Opposition Brief — Weiner v. Dayton Bar Ass'n

LIBRARY

S'Poeruc COURT, U. &

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1974

No. 74-920

DAN D. WEINER

Petitioner,

Vv

DAYTON BAR ASSOCIATION

Respondent

BRIEF IN OPPOSITION TO PETITION FOR

A WRIT OF CERTIORARI TO THE

SUPREME COURT OF OHIO

Richard G. Snell

2260 Winters Bank Tower

Dayton, Ohio 45402

and

Fred M. |Izenson

1900 Winters Bank Tower

Dayton, Ohio 45402

Attorneys for Respondent

INDEX

Page

Es iG ee 1

Reasons for Not Granting the Writ.................. 2

Appendix A - Opinions Below

A-1 Findings of Fact and Recommendation of

the Board of Commissioners on

Grievances and Discipline of the

UD CUE GE GD ge ecw e eee A-1

A-2 Dayton Bar Association v Weiner,

kg A-21

Appendix B - Judgments Below................. A-20

ee nS. gy nee noe a owe A-20

B-2 Judgement on Petition for Rehearing ...... A-22

B-3 Judgment on Petition for Rehearing

And to Reopen Matter for Presentment

of Newly Discovered Evidence .......... A-23

Appendix C -

C-1 Charges Against Petitioner ............. A-24

C-2 Interrogatories Filed by Petitioner ........ A-25

a A-27

Appendix D - The Supreme Court Rules for the

Government of the Bar of Ohio ................ A-31

Appendix E - Rules of the Board of Commissioners

on Grievances and Discipline.................. A-46

Appendix F - Pre-hearing instructions adopted by

the Board of Commissioners on Grievances

I Fad oa eve eb) Vay eo 6 8 ke bee o ews A-47

INDEX - continued

Appendix G - Correspondence between Petitioner

and Attorneys for Respondents

G-1 Letter of May 21, 1973 from Petitioner

and Attorneys for Respondents ..........

G-2 Reply to letter of May 21,1973 .........

G-3 Letter of June 5, 1973 from Petitioner

to Attorney for Respondent ............

G-4 Reply to letter of June 5,1973 ..........

Appendix H - Complaint and Certificate filed by

the Dayton Bar Association against

Es ee abe A ee ee oe ol ae Bi ele

AUTHORITIES

Cases

Me Ce, SE A I ce se wewnineaseane

Pointer v Texas, 300 US. 40D 2. ce cece cease

State v Weiner, 37 Ohio St. 2d 211 ............

Canons of Ethics

Supreme Court Ohio Rules for

Government of the Bar of Ohio

Rule V - Disciplinary Procedure ..............

Rules of the Board of Commissioners

on Grievances and Discipline

Rules - Pursuant to Section 36 of Rule V

of Supreme Court Ohio Rule ............

Preliminary Instructions - Pursuant to

Rule V of the Supreme Court Ohio Rule.....

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1974

No. 74-920

DAN D. WEINER

Petitioner,

V

DAYTON BAR ASSOCIATION

Respondent

BRIEF IN OPPOSITION TO PETITION FOR

A WRIT OF CERTIORARI TO THE

SUPREME COURT OF OHIO

OPINIONS BELOW

The opinions below consist of the findings of fact and

recommendation of the Board of Commissioners on

Grievances and Discipline of the Supreme Court of Ohio,

together with the opinion of the Ohio Supreme Court

upholding the recommendation of the Board and are

attached as Appendices A-1 and A-2 respectively.

STATEMENT OF FACTS

The Dayton Bar Association has a _ well-defined

procedure for handling complaints made against lawyers

practicing in its jurisdictional area. A complainant is

genera\ly required to file a written complaint with the

Dayton Bar Association before an investigation is made. In

a few complaints filed with the Bar Association, written

complaints are not required. This generally occurs when the

lawyer's activity becomes a matter of public knowledge

through a newspaper article or as the result of television or

radio news coverage.

After a written complaint is made to the Bar Association,

a copy is immediately forwarded to the lawyer against whom

the complaint has been made. If the matter is deemed worthy

of investigation, a member of the Dayton Bar Association

Ethics Committee is assigned to investigate the complaint, gets

in touch with the complainant, and also discusses the matter

with the lawyer involved. A report is then made by the

member to the full Ethics Committee which then decides

whether to dismiss the case or take further action. Members of

the Ethics Committee are attorneys who are members of the

Dayton Bar Association and who have asked to serve on the

Committee.

If the full Ethics Committee then decides that further

action should be taken it proceeds under the ruies of the

Supreme Court of Ohio (as was done here) which procedure

will be discussed in detail later.

The procedures just mentioned were followed in the case

of Petitioner. Although not required to do so, the Ethics

Committee, after determining that further action against the

Petitioner might be required, invited the Petitioner to appear

before the Ethics Committee to discuss the complaints against

him. The Petitioner appeared voluntarily before the

Committee and an informal discussion was held with the

Petitioner being given the opportunity to present his side of

the case.

After the informal discussion, a vote is taken by the Ethics

Committee to determine whether or not there is reasonable

cause to carry the matter further, and if the Committee so

determines, the matter is referred to the Executive Committee

of the Dayton Bar Association which consists of some six

Dayton Bar Association members who constitute the officers

ee

of the Bar Association. The Executive Committee’s duty is to

consider the matter further and then either dismiss it or

determine to pursue the procedure established by the Ohio

Supreme Court for discipline of members of the Ohio Bar.

Many complaints are dropped at this point.

The Executive Committee in Petitioner’s case decided to

proceed further and recommend that a formal complaint be

filed against him under the rules established by the Supreme

Court of Ohio.

A complaint was later filed (Appendix H), Petitioner filed

his answer, and the case was subsequently heard before a panel!

of three commissioners of the Board of Commissioners on

Grievances and Discipline. The hearing continued for a period

of three days, petitioner being present with counsel

throughout the hearing, and a total of thirteen witnesses

appeared for the Dayton Bar Association and three for the

Petitioner.

The Board subsequently issued its findings of fact and

recommendation, (Appendix A-1) Petitioner asked for a

review by the Ohio Supreme Court, briefs were filed by

Petitioner and Respondent in the Ohio Supreme Court, oral

arguments were presented by petitioner and respondent to the

Ohio Supreme Court, and the Court subsequently issued its

written opinion. (Appendix A-2) Two additional motions for

reconsideration by the Petitioner were denied.

REASONS FOR NOT GRANTING THE WRIT

Petitioner has presented five questions, but has argued

them under three headings under ‘Reasons for Granting the

Writ.” Respondent will address itself to the three arguments

presented by Petitioner under “Reasons for Granting the

Writ.”

Petitioner complains that the interrogatories he filed

requesting that he be advised in detail of the charges against

him were not answered. This is true as there is no provision

under the rules of the Ohio Supreme Court or elsewhere

providing for interrogatories. Appendix G filed herewith,

contains copies of the correspondence between Petitioner and

attorneys for respondent concerning the interrogatories. On

May 21, 1973, (Appendix G-1) Petitioner wrote to the

attorneys for Respondent asking for a complete breakdown of

all the charges after receiving the complaint filed against him.

Respondent’s attorneys replied (Appendix G-2) on May 30,

stating that a breakdown of the charges would not be

furnished for two reasons:

“First of all, you have been furnished with copies of all

written complaints filed against you in the past by the

Dayton Bar Association, you have been kept informed

of the investigations by the Dayton Bar as they

proceeded, and you have met with the Ethics

Committee of the Dayton Bar Association concerning

these charges and discussed the complaints with the

members of the Committee.”

“In addition, since there are no procedural rules

established concerning a Bill of Particulars, we would

not wish to limit the scope of our prosecution in any

way by narrowing or delineating the charges further at

this time.”

Subsequently, on June 5, 1973 (Appendix G-3)

Petitioner submitted his interrogatories. (Appendix C-2) His

request was answered on June 18, 1973 by attorneys for the

Respondent (Appendix G-4) stating in substance that the

interrogatories would not be answered for the same reasons as

set forth in the previous letter of May 30, 1973. (Appendix

G-2)

Under the procedure initiated by the Ohio Supreme

Court for Discipline of Ohio Lawyers, petitioner had the right

to take depositions in the event that he felt more information

was needed. (Appendix E, Rule 4; Appendix D, Rule 5 (32)).

As can be seen from a careful examination of Appendix

G, and from the foregoing, it is clear that the petitioner had

ample opportunity to discover in detail the evidence against

him and had, in fact, received detailed and written complaints

concerning most of the evidence presented at the subsequent

hearing in some cases several months and in other cases many

months before the hearing was in fact conducted.

Petitioner complained that the Ohio Supreme Court

found him guilty of violating Canon 9-102 (B) (3), ‘Failure to

maintain complete records of all funds. . .coming into the

possession of the lawyer and render appropriate accounts to

his client regarding them,” but that 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.

An examination of the complaint and certificate

originally filed against Petitioner (Appendix H) will show that

Count 6 charges Petitioner with a wilful breacn 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 Ohic in which were funds belonging to Petitioner

and in that Petitioner converted to his own use trust funds

belonging to his clients. Petitioner was indeed found guilty of

the violation of this particular Canon in several respects as the

record shows.

Petitioner is apparently complaining about the one

finding against him by the Ohio Supreme Court which

concerned his failure to keep accurate records concerning

certain savings accounts in which he deposited clients’ funds,

kept inadequate records, and took the interest earnings for

himself. An examination of the transcript of the proceedings

before the Board (Pages 329 to 352) will show a detailed

direct examination by counsel for the Dayton Bar Association

and cross examination by the Petitioner of the savings and

loan company official who testified concerning the trust

savings accounts. Every opportunity was given to the

Petitioner for cross examination (which he used) and

examination of the original bank records, as well as the

opportunity to testify concerning the trust savings account

himself which he did while a witness before the Board.

Thus, the argument of the Petitioner that he was never

given an opportunity to present evidence to rebut that

particular finding is without merit.

