Petition for Writ of Certiorari — Weiner v. Dayton Bar Ass'n

Suprem

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LIBRARY ;

"JME COURT, VU. 8

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1974

No... @4- 920

DAN D. WEINER

Petitioner,

V

DAYTON BAR ASSOCIATION

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF OHIO

DAN D. WEINER

4848 Marshall Road

Kettering, Ohio 45429

Attorney for Petitioner

Kettering Printing Service. 2921 Rushland Dr.. Kettering. Ohio 45419

INDEX

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each echke ChEKMA SERA M bee KN KEKE RS

NN I gc cau kcasdedsucnsacene

Federal Constitutional Provisions

and Canons of Professional

Responsibility Involved .......................

SI EE hci vs ee ch aad b acne sns cease

Reasons for Granting the Writ ................

I favre eeeGs Gees b Gia uacaasihnsesnere

Appendix A—Opinion Below ..................

Appendix B—Judgments Below

(1) Original Judgment......................

(2) Judgment on Petition for Rehearing......

(3) Judgment on Petition for Rehearing

and to Reopen Matter for Presentment

of Newly Discovered Evidence ...........

Appendix C —

(i) Charges Against Petitioner ..............

(2) Interrogatories Filed by Petitioner .......

Se

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Page

AUTHORITIES

Cases

Page

Baltimore & O.S.W.R. Co. v Voigt,

SUP Es ion Coen eae a ais oS ADA Dawa 9

ment w Hanlin, 41 OG. BE BOO nc ccc ccccvcenccsacs 9

Douglas v Alabama, 380 U.S. 415 ................ 8

Ex parte Garland, 4 Wall. 333.................... 6

ee Se Se EE hs eck book eax caemtan nanos 7

a es Ge ee ON Po ke Kah 543 044 Dawe cee 6, 8

Bh 0 De, SD WE NO hoe Fic cee cicsecnce 5, 6. 7,8

Palmer & Crawford v Tingle, 55 O.S. 423 ......... 8

Pointer v Texas, 380 U.S. 400 .... 2... ccc cc cccess 7,8

Randall v Brigham, 7 Wall. 523 .................. 6

Schware v Board of Bar Examiners,

Ee ahaa kde een h ee dba ek eae ka ken es 5,7

Spevack v Klein, 385 U.S. 511................. .5, 6,9

United States Constitution

Fourteenth Amendment ................... 2, 3, 7, 8,9

Statutes

ee ee a IE GI a ss hs oe re ok ba Reese ee 2

Canons of Ethics

EE cs eK oe ee REN ook ee ea keke on ke ees 3, 4, 6

CL ek An RG eA Ge he ko oo ee uke eae 3,4

COU na dco hen vahne ne aW cud acanehuvesauyaee 3, 4,6

IN THE

SUPREME COURT OF THE UNITED ‘STATES

OCTOBER TERM, 1974

DAN D. WEINER

Petitioner

Vv

DAYTON BAR ASSOCIATION

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF OHIO

The petitioner, Dan D. Weiner, respectfully prays

that a writ of certiorari issue to review the judgment and

opinion of the Ohio Supreme Court.

OPINIONS BELOW

The opinion below is reported at 40 Ohio State 2d

7. It is appended hereto as Appendix A.

.

JURISDICTION

The judgment of the court below (Appendix B-1, infra

P. A-10) was entered on October 16th, 1974. A timely peti-

tion for rehearing was denied on November 1, 1974 (Ap-

pendix B-2, infra P. A-12) and a second timely petition for

rehearing and to reopen the matter for presentment of

newly discovered evidence was denied on November 29th,

1974. (Appendix B-3, infra P. A-13.) The jurisdiction of

this court is invoked under the provision of 28 U.S.C. Sec.

1257 (3).

QUESTIONS PRESENTED

Petitioner, who was admitted to the practice of law in

the State of Ohio in 1963, was found guilty of violation of

four provisions of the Code of Professional Responsibility

and was suspended by the Ohio Supreme Court for an

indefinite period from the practice of law in the State of

Ohio. The questions presented are:

1. Whether a state may, consistent with due process

of law required by the Fourteenth Amendment of the

United States Constitution, suspend an attorney from

the practice of law when he has been denied fair notice

of the charges made against him?

2. Is an attorney denied due process of law in a dis-

barment proceeding when the Supreme Court of Ohio

holds him to be guilty of a violation of a canon of ethics

with which he was not originally charged?

3. Is an attorney denied due process of law in a dis-

barment proceeding when the Supreme Court of Ohio

holds him to be guilty of a violation of a canon of ethics

with which the investigating panel ruled not to be in issue

and in accordance with said ruling no evidence was sub-

mitted by petitioner on that charge?

4. Whether a state may, consistent with the equal

protection of contract law to which all citizens are entitled

under the Fourteenth Amendment of the United States

Constitution, suspend an attorney from the practice of law

for failure to file a final decree of divorce where the attor-

ney has a contractural agreement with the client that the

final decree was not to be filed until his fees were paid in

full and the client breaches the contract by not making

payments?

5. Is an attorney denied due process of law in a dis-

barment proceeding when the Ohio Supreme Court finds

him guilty of a violation of a canon of ethics pertaining to

a client who neither appears nor testifies in the proceed-

ings, thereby denying him of his right to confront and

cross-examine the witnesses and accusers against him?

