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

	ROMINGER LEGAL
		Ohio Court Cases and Opinions - Ohio Legal Research
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -RESEARCH

This court case was taken from the web sites of the Ohio Courts. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

OFFICE OF DISCIPLINARY COUNSEL v. YURICH.
[Cite as Disciplinary Counsel v. Yurich (1997), ___ Ohio St.3d ___.]
Attorneys at law -- Misconduct -- Public reprimand -- Knowingly revealing
secrets or confidences of a client -- Using confidences or secrets of a
client to the advantage of oneself without the client's consent -- False,
fraudulent, misleading, deceptive, self-laudatory, or unfair statements --
Direct mail solicitation not containing disclosures mandated by the
Disciplinary Rules.
(No. 96-2433 -- Submitted January 22, 1997 -- Decided April 30, 1997.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 95-75.

In April 1992, respondent, Robert R. Yurich of Cleveland, Ohio, Attorney
Registration No. 0025387, prepared a living trust for Carl and Ruth Grasser
("trustors"). The living trust designated Kenneth Grasser, a son of the trustors, as
successor trustee and Charles Grasser, a grandson of the trustors, as the alternate
successor trustee. Bruce Grasser, a second son of the trustors and Charles's father,
was not named in the trust either as successor trustee or as beneficiary.

Carl Grasser died on April 3, 1994. In July 1994, as part of a onetime
mailing to two hundred fifty successor trustees named in trusts which he had
prepared, respondent sent a letter to Carl's grandson, Charles Grasser, incorrectly
stating that his parents, rather than his grandparents, had employed respondent to
establish a living trust for them. The remainder of the letter was directed to the
advantages of living trusts over other estate planning alternatives, and stated that
respondent "invite[s] you, as a Successor Trustee, to attend one of my up-coming
Seminars. I believe this Seminar would greatly help your understanding of your
parent's [sic] trust and what your responsibility will be in the event of their

disability or death. This would also give you an opportunity to consider whether a
Living Trust makes sense for you. One benefit of having a Living Trust prepared
by my office is that I will provide a family discount from my established fees." In
his letter, respondent then set out the time and place of three future seminars on
living trusts to be given by respondent.

The letter to Charles Grasser was directed to his former address, that of his
father, Bruce Grasser, the son of the trustors who had not been named in the living
trust. Bruce, who had implied permission from Charles to examine his mail before
forwarding it to him, opened the letter from respondent and showed it to a
neighbor, who was an attorney. As a result, Bruce filed a grievance with the
Board of Commissioners on Grievances and Discipline of the Supreme Court
("board").

Based on this grievance, in October 1995, relator, Office of Disciplinary
Counsel, filed a complaint against respondent charging in one count that by
sending the letter, respondent had violated DR 4-101(B)(1) (knowingly revealing
the secrets or confidences of a client) and 4-101(B)(3) (using the confidences or
secrets of a client to the advantage of oneself without the client's consent). In a
second count relator charged that the letter constituted a direct mail solicitation in
violation of 2-101(A)(1) (false, fraudulent, misleading, deceptive, self-laudatory,
or unfair statements) and 2-101(F)(2)(e) (direct mail solicitation must contain in
the text and on the envelope the words "ADVERTISEMENT ONLY" in red ink
and in type no smaller than 10 point). Respondent filed an answer and the matter
was heard before a panel of the board on March 15, 1996.

It was stipulated before the panel that the letter was sent to Bruce's address
by mistake and that the letter incorrectly stated that Charles's parents rather than
his grandparents were the trustors. Respondent in his testimony admitted that the

2

trustors did not authorize sending the letter. Nevertheless, respondent argued
before the panel that the letter did not convey a client confidence, since it
incorrectly stated that Charles's parents had named him as successor trustee and
that Charles' parents were not respondent's clients. Respondent further asserted
that even if the letter had correctly informed Charles that his grandparents had
named him successor trustee, no client confidence was breached, since the matter
conveyed was not confidential. It is also apparent from the record that neither the
clients nor the person to whom the letter was addressed had filed the grievance.

As to the charges in count two, respondent contended that the letter did not
constitute a targeted mailing and was constitutionally protected commercial
speech.

The panel found that respondent's clients, the trustors, had not given
respondent permission to discuss with their grandson his status as successor
trustee and that respondent had no implied authority to disclose that information to
the grandson. Additionally, the panel found that respondent had used confidential
information by including the grandson, a successor trustee, on respondent's
seminar mailing list. The panel concluded that as to count one respondent had
violated DR 4-101(B)(1) and 4-101(B)(3).

With respect to count two, the panel found that respondent's letter was
misleading in that it suggested that Charles Grasser's attendance at a seminar was
necessary. Further, portions of the letter were self-laudatory and therefore
violated DR 2-101(A)(1). The panel also found that since the letter was
specifically sent to successor trustees, it was targeted mail requiring disclosures
mandated by the Disciplinary Rules. The panel concluded that respondent had
violated DR 2-101(F)(2)(e). Based on the two violations, the panel recommended
that respondent be publicly reprimanded.

3

The board adopted the findings, conclusions, and recommendation of the
panel.
___________________
Geoffrey
Stern,
Disciplinary Counsel, and Harald F. Craig III, Assistant
Disciplinary Counsel, for relator.

Mark H. Aultman, for respondent.
___________________
Per
Curiam. We adopt the findings and conclusions of the board. An
attorney's disclosure of client confidences has heretofore warranted a public
reprimand. Geauga Cty. Bar Assn. v. Psenicka (1991), 62 Ohio St.3d 35, 577
N.E.2d 1074. Although in this case respondent's disclosure was inadvertent,
respondent's negligence enabled a son to discover that he was to be disinherited
by his parents, one of whom was still living.

