Disciplinary Counsel v. Kimmins ( 2009 )

[Cite as Disciplinary Counsel v. Kimmins, 123 Ohio St. 3d 207, 2009-Ohio-4943.]
DISCIPLINARY COUNSEL v. KIMMINS.
[Cite as Disciplinary Counsel v. Kimmins,
123 Ohio St. 3d 207, 2009-Ohio-4943.]
Attorneys — Misconduct — Advancing financial assistance to a client unrelated
to court costs or litigation expenses — Engaging in conduct involving
fraud, deceit, dishonesty, or misrepresentation — Conduct adversely
reflecting on fitness to practice law — One-year suspension, stayed on
conditions.
(No. 2009-0469 — Submitted April 21, 2009 — Decided September 24, 2009.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 07-042.
__________________
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.
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{¶ 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.
Misconduct
{¶ 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 name, and he paid Steiner’s
bills out of that account and out of his own attorney trust account.
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{¶ 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 admitted 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
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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
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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 the 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. However, respondent
failed to keep an accurate inventory of the property sold or discarded. He
admitted that he lacked personal knowledge that all of the household property
taken from inside the house either remained on the property or ended up in
storage.
{¶ 14} For example, respondent did not account for decorative stone that
Hawk delivered to respondent’s residence, a few pieces of which respondent’s
gardener had used in landscaping at respondent’s farm. Respondent made no
attempt to return the stone, which remained on his property as of the hearing date,
and although he testified to his belief that the stone had no value, a stone dealer
appraised it at relator’s request at a value of $1,260. Also, although the second
inventory indicated that a school bus Steiner owned had been returned to the
property, that had not happened. Respondent also represented that he had
received $400 for scrap collected from the property when in fact he had received
$322. Similarly, the inventory indicates that respondent received $3,000 for a
white fifth-wheel truck, but Steiner had not been paid for it. Moreover, the
inventory does not account for an N-Model truck, a .22 rifle, and copper that
Steiner owned. Respondent admitted that it was impossible to keep track of
Steiner’s possessions, that not all of the property had been returned to Steiner, and
that none of the money that had been paid for the items removed from the
property had made its way to Steiner.
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{¶ 15} We accept the board’s finding that respondent’s $5,000 loan to
Steiner violated DR 5-103(B) (a lawyer shall not provide financial assistance to a
client in connection with litigation unrelated to court costs or litigation expenses),
that his misrepresentations to Steiner’s children regarding their father’s mental
health and whether Steiner’s property complied with the township’s code violated
DR 1-102(A)(4) (a lawyer shall not engage in conduct involving dishonesty,
fraud, deceit, or misrepresentation), and that his misuse of Steiner’s confidential
information to his disadvantage to solicit the support of Steiner’s children for the
cleanup operation, which he knew Steiner would oppose, violated DR 4-
101(B)(2) (using a client's confidence to the client's disadvantage) and 1-
102(A)(6) (a lawyer shall not engage in any other conduct that adversely reflects
upon the lawyer's fitness to practice law). We also accept the board’s finding that
respondent’s retention of the decorative stone violated DR 1-102(A)(4) and that
his failure to adequately and honestly account for Steiner’s property violated DR
9-102(B)(3) (a lawyer shall maintain complete records of all funds, securities, and
other properties of a client coming in the possession of the lawyer which the client
is entitled to receive) and 1-102(A)(6).
{¶ 16} We agree with the board’s conclusion that clear and convincing
evidence does not support relator’s allegations that respondent violated DR 1-
102(A)(6) in his use of the power of attorney, 4-101(B)(1) (prohibiting a lawyer
from knowingly revealing a client's confidences or secrets) and 1-102(A)(6) in
discussing Steiner’s health and financial issues with others, and 9-102(B)(2) (a
lawyer shall safeguard a client's property in the lawyer's possession) and 1-
102(A)(6) in storing, selling, and bartering Steiner’s property. We therefore
dismiss those parts of the complaint.
