Disciplinary Counsel v. Jancura

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

Disciplinary Counsel v. Jancura, Slip Opinion No. 2022-Ohio-3189.]

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. 2022-OHIO-3189

DISCIPLINARY COUNSEL v. JANCURA.

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

may be cited as Disciplinary Counsel v. Jancura, Slip Opinion No.

2022-Ohio-3189.]

Attorneys—Misconduct—Violations of the Rules of Professional Conduct—Two-

year suspension with the second year stayed on conditions.

(No. 2022-0367—Submitted May 24, 2022—Decided September 14, 2022.)

ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme

Court, No. 2021-024.

______________

Per Curiam.

{¶ 1} Respondent, Diana Jancura, of Sheffield Lake, Ohio, Attorney

Registration No. 0069490, was admitted to the practice of law in Ohio in 1998. In

a September 2021 complaint, relator, disciplinary counsel, alleged that Jancura had

committed multiple ethical violations by fraudulently misappropriating funds from

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the probate estate of a family member and engaging in a pattern of deceit and

dishonesty to conceal her theft.

{¶ 2} The parties submitted stipulations of fact, misconduct, and

aggravating and mitigating factors, but they did not agree on an appropriate

sanction. The matter proceeded to a hearing before a three-member panel of the

Board of Professional Conduct. The panel issued a report finding that Jancura had

committed the charged misconduct and recommending that she be suspended from

the practice of law for two years with one year stayed. The board adopted that

report and recommendation and specified two conditions for the stay. No

objections have been filed.

{¶ 3} For the reasons that follow, we adopt the board’s findings of

misconduct and recommended sanction.

Misconduct

{¶ 4} In 2003, Jancura created a revocable trust for her cousin, Christopher

Kovach Sr., and his wife, Angela Ceo. Two years later, Kovach died. In 2016,

Jancura revised the trust at Ceo’s behest to designate Ceo’s mother, Candice Frantz,

as a successor trustee. She also revised Ceo’s will to name Frantz as the guardian

of Ceo’s minor children, L.K. and C.K. Ceo died in October 2016, and Frantz

retained Jancura to represent her in her capacity as trustee of the Ceo trust and

guardian of Ceo’s children.

{¶ 5} In December 2018, Jancura’s maternal aunt, Patricia DiRenzo (who

was also the paternal grandmother of Ceo’s children), died. Pursuant to DiRenzo’s

will, L.K. and C.K. were the sole heirs of her estate.

{¶ 6} The Cuyahoga County Probate Court granted Jancura’s application to

administer DiRenzo’s estate. Based on the value of the estate, Jancura would have

been entitled to approximately $6,000 in fiduciary fees for administering the estate

as well as another $6,000 in attorney fees. See R.C. 2113.35; Loc.R. 71(D) of the

Court of Common Pleas of Cuyahoga County, Probate Division. However, a local

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rule provides that when the same person serves as the administrator and attorney

for the estate (or when the attorney for the estate is affiliated with the

administrator’s law firm), the attorney fees are rebuttably presumed to be one-half

of the amount allowed by the standard fee schedule. Loc.R. 71.1(H) of the Court

of Common Pleas of Cuyahoga County, Probate Division. Thus, Jancura’s total

compensation for handling the estate was limited to approximately $9,000 unless

she filed a motion for extraordinary fees with supporting documentation.

{¶ 7} In May 2019, Jancura made a distribution from the DiRenzo estate to

L.K. and C.K. and distributed $10,000 to her firm for legal fees related to her

representation of Frantz as the guardian of the children and trustee of the Ceo trust.

She later withdrew an additional $6,000 in fiduciary fees from the estate account.

{¶ 8} That October, Jancura issued a $5,200 check, payable to “cash” from

the estate account. She cashed the check and used the proceeds to purchase a

cashier’s check payable to James Kepler. She and her husband then used the

cashier’s check to purchase a 2003 BMW from Kepler. When Jancura cashed the

estate check, she was entitled to only about $3,000 in scheduled attorney fees from

the DiRenzo estate. But in November, she withdrew an additional $6,000 in

attorney fees from the estate account, bringing her total withdrawals for her own

fees to $27,200.

