Disciplinary Counsel v. O'Leary - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
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Office of Disciplinary Counsel v. O'Leary.
[Cite as Disciplinary Counsel v. O'Leary (1993), Ohio
St.3d .
Attorneys at law -- Misconduct -- Disbarment -- Illegal conduct
involving moral turpitude -- Dishonesty, fraud, deceit or
misrepresentation -- Conduct prejudicial to administration
of justice -- Conduct adversely reflecting on fitness to
practice -- Handling a legal matter not competent to
handle -- Inadequate preparation -- Neglect of an
entrusted legal matter -- Taking action to harass another
-- Knowingly advancing claims unwarranted by law --
Concealment -- Knowing use of false evidence -- False
statement -- Creating false evidence -- Assisting client's
fraudulent conduct -- Illegal conduct -- Disregard of
tribunal's ruling -- Making statements unsupported by
evidence -- Violating known local customs of tribunal --
Discourteous conduct -- Habitual violation of procedural
rules -- Making false accusations against judge or other
adjudicatory official -- Failure to assist in
disciplinary investigation.
(No. 93-433 - - Submitted April 26, 1993- - Decided
September 29, 1993.)
On Certified Report by the Board of Commissioners on
Grievances and Discipline of the Supreme Court, No. 92-03.
Respondent, Joseph J. O'Leary of Canton, Ohio, Attorney
Registration No. 0031183, was admitted to the practice of law
in Ohio in 1938. Relator, Office of Disciplinary Counsel,
filed a forty-eight-count complaint charging O'Leary with
numerous violations of the Code of Professional
Responsibility. O'Leary failed to make timely response to the
complaint. A panel of this court's Board of Commissioners on
Grievances and Discipline ("board") granted relator's motion
for default and recommended O'Leary's disbarment.
The complaint arose from O'Leary's conduct during probate
proceedings following the death of Maureen Kaviris. Judge
Willard F. Spicer of the Summit County Probate Court appointed
Kaviris' mother, Ruth Bowman, as administrator of Kaviris'
estate, and Bowman hired O'Leary as the estate's attorney.

On March 3, 1986, twenty-one months after her appointment,
Bowman filed an inventory and schedule of assets with the
probate court. The inventory, prepared by O'Leary, reported
two assets with a total value of $16,597.
On May 2, 1986, Judge Spicer removed Bowman as
administrator, citing her late filing of the inventory and
repeated refusals to obey court orders. The judge also removed
O'Leary as attorney for the estate. On May 30, Judge Spicer
ordered Bowman and O'Leary to turn over all estate assets and
financial records to the new administrator, Peter T. Zackaroff.
However, Bowman and O'Leary defied this order, and on
December 18, 1986, Judge Spicer held them in contempt of
court. Later that month, O'Leary finally surrendered estate
assets in the amount of $12,459.36, but did not turn over any
financial records. Moreover, he paid the money to the probate
court, rather than turning it over directly to Zackaroff as the
court had ordered.
On August 19, 1986, Zackaroff filed a complaint in the
probate court against O'Leary and Bowman, alleging that they
had concealed estate assets. Specifically, $10,000 in life
insurance proceeds had been paid to the estate in 1984, yet
O'Leary and Bowman had not listed it on the March 1986
inventory. O'Leary responded with a "Motion to Quash." He
admitted failing to disclose the $10,000 but claimed that the
failure was inadvertent. O'Leary attached an "Amended
Inventory and Appraisal" to his motion; however, the amended
inventory showed total assets valued at only $1,093 more than
the original inventory had shown and thus failed to account
fully for the $10,000.
On January 9, 1987, O'Leary and Bowman filed applications
for approval of attorney and fiduciary fees that they had
already paid to themselves. The probate court denied
approval. Despite this, O'Leary did not return his fee to the
estate.1
During the Kaviris estate litigation, O'Leary refused to
attend or participate in scheduled probate court hearings on
eight occasions. He was found in contempt of court three
times, and was even jailed once, but continued his contemptuous
behavior.
Moreover, O'Leary filed thirteen affidavits of prejudice
and motions to disqualify judges and a referee involved in the
litigation. In the original probate action, O'Leary filed two
affidavits of prejudice against Judge Spicer as well as a
motion to disqualify him. The Chief Justice ruled that
O'Leary's allegations did not support a finding of prejudice
and dismissed both affidavits.
Undeterred, O'Leary filed yet another affidavit of
prejudice against Judge Spicer to disqualify him from hearing
Zackaroff's concealment action. On May 21, 1987, the Chief
Justice again found that the affidavit did not support a
finding of prejudice; however, to avoid even the appearance of
prejudice, he assigned the concealment action to a visiting
judge, Robert C. Pollex of the Wood County Probate Court.
O'Leary then proceeded to file at least seven unsuccessful
affidavits of prejudice and motions for disqualification
against Judge Pollex, even though the judge had no prior
connection to the litigation and did not know O'Leary or the

