Disciplinary Counsel v. Kimmins

2009 Ohio 4943, 915 N.E.2d 330, 123 Ohio St. 3d 207
CourtOhio Supreme Court
DecidedSeptember 24, 2009
Docket2009-0469
StatusPublished
Cited by6 cases

This text of 2009 Ohio 4943 (Disciplinary Counsel v. Kimmins) 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. Kimmins, 2009 Ohio 4943, 915 N.E.2d 330, 123 Ohio St. 3d 207 (Ohio 2009).

Opinions

Per Curiam.

{¶ 1} Respondent, Thomas W. Kimmins, Attorney Registration No. 0024739, with a registration address in Massillon, Ohio, was admitted to the practice of law in Ohio in 1963. The Board of Commissioners on Grievances and Discipline has recommended that we suspend his license to practice law for one year, all stayed on conditions, based on findings that he advanced financial assistance to a client while representing him in pending litigation, retained the client’s property without disclosing that fact, misused the client’s confidential information, made misrepresentations to the client’s family, and failed to maintain complete records and render appropriate accounts to the client regarding the client’s property. We agree that respondent committed professional misconduct as found by the board and that a one-year suspension, all stayed on conditions, is the appropriate sanction.

{¶ 2} Relator, Disciplinary Counsel, charged respondent with multiple violations of the Disciplinary Rules of the former Code of Professional Responsibility. A panel of the board heard the case, dismissed some of the charges alleged in the complaint, found that respondent had committed professional misconduct, and recommended a one-year suspension, all stayed on conditions. The board adopted the panel’s findings and recommendation.

[208]*208Misconduct

{¶ 3} Respondent represented Joseph Arvine Steiner in a dispute related to his mother’s estate after she died in August 2002. For over 40 years, Steiner had lived at a house owned by his mother and had, during that time, stored on the premises automotive and commercial equipment and other items that he intended to repair and sell in order to augment his income after retirement. Inside the house, the roof had leaked and damaged the kitchen, and the plumbing had problems. Steiner also kept boxes of leftover chicken dinners and jars of applesauce in the refrigerator and stored piles of paper, tools, and equipment throughout the house. Steiner admitted that he would not invite people over to his house on account of its deterioration.

{¶ 4} In March 2004, Steiner informed respondent that he had decided to retire from his job as a mechanic at Peoples Cartage, a trucking company, and sought advice on his financial situation while he waited for his pension payments to commence. Although Steiner had not requested a loan, he agreed to accept $5,000 from respondent to be deposited in a power-of-attorney account for the purposes of paying bills and covering the expenses of the pending case until his mother’s estate closed. Steiner also executed a durable power of attorney appointing respondent his attorney-in-fact. Respondent then opened the power-of-attorney account jointly in his own and Steiner’s names, and he paid Steiner’s bills out of that account and out of his own attorney trust account.

{¶ 5} A week after Steiner executed the power of attorney, he settled the dispute over his mother’s estate for $40,000, various bonds, and title to his mother’s house, with respondent retaining $12,000 pursuant to their contingent-fee agreement. Steiner had left a large number of tools with his former employer. Respondent called Eugene Hawk, explaining that he had “ ‘a client here that’s got a bum leg’ ” who had recently retired from Peoples Cartage and asking Hawk to pick up the tools for him. Steiner picked up the phone, identified himself, and said he didn’t need any help.

{¶ 6} In late March 2004, Steiner and respondent met at a restaurant for breakfast, during which Steiner admitted being depressed over the settlement and over the discord and division it had wrought in his family. Respondent drove Steiner to his house, and after touring it, respondent persuaded Steiner to go with him to a hospital to have his depression and varicose veins evaluated. Steiner voluntarily admitted himself to the hospital, and his doctor diagnosed him with severe depression.

{¶ 7} Having viewed the condition of Steiner’s property and considering it unfit for human habitation, respondent decided to act. Using the power of attorney, respondent began cleaning up the scrap metal, machines, building supplies, vehicles, and other items on the inside and the outside of the house. Respondent [209]*209admitted knowing that Steiner would not have approved of liquidating his assets in this manner and had not executed the power of attorney envisioning that respondent would use it to remediate the property. However, respondent claimed that the laws of Steiner’s township and Steiner’s best interests required a massive cleanup operation, and Steiner’s fragile mental health necessitated commencing it without Steiner’s knowledge or express consent.

{¶ 8} Respondent hired Hawk to sell the items Steiner had collected outside the house. Hawk then began moving items off the property, while respondent and others began sorting through the personal items in the house to determine what was garbage, what should be moved to a storage unit, and what should be left in the house.

{¶ 9} Meanwhile, respondent informed Steiner’s children of their father’s hospitalization, and he obtained their consent to continue the cleanup operation by telling them that Steiner’s doctor had said that Steiner was a threat to himself and others, that Steiner had financial problems, that social services was involved, that Steiner’s property was out of compliance with the township zoning ordinance, and that Steiner would not be able to return home if they did not remedy the problems at the house.

{¶ 10} By April 2, 2004, Steiner asked his friend Lou Pappas to check out his property because of his concern that something unusual was occurring there. Pappas reported that Hawk had begun hauling items off the property and scrapping items that could have been sold for value. Although Steiner now had knowledge that respondent had begun using the power of attorney to clean up his property, he did not protest, revoke the power of attorney, or check himself out of the hospital. Moreover, on the date of his discharge from the hospital, April 5, Steiner visited his property, yet he did not revoke the power of attorney. Steiner explained that he feared that raising objections would have resulted in his being committed to a mental hospital. Nonetheless, he admitted agreeing with the plan to clean up the property in order to sell it.

{¶ 11} That same day, Steiner’s son, Joe Steiner Jr., drafted a letter authorizing the cleanup, but he reserved several items from sale and required respondent to maintain an inventory. Steiner then accompanied his son to Georgia, where he was to stay while the cleanup continued. However, after talking to his father, Joe Steiner Jr. became suspicious of respondent’s description of Steiner’s mental and legal problems.

{¶ 12} Joe Steiner Jr. confirmed that his father’s doctor had never stated that Steiner would kill himself or others in three to six months, and he discovered that the property had not been cited by the township for being out of compliance with the zoning ordinance. Joe Steiner Jr. testified that when he confronted respondent about his prior statements, respondent threatened him. When Steiner took [210]*210the phone and questioned respondent on the decision to give away so much of his property, respondent terminated the relationship.

{¶ 13} After April 7, 2004, respondent distributed the funds he received in the settlement of Steiner’s challenge in the estate case, and he prepared two inventories accounting for much of Steiner’s property.

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Cite This Page — Counsel Stack

Bluebook (online)
2009 Ohio 4943, 915 N.E.2d 330, 123 Ohio St. 3d 207, Counsel Stack Legal Research, https://law.counselstack.com/opinion/disciplinary-counsel-v-kimmins-ohio-2009.