Disciplinary Counsel v. Payne - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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Office of Disciplinary Counsel v. Payne.
[Cite as Disciplinary Counsel v. Payne (1993), Ohio
St.3d .]
Attorneys at law -- Misconduct -- One-year suspension with six
months suspended -- Conduct prejudicial to the
administration of justice -- Engaging in other conduct
that adversely reflects on fitness to practice law --
Neglect of a legal matter entrusted.
(No. 93-1713 -- 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. 92-29.
On March 31, 1992, Office of Disciplinary Counsel filed a
four-count complaint against respondent, Charles Lee Payne of
East Liverpool, Ohio, Attorney Registration No. 0007369,
charging him with misconduct in violation of the following
Disciplinary Rules: DR 6-101(A)(3) (neglect of a legal matter
entrusted), 1-102(A)(5) (conduct prejudicial to the
administration of justice), and 1-102(A)(6) (engaging in other
conduct that adversely reflects on his fitness to practice
law). Respondent's answer admitted the allegations of
misconduct, but denied that his actions constituted
disciplinary violations. The parties stipulated the facts,
waived a hearing, and agreed that the appropriate sanction was
a public reprimand.
Respondent was retained by the co-executors of the estate
of Evelyn Mae Carey to handle the estate. Respondent initiated
probate proceedings on June 13, 1988. The inventory and
appraisal, due August 13, 1988, were not filed until August 16,
1989, more than a year late. Respondent was also fourteen
months late in filing the Ohio Estate Tax Resident Return. The
late filing resulted in an interest and penalty charge of
$3,149.64, which was ultimately paid by respondent. During one
of the initial meetings with the executors, respondent received
$5,954.81 in funds belonging to the estate. Respondent
deposited the funds in his trust account, rather than in an
estate checking account. On July 26, 1988, he opened an estate
checking account, but did not transfer the $5,954.81 from his

trust account. He made additional deposits of estate funds
into his trust account, including the proceeds of the sale of
Evelyn Mae Carey's residence. In April 1990, in connection
with the closing of the estate, respondent transferred the
funds from his trust account to the estate checking account.
On June 20, 1988, four days after depositing the initial
estate funds in his trust account, he wrote himself a check for
attorney fees in the amount of $5,000. At that time he had not
submitted a fee statement for services rendered to the estate
or performed work entitling him to a fee of $5,000, and he had
not received court approval for any attorney fees. On February
27, 1990, respondent wrote a check on the estate account for
part of the distribution of the estate and the check was
returned for insufficient funds. A valid replacement check was
not issued until after April 17, 1990.
From November 3, 1989 to June 24, 1990, respondent's trust
account was in overdraft status on nine occasions. Moreover,
respondent's other checking accounts, between May 24, 1988 and
August 1990, incurred one hundred forty-two returned check
charges because of insufficient funds.
The panel of the Board of Commissioners on Grievances and
Discipline of the Supreme Court concluded that respondent had
committed a single violation of DR 1-102(A)(5), three
violations of 1-102(A)(6), and two violations of 6-101(A)(3).1
The panel found, in mitigation of respondent's misconduct,
that the estate funds had been accounted for, and that during
the time in question, respondent suffered from personal
problems and business adjustments which have now been
corrected. However, the panel found "respondent's conduct to
have been too reprehensible to go unpunished" and recommended
that respondent be suspended from the practice of law for one
year, with six months suspended.
The board adopted the findings of fact and conclusions of
law of the panel, as well as the recommendation that respondent
be suspended from the practice of law in the state of Ohio for
one year, with six months of the suspension suspended and,
further, that the costs of these proceedings be taxed to him.

Geoffrey Stern, Disciplinary Counsel, and Sally Ann Steuk,
Assistant Disciplinary Counsel, for relator.
Charles W. Kettlewell, for respondent.

Per Curiam. Upon review of the record, we concur in the
findings of the board and adopt its recommendation. Respondent
is hereby suspended from the practice of law in Ohio for one
year, with six months of the suspension suspended.
Costs taxed to respondent.
Judgment accordingly.
A.W. Sweeney, Douglas, Wright, Resnick and Pfeifer, JJ.,
concur.
Moyer, C.J., and F.E. Sweeney, J., dissent and would
suspend respondent from the practice of law for one year.

FOOTNOTE
1 As to Count I, the panel and board found that respondent
had violated DR 6-101(A)(2) as charged. However, this
violation was denominated "neglect of a legal matter entrusted"