COLUMBUS BAR ASSOCIATION v. SCHLOSSER; COLUMBUS BAR ASSOCIATION v. ELSASS
Nos. 95-375 and 95-376
Supreme Court of Ohio
December 20, 1995
74 Ohio St.3d 174
[Cite as Columbus Bar Assn. v. Schlosser, 1995-Ohio-14.]
(Nos. 95-375 and 95-376—Submitted September 26, 1995—Decided December 20, 1995.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Supreme Court, No. 93-47.
{¶ 1} On August 16, 1993, relator, Columbus Bar Association, filed a complaint with the Board of Commissioners on Grievances and Discipline of the Supreme Court (“board“) against respondents, Jacob A. Schlosser of Columbus, Ohio, Attorney Registration No. 0001381, and Tobias H. Elsass of Columbus, Ohio, Attorney Registration No. 0024436. The complaint charged respondents with violations of
{¶ 2} According to the evidence, on May 8, 1986, Bonita Barbery introduced Emma Gazarek, an eighty-nine-year-old widow, to Schlosser. Barbery had met Gazarek when Barbery came upon Gazarek walking on West Broad Street in Columbus with swollen feet and carrying a heavy load. Barbery offered her a ride home; Gazarek lived in an apartment just off Broad Street. Barbery visited with Gazarek several times over a period of a couple of weeks. On one occasion, Barbery met an individual to the husband of whom Gazarek had granted a power of attorney and whom Gazarek did not trust. Tо help free Gazarek from these individuals, Barbery took Gazarek to the Columbia Heights United Methodist Church. The church pastor referred her to Schlosser.
{¶ 3} On this occasion, Schlosser prepared a dоcument to revoke the power of attorney and, on Gazarek‘s instructions, prepared a will for Gazarek. In the will, Gazarek named Barbery and the Columbia Heights United Methodist Church as equal beneficiaries of her estate. Barbery expressed a lack of interest in being named a beneficiary, but Gazarek nevertheless executed this will. Schlosser also drafted a document that named Barbery as Gazarek‘s attorney-in-fact.
{¶ 4} Gazarek then took up residence with Barbery‘s mother, who lived near Barbery in Mount Sterling. On May 19, 1986, Gazarek returned to Schlosser‘s office and directed him to draft a new will naming Barbery and Barbery‘s mother as equal beneficiaries of her estate, removing the church from the will.
{¶ 5} Gazarek, before long, had a falling out with Barbery and her mother and decided to move back to Columbus. On June 17, 1986, Barbery brought
{¶ 6} On June 19, 1986, Elsass, in assisting Gazarek, filed an application with the Franklin County Probate Court to appoint Schlosser as guardian for the estate and person of Gazarek. In the course of applying for the guardianship, Elsass sent Gazarek to Dr. Evan Halas for an evaluation. Dr. Halas reported that:
“On examination she showed some memоry impairment but the most striking aspect of her mental disorder was a paranoid distrust and secretiveness leading to misinterpretation of events around her, hence the drifting lifestyle. From a clinical standpoint shе would fit into the category of Organic Mental Disorder with paranoid features.
“In light of the mental and physical impairment, and with her poor judgment resulting from mental disorder, I would recommend that a guardian be assignеd for the management of her affairs.”
{¶ 7} On June 25, 1986, the court appointed Schlosser as guardian of the person and estate of Gazarek; her estate totaled approximately $150,000. Schlosser servеd as Gazarek‘s guardian, and Elsass as the attorney for the guardianship, until Gazarek‘s death of pancreatic cancer on December 11, 1991. Schlosser and Elsass took charge of Gazarek‘s affairs, рaying her bills and preserving her estate. Monthly, Schlosser, or someone from his office, personally delivered money to Gazarek for an allowance. At her death, Gazarek‘s estate was worth aрproximately $161,000. Schlosser and Elsass each charged fees for each one‘s service to the guardianship. They aggregated the fees and divided the total equally.
{¶ 8} In early July 1986, Gazarek informed Schlossеr that she desired to write another will. He had her contact Elsass, who sent an associate and a law clerk to interview her.
{¶ 9} She directed the associate lawyer to draft a will naming Schlosser, his
{¶ 10} Later, Gazarek contacted Elsаss and directed him to draft another will for her. In this will, Gazarek deleted Elsass‘s law clerk as beneficiary and named Schlosser and his secretary as equal beneficiaries. Gazarek signed this will on November 6, 1986, and Schlоsser received a copy of it. Gazarek signed no further wills during her life.
{¶ 11} At Gazarek‘s death, Elsass filed the will with the probate court to administer Gazarek‘s estate. In proceeding with this, Elsass discovered heirs that Gazarek had not mentioned. These heirs filed a will contest challenging the November 1986 will, alleging undue influence on Gazarek by Schlosser and Elsass.
{¶ 12} Probate Judge Lawrence A. Belskis, on reviewing the will contest, remembered that he had represented Gazarek when he was in private practice and recused himself from the case. In any event, the conduct of Elsass and Schlosser in drafting wills naming Schlosser and his secretary as beneficiaries appeared to him to be improper. Belskis, based on his dealings with Gazarek, believed that she was a vulnerable individual and that Schlosser and Elsass had taken advantage of her. Consequently, he wrote a letter to relator complaining about these circumstances.
{¶ 13} After the hearing, the panel concluded that Schlosser and Elsass had violated
{¶ 14} As to Schlosser, the panel ruled that he erred in allowing Gazarek to name him and his secretary as beneficiaries in a six-figure will after knowing her for only several weeks. He never talked to her or Elsass either about her reasons for naming him or about the ethical propriety of doing so. The panel concluded that he should have informed Elsass about the previous two wills and “her proclivity to change her wills based upon the circumstances and who was patronizing her at the time. He relied upon Elsass as being a disinterested, independent person when he was clearly not.” Two members of the panel found a public reprimand of Schlosser and Elsass to be an appropriate sanction. The panel chair dissented and recommended a six-month suspension for both attorneys.
{¶ 15} The board adopted the findings of fact and conclusions of the panel. However, it adopted the recommendation of the panel chair. The board, accordingly, recommended that Schlosser and Elsass be suspended from the practice of law in Ohio for six months.
Bruce A. Campbell, Michael J. Hardesty and Gail D. Patrick, for relator.
Messerman & Messerman Co., L.P.A. and Gerald A. Messerman, Lewis Williams and John J. Duffey, for respondent Schlosser.
Cooper, Walinski & Cramer, Cary Rodman Cooper and Richard S. Walinski; Moots, Cope & Stanton and Benson A. Wolman, for respondent Elsass.
Per Curiam.
{¶ 16} After full review of the record, we agree with the board‘s findings,
{¶ 17} Nevertheless, we conсlude that the respondents’ violations of
Judgment accordingly.
DOUGLAS, ACTING C.J., HARSHA, WRIGHT, RESNICK, F.E. SWEENEY and COOK, JJ., concur.
PFEIFER, J., dissents and would dismiss the causes.
WILLIAM H. HARSHALL III, J., of the Fourth Appellate District, sitting for MOYER, C.J.