{¶ 9} Jancura’s husband, who was also her law partner, entered an

appearance in the DiRenzo estate case in March 2020. In April, Jancura filed a

motion seeking payment of $3,000 in scheduled attorney fees plus $3,000 in

extraordinary fees for herself and her husband. That motion did not disclose that

Jancura had already withdrawn the extraordinary fees plus $5,200 to purchase a car

for her personal use. Along with the motion for attorney fees, Jancura filed a partial

fiduciary account that included a false entry to conceal her $5,200

misappropriation. That entry stated that on October 1, 2019, Jancura paid “James

Kebler [sic]” $5,200 for work performed for the decedent prior to her death.

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Jancura has since admitted that “James Kebler” was really James Kepler—the

person who sold her the BMW—and that he had not performed any work for

DiRenzo or the estate.

{¶ 10} Upon receipt of the partial accounting from Jancura, Frantz retained

attorney James Arnold to review the estate’s record. Arnold requested an

accounting of numerous expenses listed in Jancura’s fiduciary account, including

the $5,200 payment to Kepler. In response, Jancura drafted a letter to Arnold

explaining as follows:

Written claim filed against the estate from James Kepler for

service provided to Patricia DiRenzo prior to her passing. Diana

Jancura discussed the services provided with Mr. Kepler and

validated the authenticity of them prior to payment of the claim.

Also included is a copy of the cashier’s check paid to Mr. Kepler

and a copy of the cancelled estate check used to purchase the

cashier’s check issued to Mr. Kepler.

Although Jancura knew that the content of the letter was false, she represented to

her husband that it was true and had him sign the letter as the estate’s attorney.1

{¶ 11} In response to a request from Arnold for additional information,

Jancura provided two fabricated receipts. The first receipt was for $5,200 and

stated that Kepler performed $5,000 in labor and furnished $200 in materials for

DiRenzo’s home from May to October 2018. On that receipt, Jancura handwrote,

“Paid 10/1 #165 for cashier’s check.” The other receipt was identical in all respects

1. Relator filed a separate complaint against Jancura’s husband, Scott Jancura, for misconduct

related to this case. On the board’s recommendation, we accepted the parties’ consent-to-discipline

agreement and imposed a conditionally stayed six-month suspension for Scott’s admitted

misconduct. See Disciplinary Counsel v. Jancura, 166 Ohio St.3d 1511, 2022-Ohio-1687, 187

N.E.3d 566.

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except that it was for $2,200, the $5,000 was replaced with $2,000, and Jancura had

forged the signature “J Kepler” above the handwritten note.

{¶ 12} In August 2020, Frantz filed a motion seeking Jancura’s removal as

administrator of the estate, the denial of Jancura’s pending motion for fees, and an

order refunding fees that had previously been paid for administration of the estate.

Among other exceptions to the accounting, Frantz alleged that Jancura had

misappropriated the $5,200 she paid to Kepler and had committed fraud in an

attempt to conceal her conduct. Shortly thereafter, Jancura returned the $5,200 to

the estate account and filed the final fiduciary account, which included the entry

“Return of Kepler claim” for $5,200.

{¶ 13} In October 2020, Arnold deposed Jancura. In her testimony, Jancura

admitted that she had fabricated the receipts for services purportedly provided to

the estate by Kepler. She claimed that the $5,200 payment was part of her attorney

or fiduciary fee, though she had already collected $6,000 in fiduciary fees and the

$5,200 exceeded the $3,000 in attorney fees that she would have been entitled to

receive without filing a motion for extraordinary fees. Jancura further

acknowledged that just one month after withdrawing the $5,200, she improperly

withdrew another $6,000 in fees.

{¶ 14} The board did not find Jancura’s testimony about the forged receipts

to be particularly credible. Its report states that at her disciplinary hearing, she

“seemed to land on the theory” that she had created the $2,200 receipt as a mistake

and later “correct[ed]” it with the $5,200 receipt. However, the board found that it

could not be a coincidence that Jancura had mistakenly drafted one of the fraudulent

receipts for $2,200—the same amount that her husband had falsely reported to the

Bureau of Motor Vehicles as the sale price for the BMW that they had purchased

from Kepler.