FEDERAL CONSTITUTIONAL PROVISIONS

AND CANONS OF PROFESSIONAL

RESPONSIBILITY INVOLVED

The Fourteenth Amendment to the Constitution of

the United-States reads in part:

“Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein they

reside. No State shall make or enforce anv law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of

life, liberty, or property, without due process of law; nor .

deny to any person within its jurisdiction the equal protec-

tion of the laws.” :

The Canons of Professional Responsibility involved

are:

e Canon DR 2-106 Fees for Legal Services.

e Canon DR 2-110 Withdrawal from Employment.

e Canon DR 9-102 Preserving Identity of Funds and

Property of a Client.

These Canons are set forth in their entirety in Appendix

C-3, infra P. A-17.

bi bw

eS REINS:

STATEMENT OF FACTS

Petitioner is an attorney admitted to the Bar of Ohio

in 1963. He was tried before a panel of three members of

the state disciplinary committee. A report was then issued

to the Ohio Supreme Court by the entire committee and

the Ohio Supreme Court found the petitioner guilty of

certain offenses and suspended him fram the practice of

law in the State of Ohio for an indefinite period of time.

Petitioner filed a motion for rehearing, which was de-

nied. A second motion for a rehearing coupled with one to

reopen the matter to enable him to present newly discov-

ered evidence was also denied.

Petitioner was charged by the Dayton Bar Association

with violation of 6 Canons of Professional Ethics. (See Ap-

pendix C-1, infra P. A-14) To these charges petitioner

submitted interrogatories to be answered \by the Dayton

Bar Association. (See Appendix C-2, infra P. A-15)

These interrogatories were never angwered by the

Dayton Bar Association, nor are there ahy procedural

sanctions whereby petitioner could require that the inter-

rogatories be answered.

The Ohio Supreme Court found petitigner guilty of

DR 9-102 (B) (3) although he was never charged by the

local bar association with a violation of that\canon.

The Ohio Supreme Court also ruled that petitioner

withdrew from representation of a client named Garrett in

violation of Canon DR 2-110 (A) (2) and that he was guilty

of charging Mr. Garrett excessive fees in violation of DR

2-106. Mr. Garrett never made a complaint against

petitioner nor did he testify or even appear against

local bar association. The Ison case involved a divorce

matter. Petitioner proceeded forward with a final hearing

on the divorce with the understanding and agreement

with the client that the decree would not be filed until

petitioner’s fees were paid in full. After the hearing Mrs.

Ison made no additional payments. The court dismissed

the matter and petitioner notified Mrs. Ison by letter of

the dismissal, asking her to contact him if she wanted to

salvage the matter. Hearing no response from Mrs. Ison,

petitioner assumed that she and her husband had recon-

ciled. Meanwhile Mrs. Ison contacted another attorney

who filed her final decree of divorce.

The constitutional issues presented herein were

raised by petitioner in his motion for rehearing after the

Supreme Court made its findings of fact and decision. Be-

cause of the nature of the proceedings, these issues did not

arise until after that decision was rendered.

REASONS FOR GRANTING THE WRIT

This case is of importance to every practicing attorney

in the United States.

The vast majority of disciplinary cases involve a clear

cut violation i.e. commission of a crime involving moral

turpitude. The recent wave of national prominence at-

tached to the attorneys participating in the Watergate

scandals has created additional emphasis making disci-

plinary action a matter of great public concern.

The United States Supreme Court has set up certain

guidelines in the following cases: Schware v Board of Bar

Examiners, 353 U.S. 232, Spevack v Klein, 385 U.S. 511

and In re Ruffalo, 390 U.S. 544.

This case involves an area where these guidelirtes

have not yet reached and will assist in the establishment

of further guidelines firming up the canons of ethics and

adding uniformity in their regulation, interpretation and

enforcement. This case reaches beyond into an area that

needs additional clarification by the United States Su-

preme Court as to the constitutionality of the disciplinary

proceedings for the entire bar of all states.

From the beginning to the end of his case, petitioner

has been denied procedural and substantive due process.

1. Upon receipt of the complaint setting forth six

counts of violations, petitioner filed interrogatories re-

questing that he be advised in detail of the charges

against him (Appendix C-2, infra P. A-15). The Dayton

Bar Association refused to answer them. Furthermore the

Ohio procedure fails to provide any method to enforce or

require that interrogatories be answered.

The Ohio Supreme Court found petitioner guilty of

Canon 9-102 (B) (3), “Failure to maintain complete records

of all funds . . . coming into the possession of a lawyer and

render appropriate accounts to his client regarding them.”

However, petitioner was never charged with a violation of

that section of the canon and was therefore never given an

opportunity to present evidence to rebut that particular

finding.

The Ohio Supreme Court found petitioner guilty of

charging Mr. Garrett excessive fees in violation of DR

2-106. During the disciplinary hearing one panel member

stated, “The question of the amount of the fee isn’t in-

volved.” Another panel member stated “I don’t think it is

the question of the amount of the time or the difficulty of

the case or the amount of the fee... I don’t think we are

concerned with the merits of the case against Mr. Garrett.

I don't think we are concerned with that or the amount of

the fee.” Petitioner presented no testimony on that issue.

Each of the above demonstrates a clear violation of

the principles and guidelines established by the United

States Supreme Court in In re Ruffalo, supra.

“Disbarment, designed to protect the public, is

a punishment or penalty imposed on the lawyer.