Sanction
{¶ 17} When imposing sanctions for attorney misconduct, we consider all
relevant factors, including the duties the lawyer violated, the lawyer’s mental
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state, and sanctions imposed in similar cases. Stark Cty. Bar Assn. v. Buttacavoli,
96 Ohio St. 3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶ 16. In making a final
determination, we also weigh evidence of the aggravating and mitigating factors
listed in Section 10 of the Rules and Regulations Governing Procedure on
Complaints and Hearings Before the Board of Commissioners on Grievances and
Discipline (“BCGD Proc.Reg.”). Disciplinary Counsel v. Broeren, 115 Ohio
St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21. Because each disciplinary
case is unique, we are not limited to the factors specified in the rule but may take
into account “all relevant factors” in determining what sanction to impose.
BCGD Proc.Reg. 10(B).
{¶ 18} As aggravating factors, we accept the board’s findings that
respondent has refused to acknowledge the wrongful nature of his conduct, other
than lending his client money, that respondent has failed to make restitution or to
help Steiner in retrieving his possessions, and that Steiner was vulnerable and
suffered harm. Regarding mitigating factors, the record reflects that the
respondent has practiced law for more than 45 years and has no prior disciplinary
record. In his efforts to clean up an uninhabitable home and property, respondent
acted beyond the scope of his authority; however, the board found that respondent
acted in the absence of a dishonest or selfish motive and has had what appears to
be an exemplary career. At the hearing before the panel, respondent offered
evidence of his good character through 40 letters of reference submitted by people
from all walks of life, including attorneys, clients, and members of the
community, as well as a common pleas court judge, two judges of the family
court, and the Stark County Prosecuting Attorney. He also presented character
evidence through the testimony of the Honorable David D. Dowd Jr., a United
States district court judge, Judge Sheila Farmer of the Fifth District Court of
Appeals, and Richard T. Kettler, retired and formerly of the Massillon Municipal
Court, all of whom described respondent as having a reputation for honesty,
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integrity, and good character and as being deserving of the public trust. In
addition, the board noted that respondent has fully cooperated with the
investigative process, has made full disclosure to the appropriate authorities, and
has suffered embarrassment from the accusations of misconduct portrayed in the
local media.
{¶ 19} The primary purpose of the disciplinary process is to protect the
public from lawyers who are unworthy of the trust and confidence essential to the
attorney-client relationship and to allow us to ascertain the lawyer’s fitness to
practice law. Disciplinary Counsel v. Agopian, 112 Ohio St. 3d 103, 2006-Ohio-
6510, 858 N.E.2d 368, ¶ 10. While respondent’s unilateral decision to clean up
and dispose of Steiner’s property against his client’s known wishes, his
misrepresentations to Steiner’s children, which were designed to gain their
agreement to his plan of action, his retention of his client’s property, his failure to
keep an accurate and complete inventory and to account for Steiner’s personal
property during the cleanup, and his failure to acknowledge the wrongfulness of
his actions demonstrate that a suspension of his license to practice law for one
year is warranted, there is no question that respondent acted in what he perceived
to be Steiner’s best interest.
{¶ 20} In Cleveland Metro. Bar Assn. v. Podor, 121 Ohio St. 3d 131,
2009-Ohio-358, 902 N.E.2d 488, we imposed a one-year suspension, all stayed on
conditions, on an attorney who improperly advanced financial assistance to a
client during the course of a representation. Id. at ¶ 13. In Disciplinary Counsel
v. Croushore, 108 Ohio St. 3d 156, 2006-Ohio-412, 841 N.E.2d 781, we imposed
a one-year suspension, conditionally stayed, for an attorney’s failure to keep
proper records and render a proper accounting of client funds in his possession, as
well as his failure to keep those funds in an attorney trust account. Id. at ¶ 9. In
Columbus Bar Assn. v. Halliburton-Cohen (2002), 94 Ohio St. 3d 217, 217, 761
N.E.2d 1040, we suspended an attorney for one year, with a conditional stay, for
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conduct adversely reflecting on her fitness to practice law, failure to keep proper
records, and failure to deliver property to which her client was entitled.
