Disciplinary Counsel v. Heiland

116 Ohio St. 3d 521
CourtOhio Supreme Court
DecidedJanuary 17, 2008
DocketNo. 2007-1111
StatusPublished
Cited by19 cases

This text of 116 Ohio St. 3d 521 (Disciplinary Counsel v. Heiland) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Disciplinary Counsel v. Heiland, 116 Ohio St. 3d 521 (Ohio 2008).

Opinion

Per Curiam.

{¶ 1} Respondent, Eric K. Heiland of Lorain, Ohio, Attorney Registration No. 0056083, was admitted to the Ohio bar in 1991. On March 9, 2007, relator, Disciplinary Counsel, filed an amended complaint charging respondent with several violations of the Code of Professional Responsibility. Respondent answered the amended complaint, and a panel of the Board of Commissioners on Grievances and Discipline held a hearing on March 29 and 30, 2007. The panel then made findings of fact, conclusions of law, and a recommendation, which the board adopted.

{¶ 2} The Board of Commissioners on Grievances and Discipline recommends that we impose an indefinite suspension of respondent’s license to practice law based on findings that he committed several disciplinary violations. On review, we adopt the board’s findings of misconduct and the recommended sanction.

Misconduct

Count Two

{¶ 3} On January 2, 1998, respondent filed a complaint in the Lorain County Court of Common Pleas on behalf of his wife, Patricia Heiland, her sister, Faye Happel, and Patricia and Faye’s parents, Emmitt and Catherine Holbrook. Respondent sought to enjoin Royal Manor Health Care from discharging Catherine Holbrook from Palm Crest West Nursing Home for nonpayment of fees.

{¶ 4} In the complaint, respondent asserted that Catherine Holbrook was “incompetent.” Respondent also attached an affidavit from his wife that stated: “My mother Catherine Holbrook has a diagnosed medical condition of suspected Alzheimer’s disease which is so advanced that she does not understand who or where she is * *

[522]*522(¶ 5} On January 31, 1998, 29 days after filing the complaint describing Catherine Holbrook as incompetent, respondent witnessed a document signed by Catherine Holbrook purporting to grant respondent’s wife power of attorney to act on behalf of Catherine Holbrook.

{¶ 6} The board found that respondent’s actions violated DR 1 — 102(A)(6) (prohibiting conduct that adversely reflects on a lawyer’s fitness to practice law).

Count One

{¶ 7} As discussed in Count Two, Catherine Holbrook purportedly granted power of attorney to her daughter, respondent’s wife, on January 31, 1998. On February 4, 1998, Emmitt Holbrook also granted power of attorney to respondent’s wife. During this time, Catherine Holbrook’s income consisted of a pension from the State Teachers Retirement System, and Emmitt Holbrook’s income consisted of a Ford Motor Company pension and Social Security benefits.

{¶ 8} Between 1998 and 2001, respondent, with his wife’s assistance, deposited Catherine Holbrook’s pension checks and Emmitt Holbrook’s pension and Social Security cheeks, into his client trust account. Respondent also deposited some of his wife’s earnings from Grace United Methodist Church into his trust account. During this time, respondent deposited a total of $68,917.79 into his trust account, with approximately $40,000 coming from his in-laws’ retirement funds and insurance benefits and from his wife’s employment checks.

{¶ 9} Between 1998 and 2001, respondent wrote 292 checks from his trust account. Of these 292 checks, 262 were payable to cash. These totaled $60,195, but respondent has no records accounting for this money. At the hearing, respondent testified that he cashed the checks and gave the money to his wife as attorney-in-fact for her parents.

{¶ 10} Emmitt Holbrook resided at Anchor Lodge Retirement Village from February 1995 to February 1999. After obtaining power of attorney from Emmitt in February 1998, respondent’s wife wrote four checks to Anchor Lodge, totaling $9,162, that were returned for insufficient funds. After repeated attempts to collect the debt, Anchor Lodge caused criminal charges to be filed against respondent’s wife for passing bad checks. The charges were dismissed after respondent paid Anchor Lodge $4,141.86 by a check drawn on his trust account.

{¶ 11} Emmitt Holbrook next resided at the Community at Parkvue from February 5, 1999, to January 6, 2000. Respondent’s wife acted as Emmitt’s attorney-in-fact during this time and assumed financial responsibility for his care. During Emmitt’s stay at Parkvue, respondent wrote 92 checks on his trust account, with 87 checks payable to cash. The 87 checks totaled $28,530.86. Respondent, however, could not account for any of the money he received when [523]*523he negotiated these checks, except to say that he gave the cash to his wife to be used for the Holbrooks’ care. Yet none of the cash withdrawals made by respondent had been used to pay Parkvue. When Parkvue discharged Emmitt Holbrook on January 6, 2000, Parkvue was owed over $53,000.

{¶ 12} On May 5, 2000, Emmitt Holbrook was admitted to Avon Oaks Nursing Home. Respondent continued to deposit Emmitt Holbrook’s pension checks and Social Security benefits into his trust account while Emmitt resided at Avon Oaks. From May until December 2000, respondent wrote 86 checks on his trust account payable to cash for a total of $20,306.62. Respondent cannot account for any of the money withdrawn, except to say that the cash was given to his wife to be used for the Holbrooks’ care. None of this money was paid to Avon Oaks, and by November 2000, Emmitt Holbrook owed over $29,000 in fees to Avon Oaks.

{¶ 13} On June 5, 2002, the Lorain County Grand Jury indicted respondent on three counts of felony theft. The charges involved respondent’s participation in a scheme to defraud his in-laws, Emmitt and Catherine Holbrook, and various nursing homes that had provided care for the Holbrooks from January 31, 1998, to April 30, 2001. On February 14, 2005, respondent entered an Alford guilty plea1 to three misdemeanor counts of defrauding creditors.

{¶ 14} Based on the foregoing, the board concluded that respondent had used his client trust account to launder money from the Holbrooks’ retirement funds. The board found that by depositing the Holbrooks’ retirement income into his trust account and doling out the money in cash to his wife, respondent and his wife were able to keep this money from the nursing homes and Medicaid. The board also found that respondent had overdrawn his trust account on four separate occasions in August 1998.

{¶ 15} Based on respondent’s conduct, the board found that he had violated DR 1 — 102(A)(3) (prohibiting conduct involving moral turpitude), 1-102(A)(4) (prohibiting conduct involving dishonesty, fraud, deceit, or misrepresentation), 1-102(A)(5) (prohibiting conduct that is prejudicial to the administration of justice), 1-102(A)(6) (prohibiting conduct that adversely reflects on a lawyer’s fitness to practice law), and 9-102(B)(3) (requiring the lawyer to maintain complete records of all funds, securities, and other properties of a client coming into the lawyer’s possession and render appropriate accounts to his client regarding them).

Coimt Three

{¶ 16} Relator charged respondent with violating DR 1-102(A)(4) (prohibiting conduct involving dishonesty, fraud, deceit, or misrepresentation) based on the [524]*524fact that respondent’s client trust account was entitled “Legal Aid Trust Account/State of Ohio/Eric K. Heiland.”

{¶ 17} The board found that respondent’s conduct violated DR 1 — 102(A)(4) because he had no affiliation with Legal Aid or any other government-subsidized legal-services organization.

Count Four

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Bluebook (online)
116 Ohio St. 3d 521, Counsel Stack Legal Research, https://law.counselstack.com/opinion/disciplinary-counsel-v-heiland-ohio-2008.