Ex parte Garland, 4 Wall. 333, 380; Spevack v

Klein, 385 U.S. 511, 515. He is accordingly entitled

to procedural due process, which includes fair

notice of the charge. See In re Oliver, 333 U.S. 257,

273. It was said in Randall v Brigham, 7 Wall. 523,

540, that when proceedings for disbarment are ‘not

taken for matters occurring in open court, in the

presence of the judges, notice should be given to the

attorney of the charges made and opportunity af-

forded him for explanation and defense.’” In re

Ruffalo, supra, 550.

The United States Supreme Court, also in establish-

ing due process notice requirements, stated in In re Gault,

387 US. 1 at P. 33:

“Notice, to comply with due process require-

ments, must be sufficiently in advance of scheduled

court proceedings so that reasonable opportunity to

prepare will be afforded, and it must ‘set forth the

alleged misconduct with particularity.’ ”

A state cannot exclude a person from the practice of

law or from any other occupation in a manner or for

reasons that contravene the due process clause of the

Fourteenth Amendment. Schware v Board of Bar Ex-

aminers of New Mexico, supra, P. 238.

The absence of fair notice as to the reach of the disci-

plinary hearing, failure of the local bar association to ad-

vise as to the precise nature of the charges, finding

petitioner guilty of a canon with which he was not charged

and of another canon which the panel members ruled not

in issue clearly deprived petitioner of procedural due proc-

ess.

2. The Ohio Supreme Court found petitioner guilty of

violating two separate canons of ethics pertaining to his

representation of client Garrett. Garrett never appeared

nor testified before the disciplinary panel therefore

petitioner was denied an opportunity to cross-examine Mr.

Garrett on these particular charges. Furthermore, Mr.

Garrett never filed or registered a complaint against the

petitioner.

The United States Supreme Court in Pointer v Texas,

380 U.S. 400 at P. 405 stated:

“There are few subjects, perhaps, upon which

this Court and other courts have been more

nearly unanimous than in their expressions of be-

lief that the right of confrontation and cross-

examination is an essential and fundamental re-

quirement for the kind of fair trial which is this

country’s constitutional goal. Indeed, we have ex-

pressly declared that to deprive an accused of the

right to cross-examine the witnesses against him

is a denial of the Fourteenth Amendment’s

guarantee of due process of law.” In re Oliver, 333

U.S. 257, Douglas v Alabama, 380 U.S. 415.

The United States Supreme Court has already deter-

mined that disbarment proceedings are adversary pro-

ceedings of a quasi-criminal nature. In re Ruffalo, supra,

551. Therefore, the standards of Pointer v Texas, supra

are applicable in petitioner’s case.

3. The Ohio Supreme Court found that petitioner’s

failure to file a final decree of divorce constitutca a viola-

tion of the canon of ethics, regardless of the fact that the

client had contractually agreed that the final decree would

not be filed until payment of the fees was made and re-

gardless of the fact that the client breached the contract by

not making any additional payments whatsoever.

The facts involved are simple. Petitioner agreed to go

forward with a final hearing of divorce with the under-

standing that full payment would be made by the client

before the decree would be filed. Client made no payments

after the hearing.

The issues involved are just as simple. Are attorneys

second-rate citizens? Are attorneys to be denied their con-

tractual rights?

The Ohio Supreme Court itself has set up the princi-

ples that should be applicable in this case but which were

denied to petitioner.

“Contracts and compacts have been entered

into between men, tribes and nations during all

time from the earliest dawn of history, and the

right and liberty of contract is one of the inaliena-

ble rights of man, fully secured and protected by

our constitution.” Palmer & Crawford v Tingle, 55

O.S. 423, 441.

The right to contract freely with the expecta-

tion that the contract shall endure according to its

terms is as fundamental to our society as the right

to write and to speak without restraint. Blount v

Smith, 41 0.0. 2d 250, 253.

As the right of private contract is no small part of the

liberty of the citizen, the usual and most important func-

tion of the courts of justice is rather to maintain and en-

force contracts than to enable parties thereto to escape

from their obligation on the pretext of public policy, unless

it clearly appears that they contravene public right or the

public welfare. Baltimore & O.S.W.R. Co. v Voigt, 176

U.S. 498.

Justice Douglas speaking for the United States Su-

preme Court in Spevack v Klein, supra, has already estab-

lished that lawyers also enjoy first-class citizenship.

The ruling of the Ohio Supreme Court clearly denied

petitioner and all other attorneys their right of enforcing

contracts with clients, in fact forcing petitioner and his

fellow lawyers to engage in a condition of involuntary

servitude, all in violation of the equai protection clause

of the Fourteenth Amendment of the United States Con-

stitution.

CONCLUSION

For the reasons set forth above and in view of the fact

that the canons of ethics have been adopted by the major-

ity of States in their present form, there is a need to extend

the guidelines already established by the Court into the

area involved in this case and a writ of certiorari should

issue to review the judgment and opinion of the Ohio Su-

preme Court.

Respectfully submitted

DAN D. WEINER

4848 Marshall Road

Kettering, Ohio

Attorney for Petitioner

APPENDIX

aay

APPENDIX A

DayTON Bar ASSOCIATION v. WEINER.

40 Ohio St. 2d 7.]

Attorneys at law — Misconduct — Acts warranting indefi-

nite suspension.

(No. D.D. 74-6—Decided October 16, 1974.)

On CerTIFIED REPoRT by the Board of Commission-

ers on Grievances and Discipline.

