Disciplinary Counsel v. McCully

[This decision has been published in Ohio Official Reports at 

.]




                 OFFICE OF DISCIPLINARY COUNSEL v. MCCULLY.
           [Cite as Disciplinary Counsel v. McCully, 

.]
Attorneys at law—Misconduct—Two-year suspension with one year of sanction
        stayed—Commingling clients’ funds with own funds while serving as
        guardian, attorney for the guardianship, and, ultimately, attorney for the
        deceased ward’s estate—Failing to account for approximately $12,000 of
        client’s money—Failing to cooperate in investigation of misconduct.
  (No. 2002-1138—Submitted August 27, 2002—Decided December 18, 2002.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                     Discipline of the Supreme Court, No. 01-56.
                                  __________________
        Per Curiam.
        {¶1} This case requires us to decide the sanction for an attorney who (1)
commingled her clients’ funds with her own while serving as guardian, attorney for
the guardianship, and, ultimately, attorney for her deceased ward’s estate, (2) failed
to appropriately account for approximately $12,000 of her client’s money, and (3)
did not cooperate in the investigation of this misconduct.                   The Board of
Commissioners on Grievances and Discipline found that respondent Joanne
McCully (n.k.a. Brown) of Cleveland, Ohio, Attorney 

committed these acts in violation of DR 1-102(A)(4) (conduct involving fraud,
deceit, dishonesty, or misrepresentation), 1-102(A)(6) (conduct that adversely
reflects on an attorney’s fitness to practice law), 9-102(B)(3) (failure to maintain
complete records of and appropriately account for client’s funds in attorney’s
possession), and 9-102(B)(4) (failure to promptly deliver funds to which client is
entitled), and Gov.Bar R. V(4)(G) (failure to cooperate in an investigation of
misconduct). The board recommended that respondent be suspended from the
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practice of law in Ohio for two years, with one year stayed. We agree that this
sanction is appropriate.
        {¶2} In the summer of 1993, one of two grandsons of a very elderly woman
asked respondent to look after their grandmother’s care and affairs. Respondent
agreed and arranged for the grandmother to enter a senior health care facility where
she resided until her death on February 7, 1994. The grandsons also wanted to sell
their grandmother’s residence in which they held remainder interests subject to her
life estate.
        {¶3} Respondent was appointed the grandmother’s guardian in August
1993 and thereafter also served as attorney for the guardianship. In November
1993, respondent received a $22,200 check, payable to her as guardian, for
proceeds from the sale of the residence, although the sale itself was not finalized
until after her ward’s death. Respondent deposited the check into a bank account
that had not been set up to hold client assets in trust. She later wrote checks to
herself and for cash from this account. Respondent did not have probate court
approval for the sale of the residential property,1 and in July 1993, she filed an
inventory of the guardianship assets that valued the residential property at $27,000
but did not mention the $22,200 payment.
        {¶4} In August 1994, after apparently agreeing to be the attorney for her
deceased ward’s estate, respondent completed the application to probate the ward’s
will as well as the final guardianship report. The $22,200 payment was not
identified in the guardianship report. Respondent later prepared and filed various
other documents in the estate that should have, but did not, account for the receipt
of the $22,200 payment or any distribution of these funds.




1. Respondent did file a complaint on February 4, 1994, seeking authority to sell the residential
property; however, when respondent’s ward died several days later, the complaint was dismissed
sua sponte more than two years later.




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                                   January Term, 2002




        {¶5} Another attorney hired by a grandson eventually brought the
irregularities in respondent’s guardianship and estate filings to the attention of
relator, Disciplinary Counsel, who sent a letter of inquiry to respondent. In reply,
respondent represented that one of the grandsons authorized her to pay for funeral
expenses and a portion of the decedent’s debts and that she had done so from the
account in which she deposited the $22,200 check. She stated that the grandson
also authorized respondent to pay herself attorney fees for her services from the
account in which she deposited the sale proceeds. She did so without the requisite
probate court approval for such attorney fee payments.
        {¶6} In June 2000, relator requested that respondent provide a complete
accounting for the $22,200 and its distribution. During its investigation, relator
learned that respondent had written a $3,000 check for funeral expenses and that
she had written a $7,000 check back to the purchaser of residential property to pay
for repairs, allegedly also at a grandson’s direction. Respondent had also written a
third check, for $200, to the buyer. All three checks were drawn from the account
in which respondent had deposited the $22,200, and none of the payments was
approved by the probate court. Beyond this, respondent could not specifically
account for the remaining $12,000 that she had accepted in trust for her clients.
        {¶7} On June 11, 2002, relator filed a complaint charging respondent with
professional misconduct. A panel of the board heard the matter, found the facts as
stated, albeit with two inconsequential exceptions,2 and concluded that respondent
had violated DR 1-102(A)(4) and (6) and 9-102(B)(3) and (4). The panel also
found, apparently because respondent’s responses to investigatory efforts were so
vague and inconsistent, that respondent had failed to cooperate.                  The panel
recommended that respondent be suspended from the practice of law for two years,


2. The panel mistakenly reported that the check respondent received from the sale of her ward’s
residence was for $22,000 instead of $22,200, and the panel did not mention the $200 that
respondent repaid to the purchaser by check.




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with one year of this period stayed. The board adopted the panel’s findings of
misconduct and recommendation.
       {¶8} We agree with the board’s decision. In attempting to explain why she
deposited a check made out to the guardianship of her ward in an account for her
own use and did not reveal this to the probate court, respondent testified that she
thought the $22,200 check represented the proceeds from the sale of the grandsons’
remainder interest in their grandmother’s residence and, thus, was not an asset of
the guardianship. She also thought that the grandsons had agreed to pay for her
services out of the sale proceeds.
       {¶9} There appears to have been some understanding between respondent
and at least one of the grandsons that the grandsons would have to rely on proceeds
from the sale of their grandmother’s house to pay creditors and respondent’s fees.
Regardless, respondent had no authority to commingle those funds with her own.
       {¶10} The board found no clear and convincing evidence of theft in this
case, largely because respondent did supply proof of her considerable work and
expenses. Nevertheless, without any accounting or probate court oversight, the
record does not reliably explain why it is that the grandsons, who apparently were
their grandmother’s only heirs, received nothing from her estate. Nor does the
record explain why respondent received $22,200 in payment for a residential
property that one of the grandsons recalls having had a sale price of just $16,000.
Furthermore, respondent’s assurances that she made substantial payments to the
providers of her ward’s housing and medical care cannot be reconciled with the fact
that these creditors have no record of her remittances.
       {¶11} Accordingly, we find that respondent committed the cited
misconduct and we concur in the recommended sanction. Respondent is therefore
suspended from the practice of law for two years, with one year stayed. Costs are
taxed to respondent.
                                                            Judgment accordingly.




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       MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
                              __________________
       Jonathan E. Coughlan, Disciplinary Counsel, and Stacy Solochek Beckman,
Assistant Disciplinary Counsel, for relator.
       C. Randolph Keller and William T. Doyle, for respondent.
                              __________________




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