Petitioner next complains that the Ohio Supreme Court

found him guilty of charging a Mr. Garrett excessive fees in

violation of DR2-106 and that Petitioner had presented no

evidence on that issue.

The charge involving one Harry E. Garrett, Jr. appears in

the transcript commencing on Page 121 and ending on Page

145. Essentially, the charge involved Petitioner's abandonment

of a client on trial in a criminal case in the Court of Judge Nea!

Zimmers, Jr., the witness who appeared at the hearing before

the Board. Petitioner, although he represented Mr. Garrett, did

not appear at Mr. Garrett’s trial because he had not been paid

his fee in full. As a result, Judge Zimmers found him guilty of

contempt of court and fined him $450. The contempt of court

case was appealed by Petitioner to the Ohio Supreme Court

where the conviction was upheld. State v. Weiner (1974), 37

Ohio St. 2d 11.

The question of Mr. Garrett's payment of fees to

Petitioner was discussed several times throughout the record

and was very definitely in issue throughout the proceedings.

The findings of fact and recommendation issued by the Board

of Commissioners (Appendix A-1, Page 4) found Petitioner

quilty of wilful breach of Canon 1, Disciplinary Rule 1-102,

Section (A) (5) and Canon 2, Disciplinary Rule 2-106 (A), and

further, that he had engaged in conduct prejudicial to the

administration of justice in that he had failed to notify the

Court of his non-appearance, had ‘‘used’”” the Court as a lever

to collect fees shortly before ‘trial time, and had withdrawn

_ from employment without taking reasonable steps to protect

the rights of his clients. Thus, it is quite clear that not only has

the issue of fees been raised at the hearing, but also a finding

had been made by the Board of Commissioners. Simply

because one of the Board members had remarked that “the

question of the amount of the fee isn’t involved” does not

mean that Petitioner could not be found guilty of any

violation.

One of the members of the Board questioned Mr. Weiner

as follows:

Q “With reference to this Garrett case, there was some

testimony by Judge Zimmers that Mr. Garrett had paid

you a $450 retainer fee in that case; is that right?

A He had paid $450 toward the $600 retainer fee on the

DWI, that is correct.

Q And that you have applied the $450 to his mother’s

bill?

A No.”

Summarizing the Garrett: matter, then, there was involved

in this one case disrespect for Judges and for the legal system,

conduct prejudicial to the administration of justice, withdrawal

from employment without taking reasonable steps to protect

the rights of clients, and the charging of excessive fees. The

fact that the excessive fees charged was a relatively small part

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of the Garrett matter overall, certainly cannot be shown to be

prejudicial to Petitioner, as he had more than adequate notice

of the charge.

Petitioner contends that the fact that the Ohio Supreme

Court found him guilty of charging Mr. Garrett excessive tees

in violation of DR2-105 violated the guidelines laid down in In

re Ruffalo, 390 US 544. The Ruffalo case involved the

disbarment of an Ohio lawyer from practicing in Federal Court

who had already been disbarred by the Ohio Supreme Court.

The thrust of the opinion was that disbarment in a state court

does not necessarily disbar a lawyer from the Federal Court

and that charges against a lawyer in a disbarment proceeding

must be made so that the lawyer has opportunity to answer

them. In the Ruffalo case, supra, an additional charge was

formally placed against the Petitioner in the disbarment

proceedings as a result of testimony elicited from the

Petitioner and another individual at the hearing. Such was not

the case here.

During the testimony of Judge Neal — which

concerned Petitioner’s failure to appear in Court to represent

Garrett, the matter of the fees charged Mr. Garrett was

discussed at length.

Subsequently, while the Petitioner was being examined

during the disbarment proceedings, the matter of excessive

fees in the Garrett case came up again. A careful reading of the

record (Pages 411 to 429) will demonstrate that the comments

of ‘the hearing officers concerning the fact that the fee was not

in issue were directed to the overriding proposition that the

failure of Petitioner to appear for the hearing to represent his

client was the real crux of the Garrett charge. As a matter of

fact, even after these comments in passing were made by two ,

‘of the three hearing officers, Mr. Weiner continued to testify

concerning the fees charged Mr. Garrett. (Record Page 417,

Page 418 and Page 423) In part two of his argument (Petition

for a Writ of certiorari, Page 7) Petitioner again attacks the

findings in the Garrett case on the ground that Mr. Garrett

, Never appeared nor testified before the Disciplinary panel,

therefore, denying Petitioner the right of cross-examination.

Petitioner cited the case of Pointer v. Texas, 380 US 400,

concerning the right of confrontation and cross examination as

being essential and fundamental for a fair trial.

Thé Pointer case, supra, held that in a charge of robbery

/

against a defendant, the introduction of a transcript of a

witness’ testimony given at a preliminary hearing at which

defendant was not represented by counsel and had no

opportunity to cross Speen the witness, violated the

ubitrruain’ ss igh *itrvombforn *writressesagan ise’ ini

In the present case, the testimony of Garrett himself was

completely unnecessary, The crux of the charges against

Petitioner arising from the Garrett matter involved disrespect

for judges and the legal system, the charging and collecting of

clearly excessive fees, engaging in conduct prejudicial to the

administration of justice jn failing to notify the Court of his

non-appearance, ‘‘using the Court as a lever to collect fees

shortly before trial time, and withdrawing from employment

without taking reasonable| steps to protect the rights of his

clients.” The proof of none of these charges required the

testimony of Mr. Garrett.

Additionally, the Petitioner was not only well aware of

the fact that his activities in the representation of Garrett

would be a major factor in the disbarment proceedings, but he

had the right as set forth previously to subpoena witnesses on

his behalf and could have had Mr. Garrett present in person as

a witness had this been his desire.

The fact that Mr. Gartett never filed or registered a

complaint against the Petitioner, is completely irrelevant. As

pointed out, the Petitioner had abundant notice that the

Garrett matter would be in issue and in fact at the time of the

disciplinary hearing had — his contempt of court

Citation arising from the Garrett matter to the Ohio Supreme

Court.

Petitioner’s final argument contends that his being found

guilty of a violation of the Canon of professional ethics in

failing to file a divorce decree\ after the divorce had been

granted because of the failure of his client to pay him the

balance of the fee owing constitutes the forcing of Petitioner

and his fellow lawyers to engage in a condition of involuntary

servitude in violation of the equal protection clause of the

14th amendment of the United States Constitution.

A brief review of Petitioner's activities in withholding the

filing of the decree is in order. Mrs. Shirley Ison, a witness at

the disbarment proceedings, and whose testimony appears in

the record, pages 97 to +21, first employed the Petitioner in

June of 1970 because of marital problems. Fees were discussed

at the first meeting at which time Mrs. Ison was advised she

would have to pay $100 to start the divorce and that the total

fee would be $300, her husband being required to pay $150 of

the total. Petitioner told her that the filing fee was included in

the $100 retainer, which was a part of the total figure of $300.

A divorce action was filed and the temporary hearing held. It

appeared that Mrs. Ison and her husband commenced living

together again, that this did not work out satisfactorily, that

they again separated and that the Petitioner was asked to go

ahead with the divorce. A supplemental complaint was filed,

considerable difficulty was had in serving the husband, and

eventually a final divorce hearing was held. Mrs. Ison

complained that shortly before the final divorce hearing she

talked with Petitioner and he showed her a ledger card stating

that he had been paid approximately $580 and that she still

owed him $488. Petitioner told Mrs. Ison he would not go

ahead with the final hearing unless she guaranteed him the

balance would be paid. The final hearing was held on August

9, 1971, and several months later Mrs. Ison discovered that a

final decree had not been filed and that she was still married.

She stated that Petitioner threatened to call her husband and

tell him they were still married unless the balance of the fee

was paid.

Also testifying at the disbarment proceedings was Judge

Arthur O. Fisher of the Montgomery County Court of

Common Pleas, Division of Domestic Relations, who heard the

Ison case and whose testimony appears in the record

commencing on Page 81 and ending on Page 97. Judge Fisher

testified that the divorce hearing involving Mrs. Ison was held

on August 6, 1971, and that the action was dismissed in

October of 1971 because the divorce decree had not been

filed. Attorney Raymond Clayman, who later represented Mrs.

Ison, called Judge Fisher on behalf of Mrs. Ison. At this, Judge

Fisher called Petitioner, asked why a decree had not been

filed, and was informed by Petitioner that he had over $1,000

worth of work in the case, that Mrs. Ison had paid him $600,

and that he would not put on the divorce decree until the

balance was paid. Judge Fisher then instructed Mr. Clayman to

file the decree for Mrs. Ison and this was accomplished on

January 6, 1972.

The Board of Commissioners on Grievances and

Discipline, in its findings of fact and recommendations, found

a wilful breach of Canon 2, Disciplinary Rule 2-110, in the

Ison matter in that Petitioner withdrew from his employment

without taking reasonable steps to protect the rights of his

client. In passing, the Board mentioned that 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 had the effect

of working a dismissal, is an entirely different matter.

Thus, it would appear that Petitioner claims that his

contract rights in collecting fees from his clients override and

are superior to his duty to properly represent a client and not

abandon the client once representation is undertaken.

Seg a een q

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CONCLUSION

Petitioner has been tried pursuant to the disciplinary

rules established by the Supreme Court of the State of Ohio

and has been appropriately disciplined. The procedures

outlined above and followed by the Dayton Bar Association in

the investigation of complaints against attorneys guarantee the

protection of the rights of an individual lawyer. The

complaints against the Petitioner were well-documented and at

all times throughout the proceedings the Petitioner was well

aware of the nature and magnitude of the charges against him

as well as the identities of the individuals involved.

The disciplinary rules of the Ohio Supreme Court

guarantee a hearing to a lawyer charged with unprofessional

conduct before members of the Board of Commissioners on

Grievances and Discipline. The hearing is conducted in secret if

that is the desire of the accused (as was the case here),

witnesses are sworn, and testimony is given with full rights of

examination and cross-examination. Provisions are made for

subpoenaing witnesses and for the taking of depositions.