{¶ 21} Although “[d]ishonest conduct on the part of an attorney generally
warrants an actual suspension from the practice of law,” Disciplinary Counsel v.
Rooney, 110 Ohio St. 3d 349, 2006-Ohio-4576, 853 N.E.2d 663, ¶ 12, this court
has previously explained that the type of mitigating evidence introduced in this
case can justify imposing a lesser sanction. See Disciplinary Counsel v. Agopian,
112 Ohio St. 3d 103, 2006-Ohio-6510, 858 N.E.2d 368, ¶ 14 (holding that
mitigating evidence demonstrating that Agopian had no prior disciplinary record,
had fully cooperated with the disciplinary process, had accepted responsibility for
his conduct, and had provided over 40 character references counseled against
imposing a greater sanction). We therefore accept the board’s recommendation
that respondent’s one-year suspension be stayed on conditions.
{¶ 22} Based on respondent’s conduct and our precedent, respondent is
hereby suspended from the practice of law in the state of Ohio for one year, all
stayed. As conditions of staying the suspension, respondent is ordered to return
forthwith at his cost all of Steiner’s property in his possession, including the
decorative stone, pay the costs associated with the retrieval of other items not
presently on Steiner’s property, and commit no further disciplinary violations.
{¶ 23} Costs are taxed to respondent.
Judgment accordingly.
PFEIFER, LUNDBERG STRATTON, O’DONNELL, and CUPP, JJ., concur.
MOYER, C.J., and O’CONNOR and LANZINGER, JJ., dissent.
__________________
MOYER, C.J., dissenting.
{¶ 24} I respectfully dissent from the majority decision with respect to the
sanction imposed on respondent. Respondent’s conduct warrants an actual
suspension from the practice of law.
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{¶ 25} “Dishonest conduct on the part of an attorney generally warrants
an actual suspension from the practice of law.” Disciplinary Counsel v. Rooney,
110 Ohio St. 3d 349, 2006-Ohio-4576, 853 N.E.2d 663, ¶ 12. Respondent made
misrepresentations to his client regarding the client’s own property and to his
client’s children regarding the client’s mental health. Respondent even threatened
the client’s son when the son confronted him. This conduct is in clear violation of
DR 1-102(A)(4) (a lawyer shall not engage in conduct involving dishonesty,
fraud, deceit, or misrepresentation).
{¶ 26} Respondent additionally violated four other Disciplinary Rules:
DR 1-102(A)(6), 4-101(B)(2), 5-103(B), and 9-102(B)(3). He sold and otherwise
disposed of his client’s personal belongings without the client’s knowledge or
consent, while the client was in the hospital; he disposed of the client’s assets
under the authority of a power of attorney executed by the client but admitted that
he knew the client would disapprove of this; he lied to the client’s children in
order to gain their consent to his actions; he drafted an inventory of the client’s
property that contained several inaccuracies and failed to account for certain
items; he never gave any money received from the sale of the client’s property to
the client; and he improperly lent money to his client to cover living expenses.
{¶ 27} The cases cited by the majority to support a stayed suspension did
not include the totality of the conduct engaged in by respondent, and only
Disciplinary Counsel v. Agopian, 112 Ohio St. 3d 103, 2006-Ohio-6510, 858
N.E.2d 368, involved a violation of DR 1-102(A)(4). Even Agopian did not
appear to involve an act of dishonesty, but rather “sloppy record keeping” that
resulted in the attorney’s submitting inaccurate fee bills. Id. at ¶ 11. The sum
total of respondent’s actions, including outright dishonesty, should be punished
with an actual suspension for one year, with no time stayed.
O’CONNOR and LANZINGER, JJ., concur in the foregoing opinion.
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O’CONNOR, J., dissenting.
{¶ 28} I disagree with the majority’s decision to adhere to the
recommendation of the Board of Commissioners on Grievances and Discipline
and impose a one-year suspension, all stayed. Based upon respondent’s conduct
and our precedent, I would impose an actual one-year suspension. I therefore
dissent.
