Disciplinary Counsel v. Carpenter , 1993 Ohio 153 ( 1993 )

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Office of Disciplinary Counsel v. Carpenter.
[Cite as Disciplinary Counsel v. Carpenter (1993), Ohio
St.3d .]
Attorneys at law -- Misconduct -- Permanent disbarment --
Conviction for bank fraud -- Conviction for theft in
office -- Conviction for grand theft -- Conviction for
aggravated theft.
(No. 93-1303 -- Submitted September 21, 1993 -- Decided
December 29, 1993.)
On Certified Report by the Board of Commissioners on
Grievances and Discipline of the Supreme Court, No. 91-33.
In a six-count complaint filed on October 11, 1991, the
Office of Disciplinary Counsel, relator, charged respondent,
James P. Carpenter III, of Johnstown, Ohio, Attorney
Registration No. 0009769, with the following misconduct:
(1) five violations of DR 1-102(A)(3) (engaging in illegal
conduct involving moral turpitude);
(2) five violations of DR 1-102(A)(4) (engaging in conduct
involving dishonesty, fraud, deceit, or misrepresentation);
(3) two violations of DR 1-102(A)(5) (engaging in conduct
that is prejudicial to the administration of justice);
(4) five violations of DR 1-102(A)(6) (engaging in any
other conduct that adversely reflects on fitness to practice
law);
(5) two violations of DR 6-101(A)(3) (neglecting a legal
matter entrusted to him);
(6) one violation of 7-101(A) (failing to represent client
zealously);
(7) one violation of 7-102(A)(4) (knowingly using perjured
testimony or false evidence);
(8) one violation of 7-102(A)(6) (participating in the
creation or preservation of evidence when an attorney knows or
it is obvious that the evidence is false); and
(9) five violations each of DR 9-102(A) and (B)
(preserving identity of funds and property of a client).
The matter was heard upon stipulations, exhibits and
respondent's deposition by a panel of the Board of
Commissioners on Grievances and Discipline of the Supreme Court.
Count I
On March 14, 1990, respondent, acting as the closing agent
in a real estate transaction, received $95,000 from Edsel
Blackburn. Respondent was to place the money in his escrow
account and disburse the funds to Harstine Implement Co., Inc.
to complete the purchase of land by Blackburn in Licking
County. However, respondent misappropriated the funds, and
insufficient funds existed in the account on which checks were
written.
Respondent subsequently pled guilty to bank fraud in
violation of Section 1344, Title 18, U.S. Code, and received a
twelve-month prison sentence and three years of supervised
release. Respondent was also ordered to make restitution in
the amount of $95,000 to Edsel Blackburn, Heartland Bank,
and/or First Knox Bank, and to make restitution of $73,651.45
to the Heartland Bank and/or the Cincinnati Insurance Company.
Respondent admits that he violated DR 1-102(A)(3), (4),
and (6), and 9-102(A) and (B).
Count II
In further dereliction of his performance in the Blackburn
transaction described in Count I, respondent, as escrow agent,
failed to satisfy and record the deed. Consequently, the
parties hired another attorney and suffered additional damage
and expense. Complete restitution has been made to Blackburn,
Heartland Bank, and First Knox Bank. Respondent admits that he
violated DR 6-101(A) and 7-101(A).
Count III
In January 1990, respondent, as Village Solicitor for
Johnstown, Ohio, received $53,500 from the village to purchase
real estate from Joseph T. Russo. Respondent was to relinquish
an outstanding mortgage to First Federal Savings & Loan
Association of $24,095 and, apparently, pay the remainder of
the funds to Russo. Respondent failed to pay the mortgage
timely, and insufficient funds existed in his escrow account to
satisfy the mortgage. Respondent reimbursed Russo for all the
accrued principal and interest due as of April 1990, and
together with Mid-Ohio Title Agency, fully satisfied the
mortgage and obtained its release. Johnstown thereafter
obtained a clear and free title to the premises.