After the hearing before the Board, the parties are given

the right to file briefs as was done in this case and, after the

finding of the Board of Commissioners and its

recommendation, further opportunity is presented for the

filing of briefs and an appearance before the Supreme Court of

the State of Ohio. This, too, was done in this case.

It is submitted that the rights of the Petitioner have been

fully protected and a Writ of Certiorari should not issue in this

case.

Respectfully submitted,

Richard G. Snell

2260 Winters Bank Tower

Dayton, Ohio 45402

and

Fred M. Izenson

1900 Winters Bank Tower

Dayton, Ohio 45402

Attorneys for Dayton Bar

Association, Respondent

ay ee

APPENDIX A-1

BEFORE THE BOARD OF COMMISSIONERS

ON

GRIEVANCES AND DISCIPLINE

OF

THE SUPREME COURT OF OHIO

In re: , : CASE NO. 181

Complaint against:

Dan D. Weiner,

Respondent, : Findings of Fact

and Recommendation

Dayton Bar Association, : of the Board of

Commissioners on

Relator. : Grievances and Discipline of

The Supreme Court of Ohio

This matter came on for hearing on October 2, 3 and 4,

1973, before the duly appointed hearing panel of the Board of

Commissioners on Grievances and Discipline on the complaint,

the answer and the evidence.

Respondent, Dan D. Weiner, age 41, of Kettering, was

admitted to the Ohio Bar and started practice in Dayton in

1963, first in a firm, but since 1965 as a sole practitioner,

against whom the following complaint was filed:

“Now comes the Relator and alleges that Dan D.

Weiner, an Attorney at Law, duly admitted to the

practice of law in this State of Ohio, is guilty of the

following misconduct:

‘*1. Willful breach of Canon 1, Ethical

Consideration 1-5, in that Respondent is guilty of

intemperate and undignified 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.

corr Coe | ke

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“3. Willful breach of Canon 2, Disciplinary Rule

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

entered 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

Respondent withdrew from employment without

taking reasonable steps to avoid foreseeable 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 tribunal.

“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.”

To the within complaint Respondent in propria persona

filed interrogatories in the usual form, but unon the return of

his counsel from a trip to Europe the counsel filed an answer

denying all the allegations of each paragraph of the complaint.

The verbatim complaint and these facts are recited herein for

the reason that the Panel took the position that Respondent

and his counsel had thereby elected to abandon the

interrogatories.

FINDINGS OF FACT

FRED M. MILLER

Fred M. Miller, a J. C. Penney clerk of four years, earning

about $6000 to $6500 per year, was divorced January 28,

1968 from his 1946 wife. Miller had made $18,000 per year

on a previous job. Support payments of $60.00 per week

resulted in arrearage of $4,612.67 when Miller consulted

Respondent in July 1970 about the contempt proceeding

brought against Miller. Respondent thought fee would be $100

to $150. No court appearances - Respondent had conference

between Miller and former wife and payments were reduced to

$37.50 per week and released from all back support.

a

Respondent submitted statement of $315.00 for 7 hours 55

minutes with a balance of $296.70. Miller complained by

phone. Respondent said he would take nothing less than his

statement. Miller stated that Respondent's first explanation of

an hourly billing was in the second or third phone

conversation after his complaint. Miller said Respondent said

he would take Miller to court - garnishee his wages and “see

him in jail’ but on cross-examination admitted he did not

know whether this was with reference to non-payment of

support or non-payment of attorney fees. Upon

cross-examination Miller admitted that Respondent said at his

first call that he could not give an exact bill and that he would

charge at an hourly rate.

Miller was not satisfied with original attorney in divorce

case and has been to another attorney since Respondent.

With regard to the willful breach of Canon 2, Disciplinary

Rule 2-106 (A) there is evidence the Respondent's fees are

high but there is not sufficient evidence to show that his fees

are illegal or clearly excessive and for that reason this count in

regard to this complaint should be dismissed.

SHIRLEY ISON

Shirley !son consulted Respondent in June 1970 about a

divorce and said that Respondent quoted a fee of $300.00

with a retainer of $100.00, including filing fee and that

husband would be required to pay $150.00

The $100.00 retainer was paid and case was filed,

preliminary hearing held which Mrs. Ison attended and

preliminary order made on support ($20.00 alimony, $20.00

child support and $10.00 litigation fees per week) but in

August 1970, the parites briefly reconciled, then instructed

Respondent to go ahead. A supplemental petition was filed

August 27, 1970, but not being able to obtain service, the

court refused to appoint a neighbor woman and finally

appointed a private detective who after about three weeks

obtained service on the husband.

Respondent in going over his ledger informed Mrs. Ison

she had paid $580.00 and still owed $488.00 and he would go

ahead with the final hearing is she agreed to pay the $488.00

balance. Shortly thereafter, an uncontested divorce hearing

was held on August 9, 1971 and a divorce verbally announced.

Several months later, Respondent phoned and advised Mrs.

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she

not been paid and by letter of November 8, 1971 said that

unless final judgment entry was filed, the case would be

wasn't goint to put decree on” as Ison had paid Respondent

but $600.00 on a fee of over $1,000.00.

The Court instructed Attorney Claymore to prepare and

put on a decree which was done on January 6, 1972.

There is evidence that Respondent’s fees are high, but

there is not sufficient evidence to show that his fees are illegal

or clearly excessive and for that reason this count in regard to

this complaint should be dismissed.

With regard to willful breach of Canon 2, Disciplinary

Rule 2-110, Respondent withdrew from his employment

without taking reasonable steps to protect the rights of his

client.

JUDGE NEAL ZIMMERS, JR.

Neal Zimmers, Jr., Montgomery County Court Judge,

testified he called Respondent to say a jury trial in which

Respondent represented the defendant was next on the

docket. Respondent said he wanted to go on a Bar Association

trip to Nassau, “that he wouldn't be there” and “he didn’t

think | would do anything about it.”” The court instructed the

clerk to call off the jury and told Respondent his case would

be first on the docket and to expect to go forward on it.

The case was re-assigned but on the week-end before,

Respondent, who had been paid a total of $450.00 but not in

full of his demand, told the Prosecutor that his client was

going to obtain other counsel and that Respondent had

withdrawn. The jury dismissed - Respondent was charged with

and found guilty of contempt - fine $450.00, the exact

amount of fee which he had collected which was affirmed by

the Court of Appeals and Supreme Court of Ohio.

Respondent is guilty of willful breach of Canon 1,

Disciplinary Rule 1-102 Section (A) 5 and Canon 2,

Disciplinary Rule 2-106 (A) and has engaged in conduct

prejudicial to the administration of justice in that he has failed

to notify the Court of his non-appearance; has “used” the

aS ee

Court as a Jever to collect fees shortly before trial time and has

withdrawn from employment without taking reasonable steps

to protect the rights of his clients.

JUDGE HAROLD H. GALBRAITH

Harold H. Galbraith, Judge of Vandalia Municipal Court,

presided over a two-day jury trial in which Respondent

represented a defendant charged with possession of marijuana.

In the course of his final argument, Judge Galbraith testified

that Respondent said ‘| want you to listen to the Court’s

instructions and don’t be trapped by the Court’s instructions.”

We adjourned to chambers at my request after a rather stormy

session - instigated mainly by myself. Court admonished

Respondent and parties returned to the courtroom.

Respondent said “! apologize for whatever | said’’ and

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

abetting.”

Judge testifies ‘’! lost my composure somewhat.” A juror

was withdrawn and the jury dismissed. Respondent was cited

for contempt, later summarily found guilty, fined $100.00,

sentenced to three days in jail. Respondent appealed and while

in Court of Appeals the Judge dismissed the charge saying “’!

figured Dan had enough problems.” Respondent testified that

court reporter read back “Don’t be confused by the

instructions on aiding or abetting.”

The evidence is insufficient to sustain a willful breach of

Canon 1, Ethical Consideration 1-5 or Canon 1, Disciplinary

Rule 1-102 and the same should be dismissed.

MAGGIE WILLIAMS

Maggie Williams of Dayton, housewife and mother of

three, was arrested for shoplifting dresses in Rikes Department

Store and retained Respondent as he had previously

represented her brother. Respondent supposedly said he would

normally charge $500.00 but since Respondent had done work

for her brother, he would do it for $350.00. Paid $200.00 and

signed note.

Respandent conducted a hearing to suppress evidence. In

the meantime, the Williams’ became involved in a siding

contract and after consultation with Respondent, Respondent

arranged with the contractor to take back his material and

cancel the contract for which there was a $50.00 fee.

a

TR PS. oo gad

we SR

a iin

Defendant quoted Respondent as saying his fee would be

$1000.00 if it went to a jury trial and that a jury would cost

$1000.00

Prior to what defencantt thought was the final hearing,

defendant had paid $320.00 and gave Respondent a check for

$50.00 which he marked “account paid in full” but in an ante

room prior to the supposed final hearing, Respondent

informed defendant that he thad billed her $50.00 an hour for

everything and pulled out a $'540.00 note for defendant to sign;

that if defendant didn’t sigm, he would merely leave it up to

the Judge. | will walk out amd mark it off as a bad cause; that

defendant could spend as much as 90 days in jail plus a

$500.00 fine. After some remonstrance, defendant’s husband

signed the $540.00 note and Respondent required addition of

words “on siding” to words “account paid in full’ to last

$50.00 check. Respondent then went into court and pleaded

defendant guilty of lesser offiense of trespassing, was assessed a

fine of $100.00 which was paic out of her cash appearance

bond.

Defendant was of the opinion she was to be tried by

Court without a jury, but Respondent testified he had

pre-arranged with the prosecutor to accept the plea to a lesser

offense of trespassing.

