Disciplinary Counsel v. Potter ( 2010 )

[Cite as Disciplinary Counsel v. Potter, 126 Ohio St.3d 50, 2010-Ohio-2521.]
DISCIPLINARY COUNSEL v. POTTER.
[Cite as Disciplinary Counsel v. Potter, 126 Ohio St.3d 50, 2010-Ohio-2521.]
Attorneys — Misconduct — Violation of Prof.Cond.R. 8.4(c), but with significant
mitigating factors — One-year license suspension stayed on condition.
(No. 2010-0288 ⎯ Submitted March 31, 2010 ⎯ Decided June 10, 2010.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 09-049.
__________________
Per Curiam.
{¶ 1} Respondent, Albert Loron Potter II of Bowling Green, Ohio,
Attorney Registration No. 0023775, was admitted to the practice of law in Ohio in
1982.
{¶ 2} Relator, Disciplinary Counsel, charged respondent with violating
Prof.Cond.R. 8.4(b) (prohibiting illegal acts that reflect adversely on the lawyer’s
honesty or trustworthiness), 8.4(c) (prohibiting conduct involving dishonesty,
fraud, deceit, or misrepresentation), and 8.4(h) (prohibiting conduct that adversely
reflects on the lawyer’s fitness to practice law). The parties stipulated that the
respondent’s conduct violated Prof.Cond.R. 8.4(c) and 8.4(h), and relator
dismissed the 8.4(b) charge.
{¶ 3} A panel of board members heard the case and, based on the
submitted stipulations and other evidence, issued findings of fact and conclusions
of law. The panel found clear and convincing evidence that respondent violated
the rules as stipulated. The parties submitted a proposed sanction of a one-year
suspension, all conditionally stayed, which the panel also recommended. The
Board of Commissioners on Grievances adopted the panel’s findings of fact,
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conclusions of law, and recommended sanction. We accept the board’s findings
and conclusions, and we adopt the recommended sanction.
Stipulated Misconduct
{¶ 4} The respondent began representing a client in 2003, and the client
granted respondent a power of attorney. A previous attorney-in-fact had depleted
the client’s savings, leaving him no funds for his nursing-home care and medical
needs. The respondent controlled his client’s finances, was responsible for
decisions relating to the client’s medical care, and handled a variety of legal
matters such as pursuing litigation against the former attorney-in-fact and
terminating the client’s family trust. To pay for his client’s medical care,
respondent mortgaged some of the client’s property.
{¶ 5} In 2006, the client died, and respondent was appointed executor of
the estate. Respondent determined it necessary to sell farm property that the
client had owned to satisfy the mortgage that had paid for the client’s care. The
sole beneficiary of the client’s estate agreed that the sale was necessary. A local
appraiser approved by the probate court appraised the property at $183,750, and
the appraisal was included in the inventory and appraisal of the estate also
approved by the probate court.
{¶ 6} Respondent wanted to buy the farm property. Although he initially
mentioned this fact to the beneficiary of his client’s estate, he did not pursue the
possibility of a sale with her. Instead, respondent contacted a friend and asked the
friend to purchase the property in his own name while using funds from
respondent. In August 2007, respondent, as executor for the estate, entered into a
contract to sell the farm property to the friend and the friend’s wife for the
appraised value. The cashier’s check the friend used to purchase the property was
drawn from respondent’s personal funds. The check did not include a remitter.
At the time of the transaction, respondent did not disclose his involvement in the
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purchase of the property to the beneficiary of the estate, the probate court, or the
closing agent.
{¶ 7} In May 2008, respondent self-reported his misconduct to relator.
Respondent cooperated with the investigation, met with the beneficiary of the
estate to disclose the misconduct, and amended certain filings in the probate court
to reflect his purchase of the property. Respondent continued to serve as executor
of the estate until it was closed in August 2009, and no actions have been filed in
probate court complaining of the real estate transaction. Respondent agreed to
waive extraordinary legal fees, totaling $90,969.47, owed him by the estate. It
appears that no one lost money due to the respondent’s misconduct.
Sanction
{¶ 8} When imposing sanctions for attorney misconduct, we consider all
relevant factors, including the ethical duties that the lawyer violated and the
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(B) 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).
{¶ 9} The board found that factors mitigating respondent’s conduct
included his lack of a prior disciplinary record, BCGD Proc.Reg. 10(B)(2)(a), his
effort to rectify the consequences of his misconduct, 10(B)(2)(c), his full
cooperation in the investigation and his self-reporting to Disciplinary Counsel,
10(B)(2)(d), and his otherwise good character and reputation, 10(B)(2)(e). The
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board found that the lone aggravating factor in relation to respondent’s conduct
was that he had acted with a dishonest or selfish motive, BCGD Proc.Reg.
10(B)(1)(b).
{¶ 10} A violation of Prof.Cond.R. 8.4(c) will typically result in an actual
suspension from the practice of law unless “significant mitigating factors that
warrant a departure” from that principle are present. Disciplinary Counsel v.
Rohrer, 124 Ohio St.3d 65, 2009-Ohio-5930, 919 N.E.2d 180, ¶ 45. We agree
with the board and the parties that this case is one in which significant mitigating
factors are present, and those factors lead us to conclude that respondent is
unlikely to commit future misconduct. See Disciplinary Counsel v. Niermeyer,
119 Ohio St.3d 99, 2008-Ohio-3824, 892 N.E.2d 434, ¶ 13.
{¶ 11} Respondent is therefore suspended from the practice of law in
Ohio for one year; however, the suspension is stayed on the condition that he
commit no further misconduct during the stayed suspension period. If respondent
violates this condition, the stay will be lifted, and respondent will serve the one-
year suspension. Costs are taxed to respondent.
Judgment accordingly.
PFEIFER, LUNDBERG STRATTON, O’CONNOR, O’DONNELL, LANZINGER, and
CUPP, JJ., concur.
BROWN, C.J., not participating.
__________________
Jonathan E. Coughlan, Disciplinary Counsel, and Stacy Solochek
Beckman, Assistant Disciplinary Counsel, for relator.
Kegler, Brown, Hill & Ritter Co., L.P.A., and Geoffrey Stern, for
respondent.
______________________
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