In addition, the board found that respondent's mailing was a "targeted
mailing" and, as such, was subject to the restrictions of DR 2-101(F)(2)(e). That
rule reads in part:

"A lawyer or law firm may engage in written solicitation by direct mail
addressed to persons or groups of persons who may be in need to specific legal
service * * *, provided the letter of solicitation * * * (e) Includes in its text and on
the envelope in which mailed, in red ink and in type no smaller than 10 point, the
recital -- `ADVERTISEMENT ONLY.' "

We adopted DR 2-101(F)(2), directed to "targeted mailings," in response to
Shapero v. Kentucky Bar Assn. (1988), 486 U.S. 466, 108 S.Ct. 1916, 100 L.Ed.2d
475, which held that direct mail by an attorney targeted to specific recipients
knowing they are likely to need a particular legal service offered by the attorney is
constitutionally protected commercial speech. A Disciplinary Rule such as the

4

one in DR 2-101(F)(2) was specifically considered in Florida Bar v. Herrick
(Fla.1990), 571 So.2d 1303, certiorari denied (1991), 501 U.S. 1205, 111 S.Ct.
2798, 115 L.Ed.2d 972. In that case, the Florida Supreme Court publicly
reprimanded a lawyer who mailed unsolicited letters not marked as advertising to
prospective clients. In Matter of Anonymous (Ind.1994), 630 N.E.2d 212, 215, the
Indiana Supreme Court, faced with a similar situation, sanctioned the attorneys
with a private reprimand "based on the unique circumstances and factors in
mitigation present in these cases."

Respondent not only "targeted" his mailing, but through the conveniences
of computer programming, he also was able to "personalize" it, that is, address it
to the particular recipient with a comment (albeit erroneous in this case) about
"your parent(s)." As the United States Supreme Court said in Shapero at 476, 108
S.Ct. at 1923, 100 L.Ed.2d at 486:

"[A] letter that is personalized (not merely targeted) to the recipient presents
an increased risk of deception, intentional or inadvertent. It could, in certain
circumstances, lead the recipient to overestimate the lawyer's familiarity with the
case or could implicitly suggest that the recipient's legal problem is more dire than
it really is. * * * Similarly, an inaccurately targeted letter could lead the recipient
to believe she has a legal problem that she does not actually have * * *."

Respondent is hereby publicly reprimanded. Costs taxed to the respondent.
Judgment accordingly.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER and LUNDBERG
STRATTON, JJ., concur.

COOK, J., dissents.

COOK, J., dissenting. I believe that respondent's conduct warrants a more
severe sanction than a public reprimand.

5

The public, and particularly the elderly public, is vulnerable to the tactics
employed by this respondent. See, generally, Note, Client Outreach 101:
Solicitation of Elderly Clients by Seminar under the Model Rules of Professional
Conduct (1994), 62 Fordham L.Rev. 1547. Accordingly, it is this court's
responsibility to promulgate and enforce "prophylactic regulation in furtherance of
the State's interest in protecting the lay public." Ohralik v. Ohio State Bar Assn.
(1978), 436 U.S. 447, 468, 98 S.Ct. 1912, 1925, 56 L.Ed.2d 444, 461, rehearing
denied (1978), 439 U.S. 883, 99 S.Ct. 226, 58 L.Ed.2d 198.

Our Code of Professional Responsibility limits the manner in which an
attorney may solicit clients. Respondent exceeded several of those limits.

The mailing at issue was designed to generate traffic for respondent's living
trust seminars. It was blindly sent as part of a mass mailing without regard to the
recipient's individual circumstance. In all, respondent sent two hundred fifty
mailings of similar content.

To induce seminar attendance, respondent improperly personalized the
mailing, directing it toward the recipient's sense of responsibility stemming from
being named successor trustee. See DR 2-101(F)(2)(b). In fact, the language and
tone of the mailing misleadingly suggested that attendance was necessary for a
trustee to faithfully discharge his duties under the trust. See DR 2-101(A)(1).
Further, without permission of his clients, the respondent (two hundred fifty times)
disclosed client confidences in pursuit of personal advantage. See DR 4-
101(B)(1) and (3). By disclosing terms of his clients' trusts, the respondent not
only increased his potential client base, but also used a relative's creation of a
living trust to advance the general wisdom of that estate planning tactic.

The mailing was also misleading in other ways. Respondent encouraged the
recipient of the mailing to attend his seminar to determine "whether a Living Trust

6

makes sense for you." He implied that a living trust would benefit the recipient in
any case, however, by stating:

"[E]veryone, regardless of their age, who owns real property, should
consider a Living Trust for themselves. You may not realize it but your estate
will eventually be controlled by your will, your attorney and the probate court,
unless you consider a logical alternative. This alternative is a Living Trust."
(Emphasis and bold type sic.)

Respondent's mailing also discounted the size of one's estate as an
appropriate factor to consider before establishing a living trust, by stating:

"While trusts have been around for decades, many individuals and their
attorneys have perceived trusts to be suitable only for the very rich. Fortunately,
in recent years, several area attorneys have started to educate the general public as
to the advantages of using Living Trusts to avoid Probate for families and
individuals with modest estates."

Because of the scope of respondent's disregard for the principles embodied
in our Code of Professional Responsibility regarding client solicitation, I would
suspend him from the practice of law for six months.

7