Respondent, Dan D. Weiner. was admitted to the

practice of law in Ohio in 1963, and has. since then, en-

gaged in such practice in the city of Dayton.

This disciplinary matter came before the Board of

Commissioners on Grievances and Discipline upon the

complaint and certificate of the Dayton Bar Association.

alleging certain violations by respondent of the Code of

Professional Responsibility.

The complaint enumerates respondent's alleged will-

ful breach of six specific portions! of the Code: Canon 1.

EC 1-52; Cannon 1, DR 1-102 (A) (5); Canon 2. DR

‘The disciplinary rules and ethical considerations contained in the

Code of Professional Responsibility are commonly denoted DR and EC.

respectively.

7EC 1-5 reads:

“A lawyer should maintain high standards of professional conduct

and should encourage fellow lawyers to do liRewise. He should be tem-

perate and dignified, and he should refrain from all illegal and morally

reprehensible conduct. Because of his position in society, even minor

violations of law by a lawyer may tend to lessen public confidence in the

legal profession. Obedience to law exemplifies respect for law. To

lawyers especially, respect for the law should be more than a

platitude.”

*DR 1-102(A) (5) reads:

“MISCONDUCT.

“(A) A lawyer shall not:

“(5» Engage in conduct that is prejudicial to the administration of

justice.”

say ee

2-106 (A)4; Canon 2, DR 2-110 (A) (2)5; Canon 7, DR 7-106

(C) (6)*; and Canon 9, DR 9-1027.

4DR 2-106 (A) reads:

“FEES FOR LEGAL SERVICES.

“(A) A lawyer shall not enter into an agreement for, charge, or

collect an illegal or clearly excessive fee.”

5 DR 2-110 (A) (2) reads:

“WITHDRAWAL FROM EMPLOYMENT.

' “(A) In general.

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(2) In any event, a lawyer shall not withdraw from employment

until he has taken reasonable steps to avoid foreseeable prejudice to the

rights of his client, including giving due notice to his client, allowing

time for employment of other counsel, delivering to the client all papers

and property to which the client is entitled, and complying with applic-

a able laws and rules.”

4 ®DR 7-106 (C) (6) reads:

“TRIAL CONDUCT.

“xe * *

“(C) In appearing in his professional capacity before a tribunal, a

lawyer shall not:

x * &

(6) Engage in undignified or discourteous conduct which is de-

grading to a tribunal.”

7DR 9-102 reads:

“PRESERVING IDENTITY OF FUNDS AND PROPERTY OF A

CLIENT.

; “(A) All funds of clients paid to a lawyer or law firm, other than

advances for costs and expenses, shall be deposited in one or more

identifiable bank accounts maintained in the state in which the law

office is situated and no funds belonging to the lawyer or law firm shall

be deposited therein except as follows:

“(1) Funds reasonably sufficient to pay bank charges may be de-

posited therein.

(2) Funds belonging in part to a client and in part presently or

potentially to the lawyer or law firm must be deposited therein, but the

portion belonging to the lawyer or law firm may be withdrawn when

due unless the right of the lawyer or law firm to receive it is disputed by

the client, in which event the disputed portion shall not be withdrawn

until the dispute is finally resolved.

“(B) A lawyer shall:

(1) Promptly notify a client of the receipt of his funds, securities,

or other properties.

a

I

The charges for violating Canon 1, EC 1-5 and DR

1-102 (A) (5) relate to respondent’s alleged misconduct be-

fore Neal F. Zimmers, Jr., Judge of the Montgomery

County Court and Harold H. Galbraith, Judge of the Van-

dalia Municipal Court. Respondent was found guilty of

contempt of court in a matter before Judge Zimmers, and

the facts surrounding that occurrence are found in State v.

Weiner (1974), 37 Ohio St. 2d 11, in which case this court

affirmed the contempt citation.

The incident before Judge Galbraith may be sum-

marized as follows: In the course of his closing argument

as defense counsel in a criminal trial, respondent said, “I

want you to listen to the court’s instructions and don’t be

trapped by the court’s instructions.” Judge Galbraith im-

mediately ordered counsel into chambers and admonished

respondent. Upon returning to the courtroom, respondent

said to the jury, “I apologize for whatever I said” and

“don’t let the judge’s instructions confuse you on aiding

and abetting.” At this juncture, the court declared a mis-

trial, and cited respondent for contempt. Later, however,

Judge Galbraith withdrew the contempt charge. The

board concluded that the evidence was insufficient to sus-

tain a willful breach of — 1, EC 1-5 and DR 1-102.

The charges for violating Canon 2, DR 2-106 (A) re-

late to respondent allegedly charging or collecting illegal

or clearly excessive fees from five of his clients: Harry E.

Garrett, Jr., Maggie Williams, Richard A. Parr, Fred M.

Miller and Shirley Ison.

The facts of the Garrett case are found in State v.

Weiner, supra, and the board found a violation of DR

2-106 (A).

“(2) Identify and label securities and properties of a client

promptly upon receipt and place them in a safe deposit box or other

place of safekeeping as soon as practicable.

“(3) Maintain complete records of all funds, securities, and other

properties of a client coming into the possession of the lawyer and

render appropriate accounts to his client regarding them.

"(4) Promptly pay or deliver to the client as requested by a client

the funds, securities, or other properties in the possession of the lawyer

which the client is entitled to receive.”

