Disciplinary Counsel v. Johnson

865 N.E.2d 873, 113 Ohio St. 3d 344
CourtOhio Supreme Court
DecidedMay 16, 2007
DocketNo. 2006-1197
StatusPublished
Cited by11 cases

This text of 865 N.E.2d 873 (Disciplinary Counsel v. Johnson) 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. Johnson, 865 N.E.2d 873, 113 Ohio St. 3d 344 (Ohio 2007).

Opinion

Per Curiam.

{¶ 1} On December 6, 2004, relator, Disciplinary Counsel, charged respondent, Bryan Bright Johnson of Columbus, Ohio, Attorney Registration No. 0003981, with professional misconduct in violation of the Code of Professional Responsibility. A panel of the Board of Commissioners on Grievances and Discipline heard the cause during October and November 2005, after preliminary proceedings, including the denial of respondent’s motion to dismiss the complaint for prejudicial delay. The panel made findings of fact, conclusions of law, and a recommendation, all of which the board adopted.

{¶ 2} Relator’s complaint alleged numerous violations of the Disciplinary Rules, but the panel unanimously dismissed most of the charges for insufficient support pursuant to Gov.Bar R. V(6)(H). Of the remaining allegations, Counts I, III, and IV each charged respondent with violations of DR 1-102(A)(6) (prohibiting conduct that adversely reflects on an attorney’s fitness to practice law) and 2-106(A) (prohibiting a lawyer from charging or collecting an illegal or clearly excessive fee). Counts I, III, and IV all questioned the propriety of legal fees that respondent assessed while acting as Helen Bryan’s attorney-in-fact and guardian and as guardian of Bryan’s sister, Lucille Lauder.

{¶ 3} Count I accused respondent, a member of the Ohio bar since 1983, of continuing to perform legal work to collect money that had been stolen from Bryan and Lauder by their former attorney, despite the unlikelihood that he would recover enough of the funds to justify his fees in pursuing them. Count III alleged that respondent had padded bills for his work with unnecessary and repetitive tasks for the 2)6 years he represented the sisters. Count IV charged that respondent had improperly sought to have his fees paid from a $100,000 award from the Client Security Fund. The board found that respondent had violated DR 1-102(A)(6) and 2-106(A) as to each of these counts and recommended that respondent be publicly reprimanded.

I. Facts Precipitating the Board’s Findings of Misconduct

A. Bryan Hires Respondent

{¶ 4} During the events at issue, Bryan and Lauder lived in a nursing home. In April 1998, a social worker at the facility contacted respondent about representing the interests of the two elderly women who were at that time in dire financial trouble and in danger of being turned out of the home. Bryan’s and [346]*346Lauder’s financial distress developed after Karen Suzanne Bond, a lawyer to whom Bryan had previously granted power of attorney, misappropriated over $800,000 of their combined assets.1

{¶ 5} On April 14, 1998, respondent met with Bryan, who was anxious about her and her sister’s financial situation. Bryan was competent at the time, although she had been experiencing short-term memory loss, but Lauder was mentally incompetent. Respondent brought with him a durable general power of attorney, which Bryan signed, appointing respondent as her attorney-in-fact. Respondent filed the power of attorney in Franklin County Probate Court. Later that April, the probate court appointed respondent to be Lauder’s guardian, and on July 7, 1998, respondent filed an inventory listing $1,993 in assets for the guardianship estate.

{¶ 6} In investigating Bond’s misdeeds and attempting to recoup the sisters’ misappropriated assets, respondent filed civil concealment actions against Bond, her husband, her children, and her parents. He determined that roughly 80 percent of the missing assets belonged to Bryan. Thus, when respondent collected money, he typically placed 20 percent of the proceeds into the Lauder guardianship estate and the other 80 percent into a bank account that he had established pursuant to the Bryan power of attorney. Respondent had to report disbursements from the guardianship to the probate court; he did not have to report disbursements he made pursuant to the power of attorney from the Bryan bank account.