{¶ 15} Although Jancura ultimately withdrew as the administrator of the

DiRenzo estate and withdrew her motion for attorney fees, her fraud and poor

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accounting practices forced Frantz to take additional legal action to oppose her final

account. Jancura and Frantz eventually settled the case. Jancura repaid the $5,200

that she had misappropriated from the estate, the $12,000 in fees related to the

administration of the estate, and the $10,000 in fees that she had withdrawn for

legal work she had performed relative to the guardianship and trust.

{¶ 16} Jancura stipulated and the board found that her conduct violated

Prof.Cond.R. 3.3(a)(1) (prohibiting a lawyer from knowingly making a false

statement of fact or law to a tribunal), 3.4(b) (prohibiting a lawyer from falsifying

evidence), 4.1(a) (prohibiting a lawyer from knowingly making a false statement

of material fact or law to a third person), and 8.4(a) (prohibiting a lawyer from

knowingly inducing another lawyer to violate or attempt to violate the Ohio Rules

of Professional Conduct),2 8.4(c) (prohibiting a lawyer from engaging in conduct

involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (prohibiting a

lawyer from engaging in conduct that is prejudicial to the administration of justice).

We adopt these findings of misconduct.

Sanction

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

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

aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions

imposed in similar cases.

{¶ 18} The parties stipulated and the board found that four aggravating

factors are present here: Jancura acted with a dishonest or selfish motive, engaged

in a pattern of misconduct, committed multiple offenses, and harmed vulnerable

victims. See Gov.Bar R. V(13)(B)(2), (3), (4), and (8).

2. Relator’s complaint, the parties’ stipulations, and the board’s report mistakenly cited

Prof.Cond.R. 8.1(a) but included in that citation the summary of the conduct prohibited by

Prof.Cond.R. 8.4(a).

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{¶ 19} As for mitigating factors, the parties stipulated and the board found

that Jancura has no prior discipline, had made a timely, good-faith effort to make

restitution (albeit after Frantz filed a motion to remove her as the administrator of

the DiRenzo estate), and had made full disclosure to the board and demonstrated a

cooperative attitude toward the disciplinary proceedings. See Gov.Bar R.

V(13)(C)(1), (3), and (4). The parties also stipulated that Jancura had submitted

evidence of her good character or reputation in the form of 14 character letters

written by colleagues, clients, and friends. See Gov.Bar R. V(13)(C)(5). The board

afforded those letters some mitigating effect, although it was troubled by the

authors’ references to Jancura’s “one instance” of misconduct, her “poor judgment

call,” her “mistakes,” and her “questionable decisions”—none of which accurately

represented the full extent of Jancura’s misconduct.

{¶ 20} At her disciplinary hearing, Jancura testified that she suffers from

symptoms of depression and had begun meeting with a therapist; however, it does

not appear that Jancura has been diagnosed with any mental disorder. Although

Jancura entered into a two-year contract with the Ohio Lawyers Assistance Program

(“OLAP”), her counselor reported that Jancura “did not want therapeutic treatment

for a mental health diagnosis but desired to attend therapy to better herself and

improve her perspective.”

{¶ 21} The board’s report states that Jancura acknowledged the

wrongfulness of and expressed remorse for her misconduct, but it also notes that

she did not appear to accept full responsibility for her actions. Instead, Jancura

suggested that several factors had contributed to her misconduct, including her poor

relationship with Frantz (the children’s guardian), the alleged hostility of Frantz’s

counsel, COVID-19 lockdowns, unresolved childhood trauma, and “demonic

thoughts.” The board rejected those claims. For example, the board’s report states

that Jancura’s difficult relationship with Frantz did not excuse her decisions to

falsify a court entry, forge two receipts, and lie to her law partner/husband.