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pay =

The basis for the charge of respondent’s breach of DR

2-106 (A) in the Maggie Williams matter is that respond-

ent charged an excessive fee for representing her in a

shoplifting prosecution and for making a settlement with

a house-siding contractor. The board found however that

the evidence was insufficient to sustain the count and rec-

ommended that it be dismissed.

Richard A. Parr was represented by respondent in a

trespassing prosecution, which ended in a jury verdict of

acquittal. Parr testified that he was unable to pay a re-

quested $100 retainer, that respondent later advised him

that the fee would be on an hourly rate of $50 per hour,

and that it would run “around $500.” After the trial, re-

spondent requested and received $1,500 for his services.

The board found that the fee charged was not excessive,

and recommended that the count be dismissed.

Fred M. Miller consulted respondent in connection

with a contempt proceeding for nonpayment of child sup-

port. Miller admitted that respondent had advised him at

the outset that the services would be charged at an hourly

rate and that an exact bill could not be given, but that it

would be $100 to $150. After representing Miller, re-

spondent tendered a statement for $315 for 7 hours and 55

minutes, to which Miller objected. The board found that

the evidence was insufficent to sustain the count and rec-

ommended that it be dismissed.

Shirley Ison consulted respondent about obtaining a

divorce. Respondent allegedly quoted a fee of $300. Re-

spondent filed the necessary papers, later discovering that

Mrs. Ison had reconciled with her husband. Subsequently,

Mrs. Ison requested that respondent reinstitute the di-

vorce proceedings. Respondent again filed the necessary

papers, but experienced unusual complications in making

service of process on his client’s husband. Fourteen

months after commencement of the original filing, Mrs.

Ison obtained an uncontested divorce. Respondent submit-

ted a total bill for $1,068 based upon an hourly rate, to

which bill Mrs. Ison objected. The board found that the

evidence was insufficient to sustain the count and recom-

mended that it be dismissed.

|

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Ill

The charges for violating Canon 2, DR 2-110 (A) (2),

supra, relate to respondent allegedly withdrawing from

employment without taking reasonable steps to avoid

foreseeable prejudice to the rights of three of his clients:

Garrett, Maggie Williams, and Shirley Ison.

The facts surrounding respondent’s misconduct in

connection with Garrett are fully reported in State v.

Weiner, supra, and may be summarized as follows: Re-

spondent was having difficulty in collecting the remainder

of a retainer fee from Garrett. Garrett informed respond-

ent that he desired to procure other counsel. Respondent

did not object, and advised Garrett to be present with his

new attorney at the trial. Respondent allegedly informed

the prosecutor of his withdrawal from the Garrett case,

asked that the information be passed along to the trial

judge, and requested a return call if problems developed.

_ On the date of the trial, Garrett appeared at the court-

house without counsel, and respondent failed to appear

there or at another trial he had scheduled for that day,

allegedly because he was ill and remained at home. The

board found that respondent's conduct constituted a

breach of DR 2-110 (A) (2), supra, but recommended that

“if this charge stood alone it would merit a reprimand,

probably a public reprimand.”

Respondent’s misconduct toward Atesets Williams, on

this count, is reported by the board as follows:

“Prior to what defendant [Williams] thought was the

final hearing defendant had paid $320 and gave respond-

ent a check for $50 which he marked ‘account paid in full’

but in an ante room prior to the supposed final hearing,

respondent informed defendant that he had billed her $50

an hour for everything and pulled out a $540 note for

defendant to sign; that if defendant didn’t sign he would

merely leave it up to the judge. I will walk out and mark it

off as a bad cause; that defendant could spend as much as

90 days in jail plus a $500 fine. After some remonstrance

defendant’s husband signed the $540 note and respondent

required addition of words ‘on siding’ to words ‘account

ee WILE AD LI OAH

a Fee

2 paid in full’ to last $50 check. Respondent then went into

3 court and pleaded defendant guilty of lesser offense of

5 trespassing, was assessed a fine of $100, which was paid

i out of her cash appearance bond.

; “Defendant was of the opinion she was to be tried by

4 court without a jury but respondent testified he had pre-

i arranged with the prosecutor to accept the plea to a lesser

3 offense of trespassing.”

Upon these facts the board concluded:

“The threat of withdrawal from employment under

the circumstances here indicated is a breach of Canon 2,

Disciplinary Rule 2-110 and would certainly merit a pub-

lic reprimand if standing alone.”

Respondent’s alleged misconduct toward Shirley Ison

may be summarized as follows: On August 9, 1971, Mrs.

Ison obtained an oral decree of divorce from the bench.

Several months later, respondent advised Mrs. Ison that

she was not divorced because the $488 fee balance had not

been paid, and that her case would be dismissed unless a

judgment entry were filed. The judge inquired of respond-

ent why the judgment had not been filed. Respondent re-

sponded that “he wasn’t going to put it [the decree] on” as

Ison had paid him but $600 on a fee of over $1,000.

Whereupon, another attorney put the decree on at the

judge’s request.

Upon these facts the board concluded:

‘“* * * Refusal to proceed to hearing until fees are

secured or paid is one thing; refusal to put on the entry

after the hearing, which refusal has the effect of working a

_ dismissal, is an entirely different matter,” and constituted

a willful breach of Canon 2, DR 2-110, supra.

IV

The charges relating to respondent’s alleged breach of

Canon 7, DR 7-106 (C) (6), supra, are unspecified in the

report of the board, and will therefore be regarded as

abandoned.