At an adoption proceeding in Juvenile Court in the

presence of a caseworker, defendant and her husband claimed

that Respondent, who happened to be present, came over and

asked defendant if that was the dress | was wearing the day |

stopped at Rikes. Defendant thought this confrontation was

after the Kettering Court hearing, while she was paying on her

account and for the purpose of embarrassing her and

prejudicing the pending adoption proceeding.

Examination of the record disclosed defendant first met

Respondent March 29, 1971. Date of last adoption hearing

August 27, 1971. July 2, 1972 date of last $50.00 check from

defendant to Respondent; July 19, 1972 date of Kettering

Court hearing - plea of guilty to lesser charge of trespasisng

entered in lieu of shoplifting.

It, therefore, appears highly unlikely that the events that

defendant related took place or with the implications that she

imputed to them as this was eleven months before there was

any mention of any additional fees and the onset of any

strained relations between the parties.

eS, Pe

There is evidence that Respondent's fees are high, but

there is not sufficient evidence to show that they are illegal or

clearly excessive and so the count as to willful breach of

Canon 2, Disciplinary Rule 2-106 (A) should be dismissed. The

threat to withdraw from employment without taking

reasonable steps to protect the rights of his clients is a breach

of Canon 2, Disciplinary Rule 2-110.

WILLIAM TURNER

William Herbert Turner had been divorced by his wife in

Dayton, the wife getting custody of a six-year-old son, who

then moved to Kentucky and from where the former wife

initiated an action against Turner for back support under the

Uniform Support for Dependents Act. Turner desired to get

custody of the minor son but the amount of the back support

was in dispute. Respondent required Turner to deposit with.

him $480.00 ‘‘cash in trust for back child support” before a

proceeding for custody was initiated.

The custody matter was never filed. Respondent did

some tax work for Turner’s second wife and was consulted

about an adoption of the child of the second Mrs. Turner

which was never initiated. Turner eventually signed an

$800.00 note for attorney fees in the custody proceeding

which never went to court.

In a copy of a letter of December 17, 1969 to Kentucky

Support Bureau - with signed P.S. to Turner, Respondent

stated “’-- | am going to hold the moneys that | am holding in

trust and unless arrangements are made to start paying on the

fees regularly, will apply that money towards them” (Relator’s

Exhibit *32) and eventually did apply said trust deposit to his

fees without consent of Turner.

Respondent admitted the purpose of the $480.00

support payment fund had not been accomplished or the

amount of the support payments determined when he took it

for attorney fees on January 23, 1970.

This constitutes a willful breach of Canon 9, Disciplinary

Rule 9-102.

RICHARD PARR

Richard Allen Parr was an electronic technician on a wind

tunnel at a Frigidaire plant. He had access to classified work

for the government. One evening after a beer drinking episode,

Snr ane RON VRIES

win

Parr attempted to locate the home of a male friend in the

neighborhood. He parked his car and walked up and down the

block to locate the correct apartment. When he. found the

apartment, he went to the front door, then thought he would

pull a'trick and went around to the back and stood on a chair

to knock on the window. At the rear of the apartment he was

accosted by a neighbor with a ball bat. This neighbor filed a

charge of trespassing against Parr. He was eventually tried and

acquitted in a one and one-half day j jury trial in which Parr was

represented by Dan D. Weiner.

Parr said at his first meeting, Respondent asked a retainer

of $100.00 which Parr did not have, but at subsequent

ol before trial Respondent said that he charged $50.00

per hour and the fee would probably run around $500.00.

After the trial, Respondent mailed Parr a bill for’

$1,500.00 which was paid in full by Parr.

The fee charged is not excessive and this count should be

dismissed.

SHIRLEY ISON

With regard to willful breach of Canon 2, Disciplinary

Rule 2-110, Respondent withdrew from his employment

without taking reasonable steps to protect the right of his

client and would merit a public reprimand, if this charge stood

alone. 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.

JUDGE ZIMMERS

If this charge stood alone, it would merit reprimand,

probably a public reprimand.

MAGGIE WILLIAMS

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 public

reprimand if standing alone.

WILLIAM TURNER

The evidence here indicates clear and willful pon of

Canon 9, Disciplinary Rule 9-102.

otiin

TRUST ACCOUNTS

Prior to 1964, Respondent establi

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 m ledger or

account to which he or any employee of his Id refer and

determine and report the exact amount of clients’ funds in

each account. He further indicated that interest from the trust

clients’ funds. This commingling of funds has

nearly a decade and was not terminated after the

complaint, continuing apparently at the time of

This situation is in sharp contrast with his detailed

bookkeeping, billing and collecting methods in evi

defined in section (5) (a) of Rule V of The Supreme Court

Rules For The Government Of The Bar Of Ohio.

RECOMMENDATION

In view of the collective and cumulative evi

conduct of the practice of law with the interests of

subordinated to his own interests in his mind, it

Grievances and Discipline of the Supreme Court of Ohi

Respondent, Dan D. Weiner, be suspended for an i

period of time from the practice of law as provided in

— A-10 —

B) (b) of Rule V of The Supreme Court Rules For The

jovernment Of The Bar Of Ohio.

Chairman, Board of Commissioners on

Grievances and Discipline of

The Supreme Court of Ohio

Secretary, Board of Commissioners on

Grievances and Discipline of

The Supreme Court of Ohio

-A-11-

APPENDIX A-2

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 rcspondent 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 1-57; Cannon 1, DR 1-102 (A)(5)3; Canon 2, DR

‘The disciplinary rules and ethical considerations contained in the

Code of Professional Responsibility are commonly denoted DR and EC 4

respectively.

?EC 1-5 reads:

“A lawyer should maintain high standards of professional conduct

and should encourage fellow lawyers to do likewise. 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.”

3DR 1-102(A) (5) reads:

“MISCONDUCT.

“(A) A lawyer shall not:

“se + +

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

justice.”

ALE Sek pl at '

— A-12 —

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

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

*DR 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.”

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

“WITHDRAWAL FROM EMPLOYMENT.

“(A) In general.

'‘* * *

"(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-

able laws and rules.”

®DR 7-106 (C) (6) reads:

“TRIAL CONDUCT.

‘** * *£

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

lawyer shall not:

‘“-* * *

(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-13 —

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.”

See ak Va Ne

20 LPP EUS etre

-~A4~

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.

— A+15—

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 th» 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 con.’:<t 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 Maggie 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 vrords on siding’ to words ‘account

— A-16 —

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

court and pleaded defendant guilty of lesser offense of

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

out of her cash appearance bond.

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

court without a jury but respondent testified he had pre-

arranged with the prosecutor to accept the plea to a lesser

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.

—A-17 —-

V

In the final count, respondent is charged with:

“Willful breach of Canon 9, Dr 9-102 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 Disciplinary Rule 9-102 (A) and

-A-18-

(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

miscunduct, and an apparent basic indisposition to a

proper conduct of the practice of law with the interests 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.

— A-19 —

Per Curiam. We have examineé 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 of 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.

se il NR er NT 1

-A-2-

APPENIDIX B-1

The Supreme Courtt 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 prepare 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 be:ng authorized to perform legal service=, and

he is hereby divested of each, any and ali of the rights.

—A-21-

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 respondent, 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-22-

APPENDIX B-2

THE SUPREME COURT OF THE STATE OF OHIO

Dayton Bar Association,

Relator, | : '

1974 TERM

vs. 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.

-Al3-

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 ts ordered by the court that rehearing in this case is

denied.

— A-24-

‘ APPENDIX C-1

CHARGES AGAINST PETITIONER

“|. 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.

“3. 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 foreseeable prejudice to the

rights of his client.

“h. 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-

buna.

“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-25 —

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.

Leo eRT ORM ERED ]

—A-26—

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 ee 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 was 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-27 —

APPENDIX C-3

CANONS INVOLVED

DR 1-102 Misconduct.

(A) A lawyer shali not:

(1) Violate a Disciplinary Rule.

(2) Circumvent a Disciplinary Rule through actions of

another.

(3) Engage in illegal conduct involving moral turpitude.

(4) Engage in conduct involving dishonesty, fraud, deceit,

or misrepresentation of justice.

(6) Engage in any other conduct that adversely reflects

on his fitness to practice law.

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.

(B) A fee is clearly excessive when, after a review of the facts,

a lawyer of ordinary prudence would be left with a definite

and firm conviction that the fee is in excess of a reasonable

fee. Factors to be considered as guides in determining the

reasonableness of a fee include the following:

(1) The time and labor required, the novelty and

difficulty of the questions involved, and the skill requisite to

perform the legal service properly.

(2) The likelihood, if apparent to the client, that the

acceptance of the particular employment will preclude other

employment by the lawyer.

(3) The fee customarily charged in the locality for similar

legal services.

(4) The amount involved and the results obtained.

(5) The time limitations imposed by the client or by the

circumstances.

(6) The nature and length of the professional relationship

with the client.

(7) The experience, reputation, and ability of the lawyer

or lawyers performing the services.

(8) Whether the fee is fixed or contingent. (C) A lawyer

shall not enter into an arrangement for, charge, or collect a

contingent fee for representing a defendant in a criminal case.

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

$ cea’ (ea.

from employment in a proceeding before that tribuna! 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 employment

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 bringing

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

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

employment will result in violation of a Disciplinary Rule.

(3) His mental or physical condition renders it

unreasonably difficult for him to carry out the employment

effectively.

(4) He is discharged by his client.

(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 obligation 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 difficult

for him to carry out the employment effectively.

(5) His client knowingly and freely assents to termination

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.

By eed.

- A-30-

DR 9-102 Preserving Identity of Funds and Property of

a Client.

(A) All funds of clients paid to a lawyer or iaw 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.

— A-31—

APPENDIX D

RULE V.

DISCIPLINARY PROCEDURE.

Pursuant to the powers of this Court over the Bar of this

State and the members thereof, this rule is amended, as

follows, effective on March 11, 1964, and shall apply to all

pending cases.