Respondent subsequently pled guilty to theft in office
under R.C. 2921.41(A)(2). Respondent was sentenced to a
determinate term of two years' imprisonment to be served
concurrently with his federal sentences and other state
sentences. Respondent admits that he violated DR 1-102(A)(3),
(4), and (6), and 9-102(A) and (B).
Count IV
Respondent misappropriated $65,000 from the Betty Barrick
Harmon Testamentary Trust, having been appointed its trustee by
the Delaware County Probate Court. The trust has been fully
reimbursed for all losses.
Respondent subsequently pled guilty to grand theft under
R.C. 2913.02 and was sentenced to a determinate term of two
years' imprisonment, to run concurrently with the theft in
office conviction, and the aggravated theft conviction and the
federal sentences. Respondent admits that he violated DR
1-102(A)(3), (4), and (6), and 9-102(A) and (B).
Count V
On March 26, 1990, respondent, as attorney for defendants
James L. Price and others in a suit in Licking County Court of
Common Pleas, was ordered to deposit $15,426 into a Heartland
Bank trust account. As of June 6, 1990, respondent did not
have the funds in the trust account. The funds plus interest
were subsequently delivered to the Licking County Common Pleas
Court to cover the account.
Respondent admits that he violated DR 9-102(A) and (B),
and 1-102(A) (3), (4), (5), and (6).
Count VI
Respondent was executor of the estate of John Bounds,
having been appointed by the Licking County Probate Court. On
May 20, 1985, he was appointed trustee of the testamentary
trust of Bounds. On August 28, 1985, respondent filed a
trustee's inventory reporting the receipt of funds from the
Bounds estate in the amount of $92,168.66 and real estate
valued at $80,508.50. Respondent did not file the trust
accounting until October 24, 1989. In that accounting,
respondent reported the real estate had been sold for
approximately $97,000. Respondent also reported that the trust
had $181,013.24 on deposit at Heartland Bank. Respondent never
had that amount deposited at Heartland Bank. The Bounds estate
has been fully reimbursed for all its losses.
Respondent subsequently pled guilty to aggravated theft
under R.C. 2913.02 in the Licking County Court of Common
Pleas. Respondent was sentenced to a prison term of not less
than five years and no more than fifteen years, to run
concurrently with the federal sentences and other state
sentences. Respondent admits that he violated DR 1-102(A)(3),
(4), (5), and (6), 6-101(A)(3), 7-102(A)(4) and (6), and
9-102(A) and (B).
In total, respondent misappropriated nearly $240,000,
which amount bonding companies have paid to parties incurring
losses due to respondent's activities. Respondent has repaid
only a small portion of this amount to these companies.
On July 31, 1990, respondent agreed to accept a voluntary
indefinite suspension from the practice of law and ceased
practicing law. On May 29, 1991, this court indefinitely
suspended respondent under Gov. Bar R. V.
The chairman of a panel of the Board of Commissioners on
Grievances and Discipline of the Supreme Court recommended that
respondent be indefinitely suspended from the practice of law
with no credit for time served because he had cooperated
immediately with law enforcement agencies and Disciplinary
Counsel. Furthermore, the chairman believed that respondent
was genuinely remorseful over his conduct, which appeared to
the chairman to be occasioned by financial crisis brought on by
respondent's significant health problems. However, the other
two members of the panel recommended that respondent be
permanently disbarred.
Nevertheless, the board adopted the findings of fact and
conclusions of law of the panel, but recommended that
respondent be indefinitely suspended from the practice of law
with no credit for time served.
Geoffrey Stern, Disciplinary Counsel, and Dianna A.
Chesley, Assistant Disciplinary Counsel, for relator.
James P. Carpenter III, pro se.
Per Curiam. We agree with the findings of fact and
conclusions of law of the board but disagree with its
recommendation. We hereby permanently disbar respondent from
the practice of law in Ohio and tax costs to him.
Judgment accordingly.
Moyer, C.J., A.W. Sweeney, Douglas, Wright, Resnick and
F.E. Sweeney, JJ., concur.
Pfeifer, J., dissents and would order that respondent be
indefinitely suspended from the practice of law.