{¶ 29} As noted by the majority, this court must weigh evidence of the
aggravating and mitigating factors listed in Section 10 of the Rules and
Regulations Governing Procedure on Complaints and Hearings Before the Board
of Commissioners on Grievances and Discipline. Disciplinary Counsel v.
Broeren, 115 Ohio St. 3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21. When all
of the relevant factors for determining what sanction to impose against respondent
are weighed, it is clear that an actual suspension is necessary.
{¶ 30} I agree with the board’s findings with regard to the mitigating and
aggravating factors in this case. However, I disagree with the majority’s
treatment of these factors. As mitigating factors, I agree with the board’s findings
that respondent lacked a prior disciplinary record, did not act out of a dishonest or
selfish motive, cooperated with the disciplinary process, proved his good
character through references, and has suffered embarrassment from the
accusations of misconduct portrayed in the local media. As aggravating factors, I
agree with the board’s findings that respondent has refused to acknowledge the
wrongful nature of his conduct, other than the lending of money to his client, that
respondent has failed to make restitution or to help Steiner in retrieving his
possessions, and that Steiner was vulnerable and suffered harm.
{¶ 31} The majority recognizes that the primary purpose of the
disciplinary process is to protect the public from lawyers who are unworthy of the
trust and confidence essential to the attorney-client relationship and to allow us to
ascertain the lawyer’s fitness to practice law. Disciplinary Counsel v. Agopian,
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112 Ohio St. 3d 103, 2006-Ohio-6510, 858 N.E.2d 368, ¶ 10. Yet the majority
does not fulfill that purpose because it stays respondent’s suspension. The
majority simply excuses respondent’s conduct by holding that he acted in what he
perceived to be Steiner’s best interest.
{¶ 32} Although respondent may have acted in what he perceived to be
Steiner’s best interests, his unilateral decision to clean up and dispose of Steiner’s
property against his client’s known wishes, his misrepresentations to Steiner’s
children (which were designed to gain their agreement to his plan of action), his
retention of his client’s property, his failure to keep an accurate and complete
inventory and to account for Steiner’s personal property during the cleanup, and
his failure to acknowledge the wrongfulness of his actions undermine the trust and
confidence essential to the attorney-client relationship. All of these factors
demonstrate that an actual suspension of his license to practice law for one year is
warranted.
{¶ 33} While respondent may not have acted with a dishonest motive, he
engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation in
violation of DR 1-102(A)(4). “[D]ishonest conduct on the part of an attorney
generally warrants an actual suspension from the practice of law.” Disciplinary
Counsel v. Rooney, 110 Ohio St. 3d 349, 2006-Ohio-4576, 853 N.E.2d 663, ¶ 12,
citing Disciplinary Counsel v. Beeler, 105 Ohio St. 3d 188, 2005-Ohio-1143, 824
N.E.2d 78, ¶ 44, and Disciplinary Counsel v. Fowerbaugh (1995), 74 Ohio St. 3d
187, 191, 658 N.E.2d 237; see also Disciplinary Counsel v. Stollings, 111 Ohio
St.3d 155, 2006-Ohio-5345, 855 N.E.2d 479, ¶ 13 (“A violation of DR 1-
102(A)(4) ordinarily calls for the actual suspension of an attorney’s license”).
The majority acknowledges that respondent’s conduct was dishonest and in
violation of DR 1-102(A)(4), yet inexplicably declines to impose an actual
suspension. Because of the dishonest nature of respondent’s misconduct, this
court’s precedent requires an actual suspension.
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{¶ 34} Thus, contrary to the majority holding, I would hold that based on
respondent’s conduct and our precedent, respondent’s misconduct warrants an
actual suspension. I therefore respectfully dissent.
MOYER, C.J., and LANZINGER, J., concur in the foregoing opinion.
__________________
Jonathan Coughlan, Disciplinary Counsel, and Joseph M. Caligiuri,
Assistant Disciplinary Counsel, for relator.
Christensen, Christensen, Donchatz, Kettlewell & Owens, Charles J.
Kettlewell, and Kenneth R. Donchatz, for respondent.
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