B. Respondent Recovers Funds, from which He Pays Bryan’s and Lauder’s Expenses, Including His Fees

{¶ 7} In the summer of 1998, respondent’s recovery efforts resulted in Bond’s transferring her real estate and surrendering four motor vehicles to Bryan and Lauder. Respondent sold the real estate for $135,000 and divided the $115,999.40 in net proceeds between the sisters. For devoting 25/£ hours at $150 per hour to the land-sale action, which he had had to pursue in order to sell Lauder’s interest in the property, respondent paid himself $3,825 from the sale proceeds. He also separately billed the sisters for his work in relation to this sale, claiming that he had provided extra services that were not customarily involved in a land sale.

{¶ 8} Respondent first applied on October 29,1998, for his fees and costs in the Lauder guardianship. The probate court approved the application, which listed respondent’s legal services from April 13 through June 10, 1998, for $9,818.75 in fees and $1,296.54 in expenses. Respondent’s billing records show that on [347]*347October 29, 1998, he also billed Bryan $9,536.75 for his services from April 13 through June 10, 1998, as Bryan’s attorney-in-fact, plus $1,609.67 in related expenses.

{¶ 9} In December 1998, respondent filed a malpractice action against Bond that the court later consolidated with Bond’s insurer’s declaratory-judgment action. Respondent established Bond’s malpractice, but her insurer succeeded in showing that Bond had stolen assets intentionally and that the policy did not cover theft. Lauder and Bryan thus recovered nothing from the malpractice action.

{¶ 10} Respondent’s law clerk had warned him as early as November 1998 that the malpractice claim had little chance of success, and in January 1999, another attorney whom respondent consulted agreed with that conclusion. Notwithstanding this advice, respondent continued to bill for his services in pursuit of malpractice-insurance proceeds through May 2000. At the panel hearing, respondent claimed that he had been acting in accordance with Bryan’s wishes.

{¶ 11} On February 26, 1999, respondent filed a second application for fees and costs in the Lauder guardianship. The probate court approved the application, which listed respondent’s legal services from June 11 through November 24,1998, for $17,435.75 in fees and $48.14 in expenses. Respondent’s billing records reflect that on March 1, 1999, he billed Bryan $24,261.75 for serving as her attorney-in-fact from June 11, 1998, to February 25, 1999, plus $84.20 in related expenses.

{¶ 12} In May 1999, respondent applied to become Bryan’s guardian, citing her mental incompetence. The probate court granted his application on June 10, 1999. Respondent reported $38,000 in assets on the guardianship application and also reported that he controlled these funds pursuant to a durable power of attorney. In the inventory he filed for the guardianship estate, however, respondent listed Bryan’s assets as only $1,000. In place of full disclosure, respondent wrote on the inventory that Bryan had other assets in accounts outside the guardianship estate.

{¶ 13} Respondent’s failure to include all of Bryan’s assets reduced the bond that he was required to post to protect the Bryan guardianship. His failure to list all of Bryan’s assets in the guardianship also concealed from the probate court the disbursements of Bryan’s assets to respondent for his continuing to serve as Bryan’s attorney-in-fact.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Amin, Turocy & Watson, L.L.P. v. Just Funky, L.L.C.
2024 Ohio 1368 (Ohio Court of Appeals, 2024)
In re Guardianship of Beaty
2019 Ohio 2116 (Ohio Court of Appeals, 2019)
Van Dress Law Offices Co., L.L.C. v. Dawson
2017 Ohio 8062 (Ohio Court of Appeals, 2017)
Bolek v. Miller-McNeal
2016 Ohio 1383 (Ohio Court of Appeals, 2016)
Lillie & Holderman v. Dimora
2013 Ohio 3431 (Ohio Court of Appeals, 2013)
Disciplinary Counsel v. Summers
2012 Ohio 1144 (Ohio Supreme Court, 2012)
Dayton Bar Assn. v. Parisi
2012 Ohio 879 (Ohio Supreme Court, 2012)
Akron Bar Ass'n v. Watkins
898 N.E.2d 946 (Ohio Supreme Court, 2008)
Disciplinary Counsel v. Johnson
116 Ohio St. 3d 1208 (Ohio Supreme Court, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
865 N.E.2d 873, 113 Ohio St. 3d 344, Counsel Stack Legal Research, https://law.counselstack.com/opinion/disciplinary-counsel-v-johnson-ohio-2007.