—

Vv

In the final count, respondent is charged with:

“Willful breach of Canon 9, Dr 9-162 in that respon-

dent caused funds of clients to be deposited in bank ac-

counts maintained without the state of Ohio in which were

funds belonging to respondent, and in that respondent

converted to his own use trust funds belonging to his

clients ”

The facts concerning the first portion of this count are

reported by the board, as follows:

“Prior to 1964 respondent established a checking ac-

count in Creve-Couer, Missouri, which account he desig-

nated as a trust account and has continued to use this

account and this account was still in existence at the time

of hearing. Since coming to Dayton he also established two

trust savings accounts in Homestead Savings and Loan in

Dayton from which and to which he has transferred funds

from and to the trust checking account in Missouri. He has

established an Ohio trust account in First National Bank,

Dayton, in March, 1973. Respondent could not tell how

much in the various accounts was his own funds and how

much was funds of various clients, merely that he had

more funds in,these accounts than he owed to clients, and

that he had no general or master ledger or account to

which he or any employee of his could refer and determine

and report the exact amount of clients’ funds in each ac-

count. He further indicated that interest from the trust

savings accounts was paid to him and that he paid income

taxes on the same and did not apportion it to the various

clients’ funds. This commingling of funds has existed for

nearly a decade and was not terminated after the filing of

the complaint, continuing apparently at the time of the

hearing. This situation is in sharp contrast with his de-

tailed bookkeeping, billing and collecting methods in evi-

dence as to attorney fees. His handling of his trust ac-

counts and clients’ funds and his persistence in using a

foreign trust account or an account designated by him as a

trust account in another state constitutes a clear and will-

ful breach of Canon 9 and Discip!inary Rule 9-102 (A) and

Burrs

Ss

(B) (3) and is misconduct as defined in Section (5) (a) of

Rule V of the Supreme Court Rules For The Government

Of The Bar Of Ohio.”

The second portion of the count relates to respondent’s

alleged mishandling of funds entrusted to him by a client,

William H. Turner, which is summarized as follows:

Turner consulted respondent in order to obtain custody of

his son who resided with his mother in Kentucky. Re-

spondent required Turner to deposit with him $480 “cash

in trust for back child support” before he would undertake

a custody proceeding. Turner delivered the $480 to re-

spondent, but the custody matter was never filed. Subse-

quently, respondent advised Turner that, unless ar-

rangements were made to start regular payment of attor-

ney fees, respondent would apply the trust fund to his fees.

Respondent eventually applied the trust deposit to his fees

without Turner’s consent, for which the board found a

willful breach of Canon 9, DR 9-102, supra.

VI

The recommendation of the board reads as follows:

“In view of the collective and cumulative evidence of

misconduct, and an apparent basic indisposition to a

proper conduct of the practice of law with the inierests of

clients subordinated to his own interests in his mind, it is

the recommendation of the Board of Commissioners on

Grievances and Discipline of the Supreme Court of Ohio

that respondent, Dan D. Weiner, be suspended for an in-

definite period of time from the practice of law as provided

in Section (6) (b) of Rule V of the Supreme Court Rules For

The Government Of The Bar Of Ohio.”

The matter is now before this court for consideration

of the report of the board and the objections of respondent.

Mr. Richard G. Snell and Mr. Fred M. Izenson, for

relator.

Mr. Horace W. Baggott and Mr. Raymond A. White,

for respondent.

—.

Per Curiam. We have examined the record of the tes-

timony taken at the hearing before the Board of Commis-

sioners on Grievances and Discipline and the exhibits pre-

sented by both relator and respondent. After a careful

analysis of such evidence as to each count passed upon by

the board, this court agrees that the record amply supports

the findings of the board that respondent has violated the

provisions of Canon 1, DR 1-102 (A) (5); Canon 2, DR

2-106 (A); Canon 2, DR 2-110 (A) (2); and Canon 9, DR

9-102, and that, therefore, respondent is guilty of miscon-

duct as defined in Gov. R. V (5) (b).

We affirm the findings of the board and overrule

respondent’s objections thereto.

We come now to the recommendation cf the board that

respondent be suspended for an indefinite period from the

practice of law pursuant to Gov. R. V (6) (b). In our review

of the whole record, and in consideration of respondent's

objections and contentions, we find no facts in mitigation

or justification of his actions.

Therefore, the findings and report of the Board of

Commissioners on Grievances and Discipline are con-

firmed, and it is the judgment of this court, pursuant to

Gov. R. V (6) (b), that respondent, Dan D. Weiner, be sus-

pended for an indefinite period from the practice of law.

Judgment accordingly.

O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREEZE,

W. Brown and P. Brown, JJ., concur.

— A-10 —

APPENDIX B-1

The Supreme Court of the State of Ohio

Of the Term of January, 1974.

To-wit: October 16, 1974.

Dayton Bar Association, Relator,

v.

Dan D. Weiner, Respondent.

ON CERTIFIED REPORT BY THE BOARD OF COM-

MISSIONERS ON GRIEVANCES AND DISCIPLINE DD

No. 74-6

In appearing to the Court that the Board of Commis-

sioners on Grievances and Discipline filed its Final Report

in this Court on June 7, 1974, recommending that the

respondent, Dan D. Weiner, be indefinitely suspended

from the practice of law, pursuant to Rule V, Section 6b of

the Supreme Court Rules for the Government of the Bar of

Ohio, and it further appearing that respondent filed objec-

tions to the Final Report of the Board of Commissioners on

Grievances and Discipline, this cause was argued by coun-

sel. On consideration thereof, it is ordered and adjudged by

this Court that the report of the Board be confirmed and

respondent suspended from the practice of law for an in-

definite period.