(1) Creation of Board of Commissioners on Grievances

and Discipline. There is hereby created as Commissioners of

this Court a Board of Commissioners on Grievances and

Discipline. Said Board of Commissioners shall consist of

seventeen (17) members of the Bar of this Court, appointed by

this Court. One member of such Board shall be appointed by

this Court. One member os such Board shall be appointed

from each of the following districts: District 1, comprising

Butler, Clermont, Clinton, Hamilton and Warren Counties.

District 2, comprising Darke, Miami, Montgomery, Preble and

Shelby Counties. District 3, comprising Defiance, Fulton,

Hancock, Henry, Paulding, Putnam, Van Wert, Williams and

Wood Counties. District 4, comprising Lucas County. District

t, comprising Crawford, Delaware, Marion, Morrow, Ottawa,

Sandusky, Seneca and Wyandot Counties. District 6,

comprising Champaign, Clark, Fayette, Greene, Logan,

Madison and Union Counties. District 7, comprising Franklin

County. District 8, comprising Adams, Brown, Gallia,

Highland, Jackson, Lawrence, Pickaway, Pike, Ross, Scioto

and Vinton Counties. District 9, comprising Coshocton,

Fairfield, Knox, Licking, Muskingum and Perry Counties.

District 10, comprising Ashland, Erie, Holmes, Huron, Lorain,

Medina, Richland and Wayne Counties. District 12, comprising

Cuyahoga County. District 13, comprising Ashtabula,

Columbiana, Geauga, Lake, Mahoning and Trumbull Counties.

District 14, comprising Carroll, Stark and Tuscarawas

Counties. District 15, comprising Belmont, Guernsey,

Harrison, Jefferson and Monroe Counties. District 16,

comprising Allen, Auglaize, Hardin and Mercer Counties.

District 17, comprising Athens, Hocking, Meigs, Morgan,

Noble and Washington Counties. The term of office of each

member of said Board of Commissioners shall be three (3}

years, beginning on January 1 next following his appointment.

:

3

4

SAiuaee LO

ol aAL

EO ADO SF

— A-32 —-

Provided, however, that any member of the Board whose term

has expired and who shall have an uncompleted assignment as

a member of a panel shall continue to serve for the purpose of

such assignment until it shall have been concluded before the

Board of Commissioners, and further provided that his

successor commissioner shall take no part in the proceedings

of the Board concerning such assignment. Appointments to

terms commencing January 1 of any year shall be made prior

to December 1 of the preceding year. Vacancies for any cause

shall be forthwith filled by appointment by this Court for the

unexpired term. The Court shall each year designate one

member as Chairman of said Board of Commissioners and

designate a Secretary, each of whom shall have authority to

execute journal entries on behalf of the Board of

Commissioners and of panels thereof.

(2) Jurisdiction of Board. The Board of Commissioners is

empowered and charged to receive, entertain, inquire into,

take evidence, preserve the record, make findings and submit

recommendations to this Court as hereinafter provided:

(a) concerning complaints of misconduct as

hereinafter defined which are alleged to have been

committed by an attorney and counselor at law, person

under suspension for an indefinte period from the

practice of law, or judge, or

(b) concerning the mental illness of any attorney and

counselor at law or judge, or

(c) relating to petitions for reinstatement as an

attorney and counselor at law in this State, or

(d) upon reference by this Court of conduct affecting

any proceeding under this rule, where the acts allegedly

constitute a contempt of this Court or a breach of these

rules but did not take place in the presence of the court

or a member thereof, whether by willful disobedience of

any order or judgment of this Court or the Board of

Commissioners, by interference with any officer of this

Court in the prosecution of any duty, or otherwise;

provided that nothing herein shall be construed as

limiting or affecting the plenary power of this Court to

impose punishment with reference either to contempts or

breaches of these rules committed in its presence or the

plenary power of any other court with reference to

contempts committed in its presence.

~hin

(3) Referral for Investigation. The Board of

Commissioners may refer to the Grievance Committee of the

appropriate local bar association or to the Committee on Legal

Ethics and Professional Conduct of the Ohio State Bar

Association any matters coming to its attention for

investigation, as hereinafter provided.

(4) Application of Rule; Authority and Duty of Local

Committees. From and after the effective date of this rule, all

proceedings with regard to mental illness and complaints and

grievances involving alleged misconduct by attorneys and

counselors at law and judges; all proceedings for the discipline

of such attorneys and counselors at law, persons under

suspension for an indefinite period or disbarred from the

practice of law, and judges; and all proceedings for

reinstatement as an attorney and counselor at law shall be

brought, conducted and disposed of in accordance with the

provisions of this rule. Any committee authorized by any

regularly organized bar association or by the Ohio State Bar

Association shall investigate any matter referred to it or which

comes to its attention, and may cause a complaint to be filed

pursuant to this rule in cases where misconduct, contempt, or

mental iliness is found; provided, however, that nothing herein

shall affect disciplinary procedures of any regularly organized

bar association under the provisions of its constitution not

inconsistent with this rule.

The Board of Commissioners or any member thereof, the

Chairman of the Committee on Legal Ethics and Professional

Conduct of the Ohio State Bar Association, and the President,

Secretary or Chairman of the Grievance Committee of any

regularly organized local bar association in the State may call

upon any attorney and counselor at law or judge in the State

to assist in any investigation or to testify in any hearing before

the Board of Commissioners or any panel for which he would

not be bound to claim privilege as an attorney at law. No such

attorney and counselor at law or judge shall neglect or refuse

so to assist in any such investigation or so to testify.

in the event that a Grievance Committee of a local bar

association or the Committee on Legal Ethics and Professional

Conduct of the Ohio State Bar Association shall in the case of

a disciplinary investigation as provided for in this rule seek

determination of a procedural question, the principal officer

of a local bar association or the Chairman of its Grievance

-A-34—

Committee or the Chairman of the appropriate state bar

association committee shall direct a written inquiry to the

Chairman of the Board of Cornmissioners by filing it with the

secretary of the Board. Upon receipt of such written request,

the Chairman of the Board oif Commissioners may refer the

inquiry to a panel of three members of the Board. The written

request shall be documente:d with such facts, citations,

statutory references and other written data that may be of

assistance to make a determimation of the matter presented.

After the panel has completted its study of the problem

presented, the panel shall makie a written recommendation as

to solution of the question. Upon receipt of such report and

recommendation, the Chairman of the Board of

Commissioners shall promptly convene the members of the

Board who shall approve, reject, modify or otherwise dispose

of the panel’s recommendatiom. In the event that the question

presented requires immediate attention for decision, the

Chairman of the Board has thie discretionary power to waive

reference of the question to a panel, but shall submit the

question or questions presented to the entire Board for its

decision. (Effective February 15, 1971.)

(5) Definitions.

(a) Misconduct. Miscomduct shall mean any violation

of any provision of the oath of office taken upon

admission to the practice of law in this State, or any

violation of the Code of Professional Responsibility or

the Canons of Judicial Etthics as adopted by the Court

from time to time, disobedience of these rules or of the

terms of an order imposing a suspension for an indefinite

period from the practice of law, or the commission or

conviction of a crime involwing moral turpitude.

(b) Mental Iliness. Mental iliness shall mean the

condition defined in R. C. 5122.01 (A).

(6) Manner of Discipline. Each attorney and counselor at

law or judge found guilty of misconduct shall be disciplined.

The discipline of such persons shall be

(a) a permanent disbarment from the practice of law,

or,

(b) suspension for am indefinite period from the

practice of law subject only to reinstatement as

hereinafter provided, or,

(c) a public reprimand, or

— A-35 —

(d) a private reprimand.

(7) Effect of Discipline. A person disbarred or a person

who has voluntarily surrendered his license to practice shall

never thereafter be readmitted to the practice of law in this

State. A person who has been suspended for an indefinite

period from the practice of law and thereafter reinstated in the

manner hereinafter provided shall be disbarred upon being

found guilty of subsequent misconduct. A person who has

been publicly reprimanded for misconduct, upon being found

guilty of subsequent misconduct, shall be suspended for an

indefinite period from the practice of law or permanently

disbarred, depending upon the seriousness of such misconduct.

(8) The Complaint; Where Filed; By Whom Signed. A

complaint shall mean a formal written complaint alleging

misconduct or mental illness of one who shall be designated as

the Respondent. Six (6) copies of all such complaints shall be

filed in the office of the Secretary of the Board. Such

complaint shall not be accepted for filing unless it is signed by

one or more members of the Bar of Ohio in good standing

(who shall be counsel for the Relator) and supported by a

certificate in writing signed either by the Chairman of the

Committee on Legal Ethics and Professional Conduct of the

Ohio State Bar Association or by the President, Secretary, or

Chairman of the Grievance Committee of any regularly

organized local bar association in the State (which association

shall be deemed the Relator), certifying that said counsel are

duly authorized to represent said Relator in the premises and

have accepted the responsibility of prosecuting the complaint

to conclusion. Such certification shall constitute a

representation that, after investigation, the Relator believes

reasonable cause exists to warrant a hearing on such

complaint, and shall constitute the authorization of such

counsel to represent said Relator in the premises as fully and

completely as if designated and appointed by order of the

Supreme Court of Ohio with all the privileges and immunities

of an officer of such Court. The complaint may also, but need

not, be signed by the person aggrieved.

(9) Duty of the Board Upon Filing of the Complaint.

(a) Notice to Respondent. The Secretary of the Board

of Commissioners shall send a copy of the complaint by

registered mail to the Respondent with a notice requiring

him to file, within twenty (20) days after the mailing of

- A368 -

such notice, six (6) copies of his answer and to serve

copies thereof upon counsel of record named in the

complaint.

'(b) Suspension of Right to Practice Pending

Disposition of Misconduct Complaint. After an answer

has been filed or the time for answer has elapsed, the

Court shall entertain such recommendation as the Board

may make for the immediate suspension from the

practice of law pending disposition of the complaint if

the complaint alleges the conviction of a crime involving

moral turpitude supported by a certified copy of the

judgment entry of the Court ‘convicting the Respondent.

