator, Warren County Bar

Association, charged Clifton with multiple violations of the Rules of Professional

Conduct arising from his alteration of a client’s will after it was executed but before

it was filed with the probate court. Clifton waived a determination of probable

cause by the Board of Professional Conduct. In his answer to relator’s complaint,

he admitted most of the factual allegations but denied that his conduct violated the

Rules of Professional Conduct.

{¶ 3} On December 4, 2015, the parties submitted stipulations of fact,

misconduct, and mitigation. Relator withdrew its charges as to four alleged rule

violations, and the parties jointly recommended that Clifton be publicly

reprimanded for his misconduct. After hearing Clifton’s testimony, the panel

issued a report adopting the parties’ stipulations of fact and misconduct and their

recommended sanction. The board adopted the panel’s report in its entirety.

{¶ 4} We adopt the board’s findings of fact and conclusions of law, and we

publicly reprimand Clifton for his misconduct.

Misconduct

{¶ 5} Frank Henry had three children: Franklin Henry, Joanna Davis, and

Steven Henry. In March 2012, Frank and Franklin met with Clifton to discuss the

preparation of estate-planning documents for Frank. After that meeting, Clifton

prepared a trust-intake sheet, but he inadvertently failed to list Joanna as one of

Frank’s children. Clifton then used the trust-intake sheet to prepare a pour-over

will. Consistent with Frank’s wishes, the will designated Franklin as executor of

the estate and directed that Frank’s probate estate be distributed into the Frank E.

Henry Family Preservation Trust. The will—like the intake sheet—failed to

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January Term, 2016

identify Joanna Davis as one of Frank’s children. This omission had no effect on

any of the distributive or appointive provisions of the estate-planning documents

because Frank’s intention was to leave his entire estate to Franklin. The trust

documents designated Franklin as the trust’s sole beneficiary, designated Steven as

a contingent beneficiary, and did not mention Joanna.

{¶ 6} Frank signed the will on April 2, 2012, without noticing the

inadvertent omission of his daughter’s name from the list of his children on the

will’s first page, and no one noticed the omission before Frank passed away on

February 1, 2013. Clifton first noticed the omission of Joanna’s name after Franklin

retained him to probate Frank’s estate in May 2013. Before filing documents with

the probate court, and without consulting with Franklin, Clifton altered the first

page of the will so that it identified all three of Frank Henry’s children. He did not

disclose the alteration to Joanna or Steven.

{¶ 7} On August 12, 2013, Clifton prepared and both he and Franklin signed

an application to probate the will. The altered will was attached to that application

and filed in the Warren County Probate Court. Nothing in the filing disclosed to

the court Clifton’s alteration of the will. Because Joanna possessed a copy of the

original, unaltered will, her counsel questioned Clifton about the will that had been

admitted to probate. Thereafter, Clifton moved the court to withdraw as counsel

for the executor. In his motion to withdraw, he fully disclosed to the probate court

that he had added Joanna Davis’s name to the first page of the will, stated his

reasons for making the alteration, and explained that he sought to withdraw so that

he could provide testimony regarding the alteration. Clifton also self-reported his

misconduct in a January 12, 2015 letter to relator.

{¶ 8} At his disciplinary hearing, in response to a question from his counsel

about his reaction upon discovering that he had made an error in failing to list all

of Frank’s children on the first page of the will, Clifton testified about why he

altered it:

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SUPREME COURT OF OHIO

Obviously frustration. I think embarrassment. I have had another

case—I do some estate administration. I had a case where—it was

probably six months prior to this, maybe longer—but where it was

a similar type of will, not one that I drafted, and it was submitted

with incorrect family information, ended up causing a lot of

confusion with the Court. And I was, I guess, being selfish in trying

to stay ahead of that confusion.

{¶ 9} On these facts, the board found that by altering Frank Henry’s will to

correct a previous error, Clifton violated Prof.Cond.R. 3.3(a)(1) (prohibiting a

lawyer from knowingly making a false statement of fact or law to a tribunal) and

8.4(c) (prohibiting a lawyer from engaging in conduct involving dishonesty, fraud,

deceit, or misrepresentation). We adopt the board’s findings of fact and

misconduct.

Sanction

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

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

relevant aggravating and mitigating factors, and the sanctions imposed in similar

cases. See Gov.Bar R. V(13)(A).

{¶ 11} The board found that there are no aggravating factors present in this

case. See Gov.Bar R. V(13)(B)(1) through (9). As mitigating factors, however, the

board adopted the parties’ stipulations that Clifton has no prior disciplinary record,

made a good-faith effort to rectify the consequences of his misconduct by

disclosing it to the probate court and moving to withdraw as counsel, made full and

free disclosure of his actions to the board, and presented evidence of his good

character and reputation apart from the charged misconduct. See Gov.Bar R.

V(13)(C)(1), (3), (4), and (5). However, the board rejected the parties’ stipulation

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January Term, 2016

that Clifton acted without a selfish motive, given his candid testimony that he did

act with a selfish motive. See Gov.Bar R. V(13)(C)(2).

{¶ 12} In adopting the parties’ recommendation that Clifton be publicly

reprimanded for his misconduct, the board noted that the alteration Clifton made to

Frank Henry’s will was a single misrepresentation to a court and that it did not

change the outcome of the probate matter. The board also found that Clifton’s

cooperation and remorseful attitude during the hearing demonstrated that he

understood the severity of his misconduct and would not repeat it. Having reviewed

the cases cited by the parties, the board found Clifton’s conduct to be most closely

aligned with three cases in which we publicly reprimanded attorneys who

improperly signed other persons’ names to written instruments and then falsely

notarized those instruments before submitting them for recording or for use in court

proceedings. See Columbus Bar Assn. v. Craig, 131 Ohio St.3d 364, 2012-Ohio-

1083, 965 N.E.2d 287 (publicly reprimanding an attorney who forged a client’s

signature on an affidavit of transfer on death, notarized the false signature, then

filed the affidavit with the county recorder’s office); Disciplinary Counsel v.

Mezacapa, 101 Ohio St.3d 156, 2004-Ohio-302, 803 N.E.2d 397 (publicly

reprimanding an attorney who signed a client’s name to an affidavit with the client’s

authorization and notarized the signature as his client’s own before filing it in a

custody proceeding); and Disciplinary Counsel v. Wilson, 142 Ohio St.3d 439,

2014-Ohio-5487, 32 N.E.3d 426 (publicly reprimanding an attorney who signed the

name of her granddaughter’s mother to an affidavit, notarized the document without

noting that she had signed it with the affiant’s authorization, and then filed the

document in a guardianship proceeding).

{¶ 13} Having thoroughly reviewed the record and considered Clifton’s

misconduct, the relative absence of aggravating factors, the applicable mitigating

factors, and the sanctions that we have imposed in comparable cases, we find that

a public reprimand is the appropriate sanction in this case.

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SUPREME COURT OF OHIO

{¶ 14} Accordingly, Parker Lee Clifton is hereby publicly reprimanded for

the misconduct described herein. Costs are taxed to Clifton.

Judgment accordingly.

O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,

FRENCH, and O’NEILL, JJ., concur.

_________________

Kenneth E. Peller, for relator.

Montgomery, Rennie & Jonson Co., L.P.A., George D. Jonson, and Brian

M. Spiess, for respondent.

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