The respondent, Dan D. Weiner, is hereby ordered to

cease and desist from the practice of law in any form and is

forbidden to appear on behalf of another before any court,

judge, commission, board, administrative agency or other

public authority. It is further ordered that he be forbidden

to counsel or advise, or prenare legal instruments for

others or in any manner perform services of any kind for

others which would constitute the practice of law. He is

also forbidden to hold himself out to another or to the

public as being authorized to perform legal services, and

he is hereby divested of each, any and all of the rights,

—A-11—

privileges and prerogatives customarily accorded to a

member in good standing of the legal profession of Ohio.

It is further ordered that the respondent, Dan D.

Weiner, surrender his certificate of admission to practice

to the Clerk of this Court forthwith and that his name be

stricken from the roll of attorneys maintained by this

Court.

It is further ordered that the respcndent, Dan D.

Weiner, pay the costs of these proceedings taxed in the

amount of Two Thousand Two Hundred Ninety Seven Dol-

lars and twenty-eight cents ($2,297.28).

It is further ordered that the Clerk of this Court issue

certified copies of this entry as provided for in Section 19,

Rule V of the Supreme Court Rules for the Government of

the Bar of Ohio.

APPROVED:

C. WILLIAM O’NEILL,

Chief Justice

—A-12—

APPENDIX B-2

THE SUPREME COURT OF THE STATE OF OHIO

Dayton Bar Association,

Relator,

1974 TERM

US. To wit: November 1, 1974

No. DD 74-6

Dan D. Weiner, REHEARING

Respondent.

It is ordered by the court that rehearing in this case is

denied.

—A-13—

APPENDIX B-3

THE SUPREME COURT OF THE STATE OF OHIO

Dayton Bar Association,

Relator,

1974 TERM

US. To wit: November 29, 1974

No. DD 74-6

Dan D. Weiner, REHEARING

Respondent.

It is ordered by the court that rehearing in this case is

denied.

—A-14—

APPENDIX C-1

MTEC a et Tn

1

CHARGES AGAINST PETITIONER

“1. Willful breach of Canon 1, Ethical Consideration

1-5, in that Respondent is guilty of intemperate and un-

dignified conduct in evidencing disrespect for the legal

system and for duly acting and qualified judges in the

performance of their duties.

“2. Willful breach of Canon 1, Disciplinary Rule

1-102 Misconduct (A) (5) in that Respondent’s disrespect

for judges as aforesaid and for the legal system as

aforesaid constituted conduct that is prejudicial to the

administration of justice.

“4. Willful breach of Canon 2, Disciplinary Rule

2-106 Fees for Legal Services (A) in that Respondent en-

tered into agreements for and charged and collected

clearly excessive fees for legal services rendered.

"4. Willful breach of Canon 2, Disciplinary Rule

2-110, Withdrawal from employment (A) (2) in that Re-

spondent withdrew from employment without taking

reasonable steps to avoid foreseeabie prejudice to the

rights of his client.

“5. Willful breach of Canon 7, Disciplinary Rule

7-106 (C) (6) in that Respondent engaged in undignified

and discourteous conduct which was degrading to a tri-

bunal.

“6. Willful breach of Canon 9, Disciplinary Rule

9-102 in that Respondent caused funds of clients to be

deposited in bank accounts maintained without the State

of Ohio in which were funds belonging to Respondent and

in that Respondent converted to his own use trust funds

belonging to his clients.”

—A-15—

APPENDIX C-2

INTERROGATORIES

Come now Respondent and requests Relator to answer

the following Interrogatories, in writing and under oath,

within 28 days of the date of service.

1. State with particularity each time and place in

which you claim the respondent was guilty of intemperate

and undignified conduct in evidencing disrespect for the

legal system, and state the exact fact or facts upon which

you rely, to support said charge.

2. State the exact time and the identity of the acting

and qualified Judges to whom you claim the Respondent

was intemperate and undignified and disrespectful and

state with particularity the act or acts which you claim

support this charge.

3. In charge #2 you claim willful breach of Canon 1,

Disciplinary Rule 1-102 Misconduct (A) (5) by the Re-

spondent under circumstances that he engaged in conduct

that is prejudicial to the administration of justice. State

exactly and in what manner you claim the Respondent

violated this provision of Canon 1, and the act or acts that

you claim he did which violated this Canon.

4. State with particularity the agreements that you

claim the Respondent entered into in which he charged or

collected “clearly excessive fees for legal services ren-

dered,” and state the amount which you claim was the

correct fee for the services rendered and the facts upon

which you base this claim.

5. In answering the preceding interrogatory, state

exactly and in detail what investigation, research, or in-

terviews of individuals you have made to establish this

charge, and give the names and addresses of each person

interviewed.

Wh TAA AA eee

Vee Et

—A-16—

6. State exactly the facts upon which you base

Charge #4 that the Respondent withdrew from employ-

ment without taking reasonable steps to avoid foreseeable

prejudice to the rights of his client, and give the name of

each client whom you claim was affected by such with-

drawal.