(c) Mental Iliness Suspension. After an answer has

been filed or the time for answer has elapsed, if the

complaint or answer alleges mental iliness supported by a

certified copy of a journal entry of a court of competent

jurisdiction adjudicating mental iliness, or if the Board

finds existing mental illness after an examination

provided in (d) hereof, the Board shall forthwith certify

the complaint in this Court and the Court may suspend

the Respondent from the practice of law.

(dj) Examination. \f the complaint or answer alleges

existing mental illness unsupported by a journal entry of

a court of competent jurisdiction or mental iliness is

otherivise placed in issue, the Board or panel may, on its

own motion or on motion by either party, order a

medical or psychiatric examination of Respondent by

one or more physicians, designated by the Board or

panel, whose findings shall be presented to the Board or

panel as evidence and made available to both parties.

fe) Termination. Any suspension under this section

may be terminated on Respondent's application to the

Board and a showing of removal of the cause for the

suspension, which is certified by the Board to, and

affirmed by, the Court.

(10) Hearing by Panel of Three Commissioners. After

Respondent’s answer has been filed, or the time ahs expired

within which Respondent was required to file such answer, a

formal hearing shall be held, upon reasonable notice, by a

panel of Commissioners appointed by the Chairman of said

Board of Commissioners, who shall designate one member of

such panel as chairman of the panel. Such panel shall consist

of three (3) Commissioners, no one of whom shall be a

resident of the district from which such complaint originated.

of such panel shall constitute a quorum for all

panel

(11) ptm ontop d te Dismissal or Private Reprimand.

if the panel finds that the complaint or evidence is insufficient

to base a charge of misconduct or that the complaint or

evidence supports a charge of misconduct for which a private

reprimand should be administered, the panei may order that

the complaint be dismissed of administer such private

reprimand at the time of the hearing. Such action shall be

reported to the Secretary of the Board of Commissioners who

shall give written notice of the action taken to the Board of

Commissioners, the Respondent, 2ii counsel of record, the

Ohio State Bar Association, and the local bar association or

associations of the county in which the Respondent resides

and maintains his office and the county from which the

complaint arose.

if a written request for a conference with the Supreme

Court of Ohio is made by the Relator within twenty (20) days

after the issuance of such noice, Relator, Respondent and a

member of the hearing panel will be called to confer with the

Court.

(12) Referral by Panel. \n the alternative, if the panel

determines that findings of fact and recommendations for

dismissal or private reprimand should be referred to the Board

of Commissioners for review and action by the full Board, the

panel may submit its findings of fact to the Board of

Commissioners and may recommend dismissal or private

reprimand in the same manner as providec in the following

sections of this Rule V with respect to paime reprimand,

ion or disbarment.

(13) Public Reprimand; Suspension or Permanent

Disbarment; Duty of Panel. \f the panel finds and determines

that the Respondent is guilty of misconduct and that public

reprimand, suspension for an indefinite period, or permanent

disbarment is merited, the panel shall make its certified report

of the proceedings before it, including its findings of fact and

~ ie...

recommendations, and shall file the same, together with the

transcript of testimony taken and an itemized statement of the

actual and necessary expenses incurred in connection with

such proceedings, with the Secretary of the Board of

Commissioners.

(14) Review by Entire Board of Commissioners, Board to

Administer Private Reprimand. Upon review, said Board of

Commissioners may refer the matter back to the panel for

further hearing or may order a further hearing to be presented

before said Board of Commissioners or may proceed upon the

certified report of the prior proceedings before the panel.

Upon the final review, the Board of Commissioners may

dismiss the complaint or find that the Respondent is guilty of

misconduct. If the Board of Commissioners determines that a

private reprimand shall be administered, it shall administer

such private reprimand. If the complaint is dismissed, or a

private reprimand is administered, such action shall be

reported to the Secretary of the Board of Commissioners, who

shall notify the same persons and organizations that would

have received notice if the complaint had been dismissed by

the panel that heard the matter.

(15) Public Reprimand; Suspension or Permanent

Disbarment; Duty of Board after Review. \f the Board of

Commissioners determines that a public reprimand, suspension

for an indefinite period from the practice of law or permanent

disbarment is merited, said Board of Commissioners shall

thereupon make a final certified report of such proceedings,

including its findings of fact and recommendations, and shall

file the same, together with the transcript of testimony taken

and an itemized statement of the actual and necessary

expenses incurred in connection with such proceedings, in the

office of the Clerk of this Court, and shall forthwith notify the

Respondent and all counsel of record of such aciton, enclosing

with such notice a copy of «the findings of fact and

recommendations and a copy of the statement of the actual

and necessary expenses incurred.

(16) Show Cause Order Issued by the Court to

Respondent. On the filing of such final report of the Board of

Commissioners, this Court shall issue to the Respondent an

order to show cause why the report of said Board of

Commissioners shall not be confirmed and a disciplinary order

entered. Notice of the order to show cause shall be served by

— A-39 -

the Clerk of this Court on the Respondent and all counsel of

record, personally or be registered mail.

(17) Response to Order to Show Cause and Objections.

The Respondent or Relator within twenty (20) days after the

issuance of an order to show cause may file objections to the

findings or recommendations of the Board of Commissioners

and to the entry of a disciplinary order or to the confirmation

of the report on which the order to show cause was issued, and

a brief in support of such objections, together with proof of

service of copies thereof on the Secretary of the Board of

Commissioners and on all counsel of record. All objections and

briefs shall be filed in the number and form required by rutes

of this Court for original actions.

(18) Answer Briefs. Answer briefs together with proof of

service shall be filed within fifteen (15) days after briefs in

support of objections have been filed. All briefs shall be filed

in the number and form required by rules of this Court for

original actions.

(19) Review by Court; Reimbursement for Expenses of

Board; Duty of Clerk on Entering Order. After hearing on

objection, or, if objections are not filed within the prescribed

time, this Court shall enter such order as it may find proper,

which may include provision for reimbursement of costs and

expenses incurred by the Board of Commissioners. Upon the

entry of any disciplinary order pursuant to this rule, the Clerk

of the Court shall mail certified copies thereof to counsel of

record, to the Board of Commissioners, to Respondent (at his

last known address), to the Ohio State Bar Association, to the

local bar association or associations in the county or counties

in which the Respondent resides and maintains his office and

the county or counties from which the complaint originated,

to the Presiding Judge of the Court of Common Pleas for such

county or counties, and to the Presiding Judge of the United

States District Courts in Ohio, the United States Court of

Appeals for the Sixth Circuit; and to the Supreme Court of the

United States.

\f a disciplinary order of the Court provides for a public

reprimand, the Clerk of this Court shall arrange for publication

thereof in the Ohio Bar publication of the Ohio State Bar

Association and in a publication, if any, of the Relator local

bar association.

lf a disciplinary order of the Court provides for a

— A-40 -

permanent disbarment or suspension for an indefinite period

from the practice of law, the Clerk of this Court shall arrange

for publication thereof in the official reports of this Court, in

the Ohio Bar publication of the Ohio State Bar Association

and in a publication, if any, of the Relator local bar

association.

(20) Proceedings Private; Exceptions. All proceedings and

documents relating to complaints and hearings theron and

proceedings in connection therewith shall be private except:

(a) Where the Respondent shall request in writing

that they be public or

(b) Where proceedings filed with the Supreme Court

of Ohio recommend the discipline of permanent

disbarment or suspension for an indefinite period, or

(c) Where any disciplinary matter is heard by the

Supreme Court of Ohio, other than in conference, on

objections to the findings or recommendations of the

Board of Commissioners.

(A copy of the findings, recommendations and actions of

the Panel and the Board of Commissioners in each case shall be

given to any member of the Court upon request.)

(21) Petition for Reinstatement. No petition for

reinstatement to the practice of law shall be entertained by

this Court and the same may not be filed in this Court, within

a period of two (2) years after the entry of an order

suspending for an indefinite period, the Petitioner from the

practice of law in this State or within a period of two (2) years

after the denial of a petition for reinstatement to the practice

of law filed by such Petitioner.

(22) Contents of Petition for Reinstatement. Subject to

the foregoing restrictions, any person who has been suspended

for an indefinite period from the practice of law and who

wishes to be reinstated may file his verified petition and

twenty (20) copies thereof with the Clerk of this Court,

setting forth

(a) the date when such suspension was ordered, and if

there was a reported opinion, the volume and page of the

official reports of this Court where such opinion appears;

(b) the dates all such prior petitions for reinstatement

were filed, denied or granted;

(c) the names of all persons and organizations, except

the Petitioner and the Board of Commissioners, who

~A-41

were, or would be, entitled, under this Rute, to receive

from the Clerk of this Court certified copies of the

disciplinary order of this Court against Petitioner

resulting in his suspension; and the name of the local bar

association or associations in the County in which he

resides at the time of the filing of the Petition and of

each County in which he proposes to maintain an office

if reinstated; and

(d) the facts upon which he relies to establish by clear

and convincing evidence that he possesses all the

qualifications, mental, educational and moral, which

would have been a requirement of an applicant for

admission to the Bar of Ohio at the time of his original

admission, and that he is now a proper person to be

readmitted to the Bar of Ohio, notwithstanding the

previous disciplinary action taken against him.

(23) Costs to be Deposited with Petition for

Reinstatement. Such petition shall be accompanied by a

deposit in an amount to be fixed by the Clerk, for probable

costs and expenses to be incurred in connection with said

proceedings, which shall include any amounts unpaid under

any prior order of this Court.

(24) Requisites for Reinstatement. No person shall be

reinstated unless he has established by clear and convincing

evidence that he possesses all of the qualifications, mental,

educational and moral, which would have been a requirement

of an applicant for admission to the Bar of Ohio at the time of

his original admission, and that he is now a proper person to

be readmitted to the Bar of Ohio, notwithstanding the

previous disciplinary action taken against the Petitioner. In

such case, the order of reinstatement may be conditioned

upon the Petitioner’s subsequently taking and passing a regular

bar examination of this Court and thereafter taking the

prescribed oath of office.

