Disciplinary Counsel v. Tomlan

118 Ohio St. 3d 1
CourtOhio Supreme Court
DecidedApril 3, 2008
DocketNo. 2007-1595
StatusPublished
Cited by4 cases

This text of 118 Ohio St. 3d 1 (Disciplinary Counsel v. Tomlan) 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. Tomlan, 118 Ohio St. 3d 1 (Ohio 2008).

Opinions

Per Curiam.

{¶ 1} Respondent, John Richard Tomlan of St. Clairsville, Ohio, Attorney Registration No. 0007449, was admitted to the practice of law in Ohio in 1983.

{¶ 2} The Board of Commissioners on Grievances and Discipline recommends that we now indefinitely suspend respondent’s license to practice based on findings that he (1) without her informed consent, transferred an elderly client’s financial assets to joint and survivorship accounts in both of their names, (2) concealed estate proceeds in his possession after his client died, (3) unduly delayed performing his duties as executor of the client’s estate, and (4) engaged in prohibited ex parte communication with a probate court judge. We adopt the board’s findings that respondent violated the Code of Professional Responsibility and, over respondent’s objections, accept the recommendation for an indefinite suspension.

{¶ 3} Relator, Disciplinary Counsel, charged respondent with multiple violations of the Disciplinary Rules, including DR 1 — 102(A)(4) (prohibiting conduct involving fraud, deceit, dishonesty, 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 upon a lawyer’s fitness to practice law), 5-101(A)(1) (prohibiting a lawyer, except with consent of a client after full disclosure, from accepting employment if the exercise of professional judgment on behalf of the client may be reasonably affected by the lawyer’s financial and personal interests), 7-109(A) (prohibiting a lawyer from suppressing evidence that the lawyer has a legal obligation to reveal or produce), and 7-110(B) (prohibiting a lawyer from communicating ex parte on the merits of a case with the judge). Respondent answered relator’s complaint, denying all wrongdoing [2]*2and asserting various legal defenses. A panel of the board heard the case, found the cited misconduct, and recommended a two-year suspension of respondent’s license to practice. The board adopted the panel’s findings of misconduct but modified the sanction, recommending an indefinite suspension.

Misconduct

Respondent Violated DR 1-102(A)(6) and 5-101(A)(l) by Transferring His Client’s Assets to Joint and Survivorship Accounts without the Client’s Informed Consent

{¶ 4} Respondent befriended Katherine Rice, a 90-year-old nursing home resident, shortly after her admission in 1993. Rice suffered from Parkinson’s disease and, as early as July 1997, also showed signs of dementia or organic brain syndrome. Unmarried and childless, Rice possessed considerable wealth.

{¶ 5} Respondent began doing some legal work for Rice in 1997, when he handled a real estate closing for her and drafted a deed for the sale of a cabin. He then started helping Rice pay her bills, eventually having some mail directed to his home or office. In time, respondent also advocated on Rice’s behalf, intermittently identifying himself as her legal counsel.

{¶ 6} Respondent prepared a will that Rice executed in May 1998. The will named respondent as executor and his wife as the alternate executor. Rice made these bequests in the will: $20,000 to Rice’s nephew, $2,000 to her niece, $2,500 to be divided between two acquaintances, $25,000 to be divided among three churches, $2,000 to be divided between two fraternal organizations, $1,000 to be used for the perpetual care of Rice’s cemetery plot, $1,000 to an alumni association, and the remainder of the estate to be divided among specified hospitals and philanthropic organizations.

{¶ 7} In spring 1999, Rice apparently told respondent that she wanted to revise her will to leave him a monetary bequest. Respondent properly advised his client that he could not ethically prepare a will that named him as a beneficiary and that she would have to hire another attorney. Rice apparently did not want another lawyer and never revised her will. Respondent never discussed the subject of independent counsel with Rice again.

{¶ 8} Respondent then began transferring Rice’s assets, purportedly at her direction, into joint and survivorship accounts that they shared. In the first of three conveyances, respondent arranged in June 1999 for Rice to endorse four $100,000 checks with which he obtained four certificates of deposit in both of their names. He bought one certificate at the Belmont Savings Bank, a second at Wheeling National Bank, a third at Belmont National Bank, and a fourth at WesBanco Bank. These transactions ensured that title to the certificates of deposit would pass to respondent on Rice’s death.

[3]*3{¶ 9} In July 1999, Rice signed a healthcare power of attorney and a durable power of attorney. The first instrument named Rice’s nephew as attorney-in-fact for healthcare decisions and respondent as first alternate attorney-in-fact. The durable power of attorney designated respondent as Rice’s attorney-in-fact, conferring on him broad authority to buy and sell property, contract with financial institutions, buy and sell stocks and bonds, and transact business related to social security, pensions, IRAs, government benefits, insurance, credit cards, tax returns, and civil claims. Respondent used the durable power of attorney during Rice’s lifetime to correspond with banks, creditors, and other entities about her legal affairs, and to open bank accounts, manage funds, and create and renew numerous certificates of deposit.

{¶ 10} Respondent facilitated a second conveyance of Rice’s assets in June 2000. He arranged at that time for Rice to sign papers transferring 28,800 shares in stock she owned individually to him and herself jointly. This transfer, valued at approximately $1,000,000, also ensured that title of the stock would pass to respondent on Rice’s death.

{¶ 11} In January 2002, Rice’s treating physician recommended that Rice enter hospice care due to deteriorating health, and Rice’s impaired decisionmaking capabilities prompted hospice staff to consult her healthcare fiduciary about admitting her. Respondent consented to Rice’s admission to hospice care. To treat Rice’s end-stage Parkinson’s disease and other serious infirmities in the hospice facility, her doctor prescribed a variety of medications, including drugs for Parkinson’s disease, dementia, and depression. A month after her admission to the hospice facility, respondent facilitated a third conveyance of Rice’s property. He obtained a fifth certificate of deposit for $250,000 from Citizen’s Bank with the proceeds from two of the previous certificates of deposit. After arranging for Rice to sign papers for the purchase, respondent placed the certificate of deposit jointly in his and Rice’s name, again ensuring that title to the certificate would pass to him at Rice’s death.

{¶ 12} In advising lawyers to eschew gifts from clients, and thereby avoid suggestions of undue influence and overreaching, EC 5-5 recommends that before accepting a gift, lawyers insist that munificent clients obtain independent counsel. Respondent did not prevail upon Rice to seek another lawyer. He instead single-handedly facilitated the purchase of four $100,000 certificates of deposit and the transfer of over $1,000,000 in stock with assets previously held individually by his elderly and debilitated client and placed the assets in joint accounts that would pass to him upon her death.

{¶ 13} Respondent does not deny now that he failed to obtain his client’s valid consent to these gifts, which required him to disclose attendant risks such as the [4]

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Bluebook (online)
118 Ohio St. 3d 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/disciplinary-counsel-v-tomlan-ohio-2008.