2019 Ohio 5288
Ohio2019Background
- Jerry J. Bishop II, an Ohio attorney since 1979, represented elderly clients Isadore and Helen Urbanski for estate planning beginning in 2013.
- In December 2013 the Urbanskis signed a handwritten change-of-beneficiary form naming Bishop’s wife (by her maiden name) and Bishop’s sons’ Boy Scout troop as contingent beneficiaries of a New York Life annuity; the Urbanskis’ wills were executed the next day with Bishop and his wife as witnesses.
- Bishop later prepared probate for Helen’s estate after she designated herself primary beneficiary in 2015 and after Isadore’s death in 2016; a friend who discovered a PNC letter filed a grievance alleging the 2013 change.
- Bishop initially denied involvement and later testified he had “virtually no recollection” of the 2013 change; he ultimately admitted the handwriting on the form was his and claimed a defense under Prof.Cond.R. 1.8(c) based on a purported close familial relationship.
- The Board found violations of Prof.Cond.R. 1.8(c), 8.4(h), 8.1(b), and 8.4(c) (preparing a gift to the lawyer’s spouse, conduct reflecting poorly on fitness, failing to disclose material facts to a disciplinary authority, and false/misleading testimony), rejecting Bishop’s relatedness defense.
- The Board recommended a two-year suspension with one year stayed; the Supreme Court of Ohio adopted the findings and imposed that sanction (second year stayed on condition of no further misconduct), taxing costs to Bishop.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether preparing a change-of-beneficiary naming the lawyer’s spouse violated Prof.Cond.R. 1.8(c) | Bishop drafted the form naming his wife as contingent beneficiary — prohibited when not related | Bishop claimed Prof.Cond.R. 1.8(c)(1) exemption based on a close familial relationship with the clients | Violated R.1.8(c); exemption rejected because Bishop and wife were not related to the clients |
| Whether the beneficiary designation constituted conduct reflecting on fitness (Prof.Cond.R. 8.4(h)) | Designation of attorney’s wife as beneficiary was egregious and undermined fitness | Bishop downplayed conduct as permissible given relationship | Violated R.8.4(h); designation was sufficiently egregious to warrant separate violation |
| Whether false statements/omissions to disciplinary authorities violated R.8.1(b) and R.8.4(c) | Bishop falsely testified he had virtually no recollection, omitting material facts | Bishop maintained genuine lack of recollection during proceedings | Violated R.8.1(b) and R.8.4(c); testimony found false/misleading |
| Appropriate sanction for the misconduct | Suspension comparable to similar cases, with aggravation for dishonesty warrants longer suspension | Defense urged mitigation and reliance on cases with one-year or shorter suspensions | Two-year suspension imposed with second year stayed on condition of no further misconduct; costs taxed to Bishop |
Key Cases Cited
- Disciplinary Counsel v. Bricker, 137 Ohio St.3d 35 (2013) (attorney conduct naming self-related parties as beneficiaries can reflect on fitness)
- Toledo Bar Assn. v. Cook, 97 Ohio St.3d 225 (2002) (one-year suspension, with part stayed, for drafting testamentary instrument benefiting attorney-related entity)
- Disciplinary Counsel v. Kelleher, 102 Ohio St.3d 105 (2004) (one-year suspension with partial stay for drafting trust benefiting attorney’s family)
- Mahoning Cty. Bar Assn. v. Theofilos, 36 Ohio St.3d 43 (1988) (one-year suspension for attorney who derived significant benefit from client via wills/accounts)
- Disciplinary Counsel v. Shaw, 126 Ohio St.3d 494 (2010) (two-year suspension with one year stayed for naming attorney’s children as beneficiaries and other conflicts)