Paragraphs C and D of Seciton 6 of Rule | of the

Supreme Court Rules for the Government of the Bar of Ohio

shall not apply to any petitioner with respect to whom such an

order of reinstatement may have been issued.

(25) Petition for Reinstatement Referred to Board of

Commissioners. Unless denied forthwith for insufficiency in

form or substance, the Clerk shall forward five (5) copies of

the petition to the Secretary of the Board of Commissioners

~~).

and such petition shall be deemed to be referred, without

court order, to the Board of Commissioners to hold a hearing

or hearings, and take and report evidence relevant to the

rehabilitation of the Petitioner and his possession of all the

qualifications, mental, educationa! and moral, required of an

applicant for admission to the Bar of Ohio at the time of his

original admission.

(26) Hearing of Petition by Panel of Three; Hearing Shall

Be Public; Who May Appear; Appeal to Court From Denial cf

Petition by Board of Commissioners. The Chairman of the

Board of Commissioners shall appoint a hearing panel of three

(3) Commissioners no one of whom shall be a resident of the

district in which the Petitioner resides or of the district in

which he resided at the time of his suspension and said panel

shall conduct a hearing or hearings upon such petition.

Reasonable notice of any hearing shall be given to the

Petitioner or his counsel and to all persons or organizations

referred to in Section (22) (c). Such hearing shall be public.

Any interested person, any member of the Bar, and any

representative of any local bar association or of the Ohio State

Bar Association may appear before the hearing panel in

support of or in opposition to the petition.

The hearing panel shall make and certify a report of the

proceedings before it, including its findings of fact and

recommendations, to the Board of Commissioners; and all

proceedings before such panel and the Board of

Commissioners shall, whenever appropriate, be governed by

the provisions hereinbefore contained governing disciplinary

proceedings, including proceedings in this Court or an issuance

of an order to show cause why the final report of the Board of

Commissioners should not be confirmed.

The Board, in its discretion, may recommend that the

Petitioner be required to take and pass one of the regular bar

examinations as a condition to readmission. If the final report

should recommend denial of the petition, the Petitioner shall

have ten (10) days from receipt of notice of the date of filing

such report to file objections thereto and brief in support

thereof.

If the final report should recommend granting of the

petition, any person or organization referred to in Section (22)

(c) shall have ten (10) days from the receipt of notice of filing

of such report to file objections to the recommendations and

~ Aa ~

brief in support thereof. The Court shall thereupon enter an

appropriate order, which may include such provisions for

reimbursement of the costs and expenses incurred in

connection with the proceedings as the Court shall deem just.

(27) Manner of Service of Notices, etc. Whenever

provision is made for the service of any notice, order, report or

other paper or copy thereof upon any Respondent or

Petitioner in connection with any proceeding involving a

complaint or a petition for reinstatement, service may be made

upon counsel of record for such Respondent or Petitioner,

either personally or by registered mail.

(28) Quorum of Panel or Board. A majority of the

members of the Board of Comm ‘ssioners or of a hearing panel

shall constitute a quorum for all purposes and the action of a

majority of those present comprising such quorum shall be the

action of the Board of Commissioners or of such hearing

panel.

(29) Clerk is Agent for Service of Notices on Nonresident

Attorney. Any nonresident of this State, having been admitted

as an attorney and counselor at law by the rules of this Court,

or any resident of this State, having been admitted as an

attorney and counselor at law by the rules of this Court, who

subsequently becomes a nonresident or conceals his

whereabouts, by such admission to the practice of law within

this State, makes the Clerk of this Court his agent for the

service of any notice provided for in any proceeding instituted

before the Board of Commissioners against such attorney and

counselor at law or judge, pursuant to this Rule.

(30) Manner of Service on Clerk; Record of Such Service

Not a Public Record. All such notices shall be served by the

Secretary of the Board of Commissioners upon the Clerk of

this Court by leaving at the office of said Clerk a true and

attested copy of such notice and any accompanying document

and by sending to the Respondent, by registered mail, postage

prepaid, return receipt requested, a like, true and attested

copy, with an endorsement thereon of the service, upon said

Clerk of this Court, addressed to such Respondent at his last

known address. The postmaster’s receipt for the payment of

such registered postage shall be attached to and made a part of

the return of service of such notice by the Secretary. The

panel or Board of Commissioners or Court before which there

is pending any proceeding in which notice has been aiven as

=. Pe

provided in this section may order such continuance as is

necessary to afford the Respondent reasonable opportunity to

appear and defend. The Clerk of the Court shall keep a record

of the day and hour of service upon him of such notice and

any accompanying document, which shall not be a public

record in the office of said Clerk.

(31) Power to Issue Subpoenas. \n investigations and

proceedings under this rule, upon application by the

Chairman, Vice Chairman, Secretary, or Counsel of the

Committee of Legal Ethics and Professional Conduct of the

Ohio State Bar Association, or by the President, Secretary or

Chairman of the Grievance Committee of any regularly

organized local bar association in the state authorized to sign a

certificate under Section (8) hereof, or by the Respondent or

Relator, each member of the Board of Commissioners and its

Secretary shall have power to issue subpoenas and to cause

testimony to be taken under oath before the Committee on

Legal Ethics and Professional Conduct of the Ohio State Bar

Association, or any subcommittee thereof, or before the

Grievance Committee of any regularly organized local bar

association in the State, or before a hearing panel of the Board

of Commissioners. All such subpoenas shall be issued in the

name and under the seal of this Court and shall be signed by a

member of the Board of Commissioners or its Secretary and

served as provided by statute.

(32) May Order Depositions. The Secretary of the Board

of Commissioners may order testimony of a witness to be

taken by deposition within or without this State in the manner

prescribed for the taking of depositions in civil actions, and

such depositions may be used to the same extent as permitted

in civil actions.

(33) Effect of Refusal to Testify. The refusal or neglect

of the person subpoenaed as a witness to obey a subpoena, to

attend to be sworn cr to affirm, or to answer any proper

question shall be deemed to be contempt of the Court and

shall be punishable accordingly.

(34) Rules of Evidence. All rules of evidence shall be

observed in the conduct of all hearings, and the Respondent

may be represented by counsel, who shall enter formal

appearance.

(35) Docket of .Complaints. The Secretary of the Board

___----—-ef-Edmmissioners shall keep a docket of each complaint and

— A-45 -

of all proceedings thereon, which shall be retained

permanently as a part of the records of his office.

(36) Boara May Prescribe Rules. The Board of

Commissioners may, subject to the prior approval of this

Court, adopt other rules and regulations not inconsistent

herewith.

(37) Rule to be Liberally Construed. The process and

procedure under this Rule and other regulations approved by

this Court shall be as summary as reasonably may be.

Amendments to any complaint, notice, answer, objections,

report or order to show cause may be made at any time prior

to final order of the Court. The party affected by such

amendment shall be given reasonable opportunity to meet any

new matter presented thereby. No investigation or procedure

shall be held to be invalid by reason of any nonprejudicial

irregularity or for any error not resulting in a miscarriage of

justice. This Rule and such regulation relating to investigations

and proceedings involving complaints of misconduct and

petitions for reinstatement shall be liberally construed for the

protection of the public, the Courts and the legal profession

and shall apply to all pending investigations and complaints so

far as may be practicable, and to alli future investigations,

complaints and petitions whether the conduct involved

occurred prior or subsequent to the amendment of this Rule.

To the extent that application of this amended Rule to such

pending proceedings may not be practicable, the rules and

regulations in force at the time this amended Rule became

effective shall continue to apply.

~ A-46 -

APPENDIX E

RULES

Pursuant to the provisions of Section 36 of Rule V of the

Supreme Court Rules for the Government of the Bar of Ohio,

the Board of Commissioners on Grievances and Discipline

adopts the following rules:

(1) Within the period of time permitted for an answer to

the complaint, Respondent may file a motion or demurrer

supported by brief and affidavits if appropriate A bref and

affidavits if appropriate in opposition to such motion or

demurrer may be filed within twenty days after tiling of such

motion or demurrer. No oral hearing will be granted, and

rulings will be made by the Chairman of the Board or any

member designated by the Secretary of the Board, which

ruling shall be the ruling of the Board. No motion or demurrer

to the complaint shall be considered unless made in

accordance with this rule.

(2) Motions of either party subsequent to the

appointment of a panel shall be ruled upon by the Chairman

of the panel, or a member thereof.

(3) For good cause shown, the Chairman of the Board,

or, subsequent to the appointment of a panel, the Chairman of

the panel or a member thereof, may grant extensions of time

for the filing of any pleading, motion, brief or affidavit, either

before or after the time permitted for filing.

(4) Depositions taken pursuant to Section 32 of Gov. R.

V shall be filed with the Secretary of the Board in thy manner

and within the time required by Civ. R. 27; 28; 30; 32.

(5) The complaint shall allege the specific misconduct

detailed in Section 5(a) of Gov. R. V or Gov. R. IV (including

the particular canon of professional or judicial ethics where

appropriate) alleged to have been violated by the Respondent.

The panel and Board shall not be limited by such specification.

(6) Proof of service shall be required with any pleading

subsequent to the complaint, motion, brief, or affidavit.

— A-47 -

APPENDIX F

PRE-HEARING INSTRUCTIONS

For the purpose of facilitating disciplinary procedures under

Gov. R. V, the Board of Commissioners on Grievances and

Discipline has adopted these pre-hearing instructions. These

instructions are advisory only, but the Board suggests that

counsel for each party review them carefully and wherever

possible to comply with the suggestions herein contained.

Copies have been mailed to each interested party to this

proceeding.

(1) Disciplinary Procedure in Ohio is governed by the

provisions of .Rule V of the Supreme Court Rules for the

Government of the Bar of Ohio. It is suggested that counsel

familiarize themselves with this Rule and with the provisions

of Rule IV governing professional conduct.