other litigants.
On May 3, 1988, O'Leary filed a complaint in prohibition
in this court, seeking to prohibit Judge Spicer from enforcing
an order issued on February 23, 1987. O'Leary subsequently
filed a notice of dismissal, and this court accordingly
dismissed the action. O'Leary then sought reconsideration of
the very dismissal he had himself requested.
O'Leary failed to cooperate with relator's investigation.
After Judge Spicer filed a grievance on June 1, 1988, relator
sent O'Leary two letters of inquiry. On July 31, 1988, O'Leary
finally replied, asking for an extension. Relator granted an
extension to September 30, but O'Leary still did not respond.
On December 13, 1988, relator threatened to file a formal
complaint unless O'Leary responded, but O'Leary ignored this
letter. On January 26, 1989, relator again asked O'Leary to
respond. O'Leary sent copies of briefs that he had filed in
various stages of the Kaviris litigation, but never responded
to Judge Spicer's complaint.
On February 4, 1991, after several attempts to reach
O'Leary, relator unilaterally scheduled O'Leary's deposition.
The board issued a subpoena duces tecum requiring O'Leary to
produce documents pertaining to four cases that were part of
the Kaviris litigation. O'Leary appeared, but without the
subpoenaed documents; he claimed he misunderstood the subpoena.
The deposition was continued, and the board issued a
detailed subpoena duces tecum ordering O'Leary to produce
"[a]ll materials * * * in your possession or under your control
relating * * * to" seven specific cases. The subpoena
specifically included records and documents pertaining to
"financial accounts and/or financial assets, administered,
controlled, used, or maintained by or on behalf of Ruth E.
Bowman, Joseph O'Leary, or any other person or entity, in
connection with any of the aforesaid cases * * *." However,
O'Leary produced only two documents, and only one was related
to any of the cases specified in the subpoena. The second
deposition was held nearly three months after the first, yet
O'Leary complained of insufficient time to locate his files.
O'Leary took an intransigent stance in his depositions.
He justified his repeated refusals to attend hearings by
claiming the probate court's referees lacked jurisdiction, the
judges were prejudiced against him, and the concealment action
was "bogus." O'Leary also insisted that he acted properly by
refusing to surrender estate assets to the court-appointed
administrator.
Relator filed a formal complaint with the board on
February 19, 1992. The complaint charged O'Leary with single
or multiple violations of: DR 1-102(A)(3) (illegal conduct
involving moral turpitude); 1-102(A)(4) (dishonesty, fraud,
deceit, or misrepresentation); 1-102(A)(5) (conduct prejudicial
to administration of justice); 1-102(A)(6) (conduct adversely
reflecting on fitness to practice); 6-101(A)(1) (handling a
legal matter that he was not competent to handle); 6-101(A)(2)
(inadequate preparation); 6-101(A)(3) (neglect of legal matter
entrusted); 7-102(A)(1) (taking action to harass another);
7-102(A)(2) (knowingly advancing claims unwarranted by law);
7-102(A)(3) (concealment); 7-102(A)(4) (knowing use of false
evidence); 7-102(A)(5) (false statement); 7-102(A)(6) (creating

false evidence); 7-102(A)(7) (assisting client's fraudulent
conduct); 7-102(A)(8) (illegal conduct); 7-106(A) (disregard of
tribunal's ruling); 7-106(C)(1) (making statements unsupported
by evidence); 7-106(C)(5) (violating known local customs of
tribunal); 7-106(C)(6) (discourteous conduct); 7-106(C)(7)
(habitual violation of procedural rules); and 8-102(B) (making
false accusations against a judge or other adjudicatory
official). The complaint further charged O'Leary with
violating former Gov. Bar R. V(5)(a) (failure to assist in
disciplinary investigation).
Relator sent a copy of the complaint to O'Leary by
certified mail, but it went unclaimed. Repeated attempts at
personal service failed. O'Leary did receive and respond to a
letter from the board designating the hearing panel. Relator
then sent a copy of the complaint to the address on O'Leary's
letterhead. O'Leary filed no response.
On November 6, 1992, relator filed a motion for default.
In the depositions of Judge Spicer, Judge Pollex, and O'Leary
himself, the panel found sufficient prima facie evidence to
support the complaint's allegations. Accordingly, the panel
granted relator's default motion and recommended disbarment.
The board concurred.2

Geoffrey Stern, Disciplinary Counsel, and Harald F. Craig
III, Assistant Disciplinary Counsel, for relator.

Per Curiam. We concur in the board's findings and
recommendation. Joseph J. O'Leary is permanently disbarred
from the practice of law in Ohio. Costs taxed to respondent.

Judgment accordingly.
Moyer, C.J., A.W. Sweeney, Douglas, Wright, Resnick, F.E.
Sweeney and Pfeifer, JJ., concur.

FOOTNOTE
1 On June 25, 1991, the probate court ordered that the money
retained by O'Leary, totaling $6,829.70, be deemed payment in
full for his services in all cases connected with the Kaviris
estate. However, this order reflected the court's belief that
it would be futile to try to collect the money from O'Leary.
The court did not find him entitled to the fee.
2 On March 30, 1993, respondent filed a motion to dismiss
(presumably based on this court's lack of jurisdiction over
this disciplinary matter) and a motion to strike depositions of
Judge Spicer and Judge Pollex. Upon review of the record, we
find respondent's motions to be without merit and hereby
overrule them.