Disciplinary Counsel v. Kramer

866 N.E.2d 498, 113 Ohio St. 3d 455
CourtOhio Supreme Court
DecidedMay 30, 2007
DocketNo. 2006-2332
StatusPublished
Cited by6 cases

This text of 866 N.E.2d 498 (Disciplinary Counsel v. Kramer) 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. Kramer, 866 N.E.2d 498, 113 Ohio St. 3d 455 (Ohio 2007).

Opinion

Per Curiam.

{¶ 1} This court admitted respondent, Lawrence Joseph Kramer Jr. of Cleveland Heights, Ohio, Attorney Registration No. 0076893, to the practice of law in Ohio in 2003. The Board of Commissioners on Grievances and Discipline now recommends that we suspend respondent’s license to practice for six months, staying the entire suspension on conditions, because he committed professional misconduct while associated with a company that sold insurance and services related to living trusts to his clients. On review, we find that a stayed six-month suspension is appropriate for respondent’s violations of the Code of Professional Responsibility.

{¶ 2} Relator, Disciplinary Counsel, charged that respondent’s affiliation with CLA USA, Inc. (“CLA”), a Texas corporation in business to market and sell insurance, violated DR 2-103(C) (prohibiting a lawyer from engaging a person or organization to promote the lawyer’s professional services, except to the extent permitted by a lawyer referral service), 3-101(A) (prohibiting a lawyer from aiding a nonlawyer in the unauthorized practice of law), and 5-107(B) (prohibiting a lawyer from permitting a person who recommends, employs, or pays him or her to provide legal services for another to control his professional judgment). A three-member panel of board members heard the cause, including the parties’ comprehensive stipulations, found violations of DR 2-103(C) and 3-101(A), and recommended that respondent receive a six-month stayed suspension. The board adopted the panel’s findings of misconduct and recommendation.

{¶ 3} Neither party objects to the board’s report.

Misconduct

{¶ 4} A lawyer must exercise professional judgment within the bounds of the law and “solely for the benefit of his client and free of compromising influences and loyalties.” EC 5-1. But we have repeatedly seen lawyers run afoul of ethical standards by participating in sales transactions through which companies offer living-trust agreements, usually targeting older customers, and then profit by also selling insurance. See, e.g., Disciplinary Counsel v. Wheatley, 107 Ohio St.3d 224, 2005-Ohio-6266, 837 N.E.2d 1188; Columbus Bar Assn. v. Fishman, 98 Ohio St.3d 172, 2002-Ohio-7086, 781 N.E.2d 204; Columbus Bar Assn. v. Moreland, 97 Ohio St.3d 492, 2002-Ohio-6726, 780 N.E.2d 579; and Cincinnati Bar Assn. v. Kathman (2001), 92 Ohio St.3d 92, 748 N.E.2d 1091. These affiliations necessarily dilute the independence of a lawyer’s counsel because, from the [457]*457earliest possible moment, the company’s sales objectives, not the client’s individual interests, drive the outcome of the transaction. Id. at 97-98, 748 N.E.2d 1091; Fishman at ¶ 14.

{¶ 5} Respondent’s affiliation with CLA, which conducted business in much the same way as did the marketing companies in the cited cases, suffered from some of the same infirmities. CLA first solicited potential customers though mass mailings and group seminars, touting the benefits of establishing a living trust. Nonlawyer-agents of CLA then arranged follow-up appointments to obtain customers’ financial information and to finalize sales, execute the sales contracts, and collect the fees for CLA’s services. If a customer did not have a lawyer, the CLA agent also provided a list of licensed Ohio lawyers available for referral, and the customer-turned-client typically signed an agreement to retain one and wrote the lawyer a check for a legal fee. After the lawyer completed the documents to open the trust, an unlicensed CLA agent arranged a meeting for the customer-client to execute the documents. At this point, the agent advised the customer how to fund the trusts, providing financial and estate-planning advice and recommending the purchase of various insurance contracts for which the agent would be paid a commission.

{¶ 6} From October 2003 to July 2004, before and after his admission to the Ohio bar, respondent worked for CLA, delivering legal documents to CLA’s customers for execution and selling them insurance. He also performed annual reviews of CLA’s customers, checking each year to make sure customers’ trusts were properly funded and to see whether he could sell them more insurance. CLA paid respondent $75 for a meeting for initial execution of trust documents, $25 per annual review, and commissions on the insurance that he sold.

{¶ 7} In January 2004, CLA hired respondent as a regional manager. As manager, respondent supervised and trained CLA agents to deliver documents for execution and perform annual reviews in seven states, including Ohio. CLA paid respondent a salary and a percentage of commissions earned on insurance sales. Respondent left CLA in July 2004 to open his own legal practice.

{¶ 8} Respondent soon started accepting CLA client referrals in his practice. He provided the company a form letter with his biographical information and a retainer agreement for CLA agents to give interested customers. In accordance with the CLA referral process, the CLA agent collected $350 checks from each referred customer and then sent respondent the checks and the signed retainer agreements. Beginning in July 2004, respondent received packets each week containing CLA retainer checks.

{¶ 9} After a referral, respondent personally accessed his client’s financial information from CLA’s website and prepared typical documents, including revocable living trusts, pour-over wills, various deeds, durable powers of attorney, healthcare powers of attorney, and guardianship declarations. Respondent then [458]*458contacted the client, generally by telephone, to initially review his work. By the time respondent finally consulted his client, however, CLA agents had already convinced the client to buy, and the client had already paid for, services to be generated by the anticipated living trust.

{¶ 10} Respondent returned completed trust documents to CLA to arrange for his clients to sign. Respondent fully realized that in obtaining the client’s signature, a CLA agent would also present an insurance sales pitch, and consistent with his previous experience as a CLA agent, respondent encouraged this solicitation. Respondent never attended any of the meetings at which his clients executed the legal documents that he had prepared, nor did he routinely follow up with the clients afterward.

{¶ 11} Respondent continued to receive referrals from CLA until September 2005, when he ended their affiliation. Until then, respondent’s practice had consisted mainly of CLA referrals. Between July 2004 and the time of his October 17, 2005 deposition, respondent had had 251 clients, 221 of which CLA had referred, and he drew roughly 72 percent of his income from these referrals. Respondent prepared living trusts for the “vast majority” of these clients, and afterward, only one of them ever retained him to do other work.

DR 2-103(C) — Promotional Improprieties

{¶ 12} As the board found, respondent provided form letters and retainer agreements so that CLA agents could recommend his services to clients with whom he had no other connection. For example, Margaret Chamlis reported that she had no contact at all with respondent after paying a CLA agent $2,145 for setting up a living trust, signing one of respondent’s retainer contracts, and writing respondent a $350 check.

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

Related

Cincinnati Bar Ass'n v. Mid-South Estate Planning, L.L.C.
903 N.E.2d 295 (Ohio Supreme Court, 2009)
Cincinnati Bar Ass'n v. Mullaney
894 N.E.2d 1210 (Ohio Supreme Court, 2008)
In RE DISCIPLINARY ACTION AGAINST McCRAY
2008 ND 162 (North Dakota Supreme Court, 2008)
Cincinnati Bar Ass'n v. Heisler
866 N.E.2d 490 (Ohio Supreme Court, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
866 N.E.2d 498, 113 Ohio St. 3d 455, Counsel Stack Legal Research, https://law.counselstack.com/opinion/disciplinary-counsel-v-kramer-ohio-2007.