A helpful reference is ‘“‘Lawyer Discipline - The Ohio

Story’, written by Professor Oliver Schroeder, Jr., and

published by the Ohio Legal Center Institute.

(2) Attached is a form of Opening Statement generally

used by panels with some variations to fit the particular case.

Your attention is especially called to the desirability of

entering into stipulations of fact wherever possible anc any

stipulations concerning authenticity of documents, the

substitution of copies for originals, etc. We require that

counsel for the parties confer sufficiently in advance of the

hearing date to reach agreement on stipulation wherever

possible, in order that the hearing may be expedited. Upon

timely request of either party or the panel, the Chairman of

the panel may conduct a pre-trial conference.

(3) Section 34 of Gov. R. V provides that all rules of

evidence shall be observed in the conduct of all hearings. The

panel is, of course, composed of attorneys and technical

objections to the form of questions should be avoided, if

possible.

(4) Section 2 of Gov. R. V requires the Board to “inquire

into. . .complaints of misconduct. ...’’. You may anticipate,

therefore, that the panel members may question witnesses or

may require either Relator or Respondent to produce

witnesses or documents for their consideration.

— A-48 —

(5) Since proceedings are private under Gov. R. V except

upon petition for reinstatement or upon Respondent's request,

the Board requires that Relator make arrangements for a

bailiff or sergeant-at-arms for the panel in order to assure

privacy. Relator shall also arrange for the services of a court

reporter.

(6) Counsel for each party may be asked at the

conclusion of the hearing for their recommendation of

appropriate discipline in the event the Board makes a finding

of misconduct. In the instance of a petiticn for reinstatement,

counsel for all parties entitled to notice under Section 22(C)

of Gov. R. V will be asked for recommendations. Counsel

should be prepared to make such recommendations.

(7) In cases wherein a conviction of a crime involving

moral turpitude is alleged, the Board will inquire into any

matter relevant to the appropriate degree of discipline,

including, but not limited to, the facts with respect to the

crime for which Respondent was convicted.

(8) At the conclusion of the hearing, the transcript will

be filed with the Secretary of the Board and notice therof

given by the Secretary of the Board to each party. Copies may

be ordered by any party at the expense of the party requesting

the same. Arrangements for obtaining copies of a portion of

the transcript may be made with the Secretary of the Board at

the expense of the party requesting the same.

(9) Six copies of briefs with proof of service will be filed

within twenty (20) days after filing of the transcript. Seven (7)

days after the due date of briefs, reply briefs are due. For good

cause, extensions of time for briefs may be granted by the

Chairman or any panel member.

— A-49 —

APPENDIX G-1

May 21, 1973

Fred M. Ezenson

Attorney at Law

1100 Gem City Savings Bidg.

Dayton, Ohio 45402

and

RICHARD G. SNELL

Attorney at Law

2260 Winters Bank Bldg.

Dayton, Ohio 45402

Re: Complaint No. 181 - Dan D. Weiner

‘ Board of Commissioners on Grievances

and Discipline of the Supreme Court

of Ohio

Dear Fred and Dick: °

Please be advised that ' am in receipt of complaint

number 181 filed May 3rd, 1973 by the two of you setting

forth six alleged charges against me constituting misconduct.

In conversing with Judge Radcliff, | understand that

there are no procedural rules established permitting the filing

of a motion requesting a Bill of Particulars as to each specific

paragraph set forth, however, he suggested that | write the

attorneys representing the Dayton Bar Association and request

that | be furnished with a complete breakdown of the charges

as they pertain to each specific allegation.

| would appreciate your furnishing me the requested

information as early as possible so that | will be in a position

to know the specific charges made against me and then be ina

position to adequately answer them at the time of the hearing.

| would also appreciate your acknowledging my letter and

advising me by return letter as to when | might receive the

requested information.

— A-50 -

| also indicated to Judge Radcliff that the attorney that |

comtemplate contacting relative to representation of me in

this matter is out of the state until the middle of June and am

enclosing herewith, a copy of a motion requesting an

extension until June 30th to file an answer to the subject

complaint.

Thanking you for your cooperation and courtesies

extended herein, | remain

Most sincerely yours,

Dan D. Weiner

Encl:

CC: Judge William Radcliff

DDW/ms

— A-51 —

APPENDIX G-2

May 30, 1973

Mr. Dan D. Weiner

Attorney at Law

Suite 301

25 South Main Bldg.

Dayton, Ohio 45402

Re: Complaint No. 181; Dan D. Weiner; Board of

Commissioners on Grievances and Discipline

of the Supreme Court of Ohio

Dear Dan:

Fred Izenson and | discussed your letter of May 21,

wherein, you requested a complete breakdown of the charges

against you as they pertained to each specific allegation.

Both Fred and | believe that we should not furnish this

information to you for two reasons. First of all, you have been

furnished with copies of all written complaints filed against

you in the past by the Dayton Bar Association, you have been

kept informed of the investigations by the Dayton Bar as they

proceeded, and you have met with the ethics committee of the

Dayton Bar Association concerning these charges and

discussed the complaints with the members of the committee.

In addition, since there are no procedural rules

established concerning a Bill of Particulars, we would not wish

to limit the scope of our prosecution in any way by narrowing

or delineating the charges further at this time. Both Fred and |

will be glad to discuss the charges with your attorney at any

time.

Very truly yours,

Iddings, Jeffrey & Donnelly

By

Richard G. Snell

RGS/pls

cc: Judge William Radcliff

Fred M. Izenson

— A-52 —

APPENDIX G-3

June 5, 1973

Richard G. Snell

Attorney at Law

2260 Winters Bank Building

Dayton, Ohio 45402

Re: Dan D. Weiner, Respondent - Dayton

Bar Association, Relator

Case No. 181

Dear Dick:

Enclosed herewith, is the original copies of the

Interrogatories which | would appreciate your answering

relative to the above subject case.

Thanking you for your cooperation and courtesies

extended in this matter, | remain

Most sincerely yours,

Dan D. Weiner

Encl:

DDW/ms

~ AS

APPENDIX G-4

June 18, 1973

Mr. Dan D. Weiner

Attorney at Law

Suite 301

~ 25 South Main Building

Dayton, Ohio 45402

Re: Compiaint against Dan D. Weiner, Respondent;

Dayton Bar Association, Relator; Case No. 181

Dear Dan:

| have your letter of June 5, 1973, together with the

eleven interrogatories which you request the Dayton Bar

Association to answer in writing and under oath within 28

days of the date of service.

In your letter of May 21, addressed to Fred Izenson and

me, you requested a complete breakdown of the charges

against you as they pertained to each specific allegation. In

my reply to you of May 30, 1973, | pointed out that we did

not believe we should furnish this information to you for the

reason set forth in the letter.

For the same reasons set forth in my letter of May 30,

1973, we do not intend to answer the interrogatories without

a specific ruling from the Board of Commissioners on

Grievances and Discipline.

Very truly yours,

Richard G. Snell

RGS/pls

cc: Fred M. Izenson

Judge William Radcliff

— A-54-

APPENDIX H

BEFORE THE BOARD OF COMMISSIONERS ON GRIEVANCES

AND DISCIPLINE

OF

THE SUPREME COURT OF OHIO

In re

Opp cein! a cain?

uit 301, 25 Ss h Mai

Dayton, Ohio 45402

\ddress

RESPONDEN! COMPLAINT

AND

CERTIFICATE

Yayton Bar Association

Name ot Bar Assocstion

Suite 691, 2 South Main Street Rule NVILL of Supreme

. a Court of Ohio

Dayton, Dhic 45462

Address

— A-55 —

Now comes the Relator and alleges that Dan D. Weiner an

Attorney at Law, duly admitted to the practice of law in this

State of Ohio is guilty of the following misconduct:

1. Willful breach of Canon 1, Ethical Consideration 1-5 in

that Respondent is guilty of intemperate and undignified

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 and for the

legal system as aforesaid constituted conduct that is prejudicial

to the administration of justice.

3. Willful breach of Canon 2, Disciplinary Rule 2-106

Fees for Legal Services (A) in that Respondent entered 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 Respondent

withdrew from employment without taking reasonable steps

to avoid foreseeable 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 tribunal.

6. Willful breach cf Canon 9, Disciplinary Rule 9-102 in

that Respondent caused funds to 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.

Counsel for Relator

Richard G. Snell

2260 Winters Bank Tower, Dayton, O. 45402

(Name and Address of Counsel to be Typed)

Fred M. Izenson

1900 Winters Bank Tower, Dayton, O. 45402

— A-56 —

CERTIFICATE

The undersigned President of the Dayton Bar Association

hereby certifies that Fred M. |zenson and Richard G. Snell are

duly authorized to represent Relator in the premises and have

accepted the responsibility of prosecuting the complaint to its

conclusion. After investigation, Relator believes reasonable

cause exists to warrant a hearing on such complaint.

Dated: April, 1973

President, Dayton Bar Association

(Title)

RULE XVIII

Section (8)

THE COMPLAINT, BY WHOM SIGNED. A complaint, as

the term is used herein, shall mean a formal written complaint

alleging misconduct or mental iliness of one who shall be

designated therein as the Respondent. Such complaint shall

not be accepted for filing unless it is signed by one or more

members of the Bar of Ohio in good standing (who shall be

counsel for the Realtor) and supported by a certificate in

writing signed either by the Chairman of the Committee on

Legal Ethics and Professional Conduct of the Ohio State Bar

Association or by the President, Secretary or Chairman of the

Grievance Committee of any regularly organized local bar

association in the State (which association shall be deemed the

Relator), certifying that said counsel are duly authorized to

represent said Relator in the premises and have accepted the

responsibility of prosecuting the complaint to conclusion.

Such certification shall constitute a representation that, after

investigation, the Relator believes reasonable cause exists to

warrant a hearing on such complaint. The complaint may also,

but need not, be signed by the person aggrieved.