2015 Ohio 237
Ohio2015Background
- Richard G. Ward (admitted 1986) joined Drew & Ward (his father Dick Ward was a long‑time partner) and assisted on matters for long‑time client John F. “Bud” Koons, who controlled CIC and related trusts.
- After Koons’s death (2005), Ward reviewed trust records (Trust B, benefiting the Cundall family) and then agreed to represent Michael Cundall in litigation against Koons’s estate and related trustees on a contingent‑fee basis (eventually 50%).
- The Board found Ward had access to and used Drew & Ward’s confidential information about Koons’s business, trusts, and CIC valuation to develop claims against Koons’s interests and to solicit Cundall, without Koons’s consent.
- Separately, Ward received $113,076.79 at a 2003 real‑estate closing for Ann Cundall, deposited funds into his own accounts and invested most of it in his personal securities account, later returning the money in installments with interest.
- The panel and Board found violations for (a) using client confidences to the former client’s disadvantage, (b) accepting employment that impaired independent professional judgment, (c) dishonesty/deceit in handling the Cundall funds, and (d) failing to keep client property separate; Ward paid a malpractice settlement and made restitution.
- The Supreme Court adopted the Board’s findings (dismissing some alleged counts), found violations of DR 4‑101(B)(3), DR 5‑101(A)(1), DR 9‑102(A), and DR 1‑102(A)(6), and suspended Ward from practice for one year; costs taxed to Ward.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Use of former‑client confidences | Ward used Drew & Ward’s confidential Koons information to Cundall’s advantage and Koons’s detriment. | Ward contended he was not Koons’s lawyer, and any use was permissible; he relied on Kala analysis and ethics hotline. | Court: Ward had access to and used firm confidences; violation of DR 4‑101(B)(3) proven. |
| Conflict of interest / independent judgment | Ward’s personal motive (to vindicate his father) and financial interest impaired his professional judgment in representing Cundall. | Ward argued sincere belief in merits and firm approved representation after memo; no impairment. | Court: Ward’s personal motives affected judgment; violated DR 5‑101(A)(1) and conduct reflected adversely on fitness to practice. |
| Commingling / mishandling client funds (Ann Cundall) | Ward deposited sale proceeds into personal accounts and invested them, returning funds slowly — misappropriation/commingling. | Ward claimed he acted as qualified intermediary for a 1031 exchange and deposited funds appropriately. | Court: Board’s credibility findings favored Cundalls; Ward violated DR 9‑102(A) and DR 1‑102(A)(4)/(6) (dishonesty and adverse reflection). |
| Dishonesty / conduct prejudicial to administration of justice | Filing suit and disclosures were dishonest/misleading and prejudicial. | Ward provided research and authority to partners; filing was not frivolous and was litigated on merits/timeliness. | Court: Dismissed allegations under DR 1‑102(A)(4) and (A)(5) because relator didn’t meet clear‑and‑convincing standard for deceit or prejudice to administration of justice. |
Key Cases Cited
- Kala v. Aluminum Smelting & Refining Co., 81 Ohio St.3d 1 (Ohio 1998) (adopted three‑part test for presumption of shared confidences when counsel changes sides)
- Disciplinary Counsel v. Yurich, 78 Ohio St.3d 315 (Ohio 1997) (using client confidences to third parties without consent is a disciplinary violation)
- Cundall v. U.S. Bank, 122 Ohio St.3d 188 (Ohio 2009) (statute‑of‑limitations disposition of Cundall claims on appeal)
- Disciplinary Counsel v. Cicero, 134 Ohio St.3d 311 (Ohio 2012) (disclosure of prospective‑client confidences warranted actual suspension)