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Moreover, it found that her effort to justify her misconduct on that ground did not

bode well for any future clients whom, like Frantz, Jancura finds to be difficult,

dismissive, or ungrateful. Similarly, the board rejected Jancura’s claims that

Frantz’s counsel was unreasonably hostile, noting that counsel was right to question

Jancura’s accounting because she had already engaged in wrongdoing. The board

likewise rejected Jancura’s claims that “[n]one of this would have happened but for

the COVID” because the lockdown occurred five months after she misappropriated

estate funds and just one month before she submitted her fraudulent partial

fiduciary account. Furthermore, the board’s report notes that Jancura testified that

it was the litigation following her misconduct that had triggered memories of a

childhood trauma rather than the trauma triggering the misconduct.

{¶ 22} In determining the appropriate sanction for Jancura’s misconduct,

the board considered decisions imposing sanctions ranging from disbarment to fully

stayed term suspensions for misconduct involving varying degrees of

misappropriation. See, e.g., Disciplinary Counsel v. Hunter, 106 Ohio St.3d 418,

2005-Ohio-5411, 835 N.E.2d 707 (disbarring attorney who, over three years,

embezzled nearly $300,000 from the estates of two people for whom she had served

as a court-appointed guardian); Disciplinary Counsel v. Gorby, 142 Ohio St.3d 35,

2015-Ohio-476, 27 N.E.3d 510 (imposing a conditionally stayed one-year

suspension on an attorney who misappropriated funds from family members who

were also her clients and with whom she had a very contentious relationship).

{¶ 23} The board found that the facts of this case most closely align with

those of several cases in which we imposed partially stayed term suspensions for

the misappropriation of client funds coupled with attempts to conceal that

misconduct. For example, in Disciplinary Counsel v. Gildee, 134 Ohio St.3d 374,

2012-Ohio-5641, 982 N.E.2d 704, the attorney misappropriated client funds,

falsified a document in an attempt to justify her misappropriation, and made a false

representation to the relator in the subsequent disciplinary action regarding the

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status of a payment she had promised to make to the client. In contrast to Jancura,

Gildee had not made restitution at the time of her disciplinary hearing, due to her

dire financial condition. We found that Gildee’s multiple acts of dishonesty

required an actual suspension from the practice of law and that the mitigating

evidence—including the absence of a disciplinary record, full and free disclosure

to the board, positive character evidence, and genuine remorse—weighed in favor

of a two-year suspension with one year conditionally stayed. Id. at ¶ 17-18.

{¶ 24} In Disciplinary Counsel v. Gold, 154 Ohio St.3d 106, 2018-Ohio-

3238, 111 N.E.3d 1158, we imposed the same sanction on an attorney who had

misappropriated client funds in violation of a court order requiring him to hold

those funds in trust and then had engaged in a pattern of dishonesty,

misrepresentation, and frivolous court filings to conceal that misappropriation.

Although Gold presented only some of the aggravating and mitigating factors that

are present in this case, he also established the existence of several mitigating

disorders.

{¶ 25} On the authority of Gildee and Gold, the board recommends that we

suspend Jancura from the practice of law for two years with one year stayed on the

conditions that she engage in no further misconduct and pay the costs of these

proceedings. The board further recommends that as an additional condition of

reinstatement, Jancura be required to submit proof of compliance with her

September 21, 2021 OLAP contract and any recommended extension thereof.

{¶ 26} Having independently reviewed the relevant factors, we agree that

the sanction recommended by the board is appropriate.

Conclusion

{¶ 27} Accordingly, Diana Jancura is suspended from the practice of law in

Ohio for two years with the second year stayed on the conditions that she commit

no further misconduct and pay the costs of these proceedings. In addition to the

requirements for reinstatement set forth in Gov.Bar R. V(24), Jancura shall be

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required to submit proof of compliance with her September 21, 2021 OLAP

contract and any extension recommended by OLAP. If Jancura fails to comply with

any condition of the stay, the stay will be lifted and she will serve the full two-year

suspension. Costs are taxed to Jancura.

Judgment accordingly.

O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, DONNELLY, STEWART,

and BRUNNER, JJ., concur.

_________________

Joseph M. Caligiuri, Disciplinary Counsel, and Matthew A. Kanai and

Karen H. Osmond, Assistant Disciplinary Counsel, for relator.

Diana Jancura, pro se.

_________________

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