76 Ohio St. 3d 87 | Ohio | 1996
Lead Opinion
Our review of the record supports the board’s findings of misconduct and its recommendation that respondent be indefinitely suspended from the practice of law.
I
DR 2-106(A)
DR 2-106(A) provides: “A lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee.” The record fully supports the board’s finding that respondent violated DR 2-106(A) by attempting to collect $150,000 in attorney fees from Bogovich’s estate. There was no litigation surrounding the estate, the estate was not particularly complex, and respondent
II
DR 1-102(A)(6)
DR 1-102(A)(6) prohibits an lawyer from engaging in conduct that adversely reflects on his or her fitness to practice law. This court has determined, in a number of previous cases, that the provisions of DR 1-102(A)(6) are implicated where, as here, an attorney prepares a will for a client in which the attorney is named as a beneficiary of the client’s estate. See, e.g., Mahoning Cty. Bar Assn. v. Theofilos (1988), 36 Ohio St.3d 43, 521 N.E.2d 797 (attorney’s license suspended for one year for violating DR 1-102[A][6] by preparing a will for an unrelated client in which the attorney and his son were named as sole beneficiaries, and for being named in survivorship capacity on client’s joint and survivorship bank accounts); Disciplinary Counsel v. Slavens (1992), 63 Ohio St.3d 162, 586 N.E.2d 92 (attorney’s license indefinitely suspended for, among other things, violating DR 1-102[A][6] by drafting an unrelated and vulnerable client’s will in which the attorney and his children were named beneficiaries); and Cincinnati Bar Assn. v. Clark (1994), 71 Ohio St.3d 145, 642 N.E.2d 611 (attorney’s license suspended for two years with one year of the sanction suspended for, among other things, violating DR 1-102[A][6] by drafting a will for an unrelated client to benefit the attorney or the attorney’s family).
Additionally, EC 5-5 of the Code of Professional Responsibility provides that “[o]ther than in exceptional circumstances, a lawyer should insist that an instrument in which his client desires to name him beneficially be prepared by another lawyer selected by the client.” Although EC 5-5 is an ethical consideration and, thus, is only aspirational in character (see Preface, Code of Professional Responsibility), a reading of Theofilos, Slavens and Clark, supra, makes it abundantly clear that an attorney who fails to observe the standards embodied in EC 5-5 runs a grave risk of being found in violation of DR 1-102(A)(6) or other Disciplinary Rules. In Krischbaum v. Dillon (1991), 58 Ohio St.3d 58, 62-63, 567 N.E.2d 1291, 1296, a case that did not involve attorney discipline, this court made the following relevant observations with respect to EC 5-5:
“A client’s dependence upon, and trust in, his attorney’s skill, disinterested advice, and ethical conduct exceeds the trust and confidence found in most fiduciary relationships. Seldom is the client’s dependence upon, and trust in, his attorney greater than when, contemplating his own mortality, he seeks the attorney’s advice, guidance, and drafting skill in the preparation of a will to*91 dispose of his estate after death. These consultations are often among the most private to take place between an attorney and his client. The client is dealing with his innermost thoughts and feelings, which he may not wish to share with his spouse, children and other next of kin.
“Because the decisions that go into the preparation of a will are so inherently private, and because, by definition, the testator will not be available after his death, when the will is offered for probate, to correct any errors that the attorney may have máde, whether they are negligent errors or of a more sinister kind, a client is unusually dependent upon his attorney’s professional advice and skill when he consults the attorney to have a will drawn. The client will have no opportunity to protect himself from the attorney’s negligent or infamous misconduct.
“It is for precisely these reasons that EC 5-5 of the Code of Professional Responsibility requires that, other than in exceptional circumstances, a lawyer must insist that an instrument in which he is beneficially named be prepared by another lawyer.
“ * * * ‘[T]o insist’ that another lawyer write the will means that the lawyer/beneficiary must refuse to write it himself.” (Footnote omitted.)
Here, respondent prepared a last will and testament for Bogovich on two separate occasions even though the wills named respondent as a beneficiary. Respondent knew that it was wrong and unethical to prepare the wills in question, but he went ahead and prepared them anyway. The panel and the board found, and we agree, that respondent violated DR 1-102(A)(6) by preparing the wills in which he was named as a beneficiary.
Ill
Sanction
In recommending an indefinite suspension for respondent’s professional misconduct, the board was particularly concerned by the fact that respondent had knowingly ignored the requirements of the Code of Professional Responsibility when he chose to prepare the wills in question. Specifically, the board was troubled by the notion that respondent may have engaged in a “cost/benefit analysis” when he chose to violate DR 1-102(A)(6), ie., that respondent may have weighed the possibilities of being caught for the disciplinary infraction (and the range of possible sanctions) against the economic benefits to be derived from drafting Bogovich’s wills. The benefits associated with violating DR 1-102(A)(6) by drafting Bogovich’s wills included that respondent, as beneficiary, stood to receive (and did receive) a generous percentage of Bogovich’s estate. The board feared that respondent had chosen to prepare the wills despite the known ethical
Upon a review of the record, we are convinced that an indefinite suspension is the appropriate sanction for respondent’s violation of DR 1-102(A)(6) and his attempts to collect a clearly excessive fee in violation of DR 2-106(A). Therefore, respondent is indefinitely suspended from the practice of law in this state. Costs taxed to respondent.
Judgment accordingly.
Dissenting Opinion
dissenting. I respectfully dissent from the majority’s disposition of this case. I would impose a one-year actual suspension for violations found by the panel and require respondent, John Andrew Galinas, to return to the estate the funds he received from the bequest in the will. The majority speaks of Galinas’s “cost/benefit analysis” in that the respondent expressed to Frances Bogovich that it would be unethical for him to prepare such a will, yet he went ahead and did so. While the majority believes that a harsh disciplinary sanction will discourage attorneys from engaging in a cost/benefit analysis in determining whether to commit malpractice, I believe that allowing the respondent to retain the approximately $130,000 he received from the estate will lessen the impact of such a sanction. The respondent should not be permitted to keep the fruits of his unethical conduct, particularly when he knowingly engaged in such unethical conduct. Therefore, I would give the respondent a sanction of lesser duration, that being a one-year actual suspension, but require him to return all the fruits of his misconduct.