Cincinnati Bar Assn. v. Clark

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State: Ohio

Court: Supreme Court

Docket No: 1994-0497

Case Date: 12/14/1994

Plaintiff: Cincinnati Bar Assn.

Defendant: Clark

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Cincinnati Bar Association v. Clark.
[Cite as Cincinnati Bar Assn. v. Clark (1994), Ohio
St.3d .]
Attorneys at law -- Misconduct -- Two-year suspension with one

year of the period suspended -- Conduct involving fraud,

deceit, dishonesty or misrepresentation -- Conduct

adversely reflecting on fitness to practice law --

Employment where attorney's and client's interests

conflict without client's consent after full disclosure --

Business transaction with client where attorney's and

client's interests conflict without client's consent after

full disclosure.

(No. 94-497 -- Submitted September 14, 1994 -- Decided
December 14, 1994.

On Certified Report by the Board of Commissioners on
Grievances and Discipline of the Supreme Court, No. 93-09.

In a complaint filed February 16, 1993, relator,
Cincinnati Bar Association charged respondent, Thomas H. Clark
of Cincinnati, Ohio, Attorney Registration No. 0009206, with
violations of DR 1-102(A)(4) (conduct involving fraud, deceit,
dishonesty, or misrepresentation), 1-102(A)(6) (conduct that
adversely reflects on one's fitness to practice law), 5-101(A)
(employment where attorney's and client's interests conflict
without client's consent after full disclosure), and 5-104(A)
(business transaction with client where attorney's and client's
interest conflict without client's consent after full
disclosure). A panel of the Board of Commissioners on
Grievances and Discipline of the Supreme Court heard the matter
on October 29, 1993.

The charges of misconduct resulted from respondent's
representation of Rachel R. Shattuck, who died without heirs in
July 1992 at the age of eighty-eight. During 1991, respondent
revised Shattuck's will three times, gradually transforming the
mainly charitable bequests she had planned for her nearly
half-million dollar estate into bequests for his or his

family's benefit. In December 1991, respondent wrote a $10,000
check to himself from one of Shattuck's personal accounts and
withdrew another $10,000 for his law firm's use. The $10,000
withdrawal was credited as payment to the firm of fees by
another estate of which respondent was the executor. In April
1992, when he considered Shattuck unable to sign legal
documents, respondent wrote a $4,000 check to one of his sons
from a trust account that he had already set up for her with
himself as trustee. He wrote a $7,367.30 to another son from
the same account in June 1992. In the year before and just
after Shattuck's death, respondent lost $100,000 of the trust
assets in a high-risk investment in another client's company.

Respondent, who represented Shattuck for over thirty-five
years, maintained that he had always acted in accordance with
her wishes for her assets and estate. He explained to the
panel that he and his family had developed a close friendship
with Shattuck over the years, visiting her regularly and
including her in holiday celebrations. Respondent had helped
Shattuck choose and move into the senior care facility in which
she spent the last years of her life. Thus, when respondent
became seriously ill in 1990, he claims that Shattuck, a former
schoolteacher, suggested an arrangement whereby she could help
pay for his grandchildren's education. The changes in her will
were purportedly made to serve this goal.

Respondent told the panel that he wrote the $10,000 check
to himself because Shattuck wanted to give him a gift of that
amount. He also testified that the checks to his sons were
written as loans, although he had described them as gifts in a
November 1992 letter to relator. Respondent had no explanation
for the $10,000 withdrawal for his law firm and the false
accounting of it, except to say that he considered it a loan to
fund year-end bonuses for his associates and staff. Respondent
repaid this $10,000 a few months later without interest.

After Shattuck's death, some friends, who knew of her
charitable bequests and to whom she had earlier promised her
personal effects, retained an attorney to file a will contest.
The attorney discovered the transactions that led to the
instant complaint against respondent. The attorney testified
at the hearing that respondent had been very cooperative and
forthcoming during his investigation, and that they had reached
a settlement. Pursuant to this settlement, Shattuck's friends
received her personal belongings, each of respondent's
grandchildren relinquished all but $4,500 of their interests in
the estate, and the remaining assets were to be distributed to
the charities Shattuck chose in a prior will. Respondent also
repaid to the estate the $10,000 he received in 1991, the money
his sons received in 1992, and the $100,000 investment loss.

Respondent, who is sixty-eight years old and in ill
health, was admitted to the Ohio Bar in 1949. In his
forty-four years of practice, he has never before been the
subject of disciplinary action. Respondent testified he was
unaware that his having prepared Shattuck's will to benefit his
family was a basis for claiming misconduct or undue influence.
See Mahoning Cty. Bar Assn. v. Theofilos (1988), 36 Ohio St.3d
43, 521 N.E.2d 797; Krischbaum v. Dillon (1991), 58 Ohio St.3d
58, 567 N.E.2d 1291.

The panel determined from this evidence that respondent

had violated the Disciplinary Rules as charged in the
complaint. Before recommending a sanction, the panel
considered numerous character references from judges and
attorneys in the Cincinnati area, respondent's cooperation in
relator's investigation, his repayments to Shattuck's estate,
and his declining health. The panel also acknowledged
respondent's genuine concern and care for Shattuck over many
years. However, the panel was troubled by the essentially
complete control respondent exercised over this aging and
vulnerable client, his failure to honestly account for the
gifts and loans he made from her assets, and by the fact that
all would have gone undetected without the philanthropy of
Shattuck's friends.

The panel recommended that respondent be suspended from
the practice of law for one year. The board adopted the
panel's findings and its recommendation.

Deborah Delong and Charles S. Kamine, for relator.
James N. Perry, for respondent.

Per Curiam. After careful review of the record, we agree
that respondent violated DR 1-102(A)(4), 1-102(A)(6), 5-101(A),
and 5-104(A). However, we find respondent's misconduct more
like that committed in Disciplinary Counsel v. Slavens (1992),
63 Ohio St.3d 162, 586 N.E.2d 92, where we imposed an
indefinite suspension, than the misconduct committed in
Mahoning Bar Assn. v. Theofilos, supra, where we imposed only a
one-year suspension. Respondent is, therefore, suspended from
the practice of law in Ohio for two years, but one year of this
period will be suspended due to the mitigating factors
identified in the panel's report. Costs taxed to respondent.

Judgment accordingly.
Moyer, C.J., A.W. Sweeney, Douglas, Wright, Resnick, F.E.
Sweeney and Pfeifer, JJ., concur.

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