7. State when and where you claim the Respondent

breached Canon Rule 7-106 (C) (6), and state in detail the

undignified and discourteous conduct which you claim the

Respondent was guilty of, and in what manner you claim

the same discredited the tribunal, and further state the

name of the tribunal or tribunals before whom this Re-

spondent so behaved.

8. Do you claim in Charge #6 that this Respondent

converted money of his clients to his own use?

9. If your answer to the above interrogatory is in the

affirmative, state the names of the clients and the amount

of money which you claim wa: converted.

10. Further, in amplification of Charge #6, state

whether you claim a deposit in trust funds in a bank out of

the State of Ohio had some improper or ulterior motive.

11. If your answer to Interrogatory #10 is in the af-

firmative, state the evidence upon which you rely to estab-

lish this fact.

PROOF OF SERVICE

I hereby certify that a copy of the foregoing Inter-

rogatories has been served upon Richard G. Snell, Counsel

for Relator, at 2260 Winters Bank Building, Dayton, Ohio

45402, by mailing same to him by regular U.S. Mail, post-

age prepaid, this 5 day of June, 1973.

Dan D. WEINER

Attorney for Respondent

—A-17—

APPENDIX C-3

CANONS - INVOLVED

DR 2-106 Fees for Legal Services.

(A) A lawyer shall not enter into an agreement for,

charge, or collect an illegal or clearly excessive fee.

DR 2-110 Withdrawal from Employment.

(A) In general.

(1) If permission for withdrawal from employment is

required by the rules of a tribunal, a lawyer shall not

withdraw from employment in a proceeding before that

tribunal without its permission.

(2) In any event, a lawyer shall not withdraw from

employment until he has taken reasonable steps to avoid

foreseeable prejudice to the rights of his client, including

giving due notice to his client, allowing time for employ-

ment of other counsel, delivering to the client all papers

and property to which the client is entitled, and complying

with applicable laws and rules.

(3) A lawyer who withdraws from employment shall

refund promptly any part of a fee paid in advance that has

not been earned.

(B) Mandatory withdrawal.

A lawyer representing a client before a tribunal, with

its permission if required by its rules, shall withdraw from

employment, and a lawyer representing a client in other

matters shall withdraw from employment, if:

(1) He knows or it is obvious that his client is bring-

ing the legal action, conducting the defense, or asserting a

position in the litigation, or is otherwise having steps

taken for him, merely for the purpose of harassing or

maliciously injuring any person.

(2) He knows or it is obvious that his continued em-

ployment will result in violation of a Disciplinary Rule.’*5

(3) His mental or physical condition renders it un-

reasonably difficult for him to carry out the employment

effectively.

(4) He is discharged by his client.

ES

4

2

5

4

*

4

ere

dhol

+ dor

—A-18—

(C) Permissive withdrawal.

If DR 2-110(B) is not applicable, a lawyer may not’

request permission to withdraw in matters pending before

a tribunal, and may not withdraw in other matters, unless

such request or such withdrawal is because:

(1) His client:

(a) Insists upon presenting a claim or defense that is

not warranted under existing law and cannot be supported

by good faith argument for an extension, modification, or

reversal of existing law.

(b) Personally seeks to pursue an illegal course of

conduct.

(c) Insists that the lawyer pursue a course of conduct

that is illegal or that is prohibited under the Disciplinary

Rules.

(d) By other conduct renders it unreasonably difficult

for the lawyer to carry out his employment effectively.

(e) Insists, in a matter not pending before a tribunal,

that the lawyer engage in conduct that is contrary to the

judgment and advice of the lawyer but not prohibited

under the Disciplinary Rules.

(f) Deliberately disregards an agreement or obliga-

tion to the lawyer as to expenses or fees.

(2) His continued employment is likely to result in a

violation of a Disciplinary Rule.

(3) His inability to work with co-counsel indicates

that the best interests of the client likely will be served by

withdrawal.

(4) His mental or physical condition renders it dif-

ficult for him to carry out the employment effectively.

(5) His client knowingly and freely assents to termi-

nation of his employment.

(6) He believes in good faith, in a proceeding pending

before a tribunal, that the tribunal will find the existence

of other good cause for withdrawal.

—A-19—

DR 9-102 Preserving Identity of Funds and Property of

a Client. ,

(A) All funds of clients paid to a lawyer or law firm, other

than advances for costs and expenses, shall be deposited in

one or more identifiable bank accounts maintained in the

state in which the law office is situated and no funds be-

longing to the lawyer or law firm shall be deposited

therein except as follows:

(1) Funds reasonably sufficient to pay bank charges

may be deposited therein.

(2) Funds belonging in part to a client and in part

presently or potentially to the lawyer or law firm must be

deposited therein, but the portion belonging to the lawyer

or law firm may be withdrawn when due unless the right

of the lawyer or law firm to receive it is disputed by the

client, in which event the disputed portion shall not be

withdrawn until the dispute is finally resolved.

(B) A lawyer shall: |

(1) Promptly notify a client of the receipt of his funds,

securities, or other properties.

(2) Identify and label securities and properties of a

client promptly upon receipt and place them in a safe de-

posit box or other place of safekeeping as soon as practica-

ble.

(3) Maintain complete records of all funds, securities,

and other properties of a client coming into the possession

of the lawyer and render appropriate accounts to his client

regarding them.

(4) Promptly pay or deliver to the client as requested

by a client the funds, securities, or other properties in the

possession of the lawyer which the client is entitled to

receive.