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

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OFFICE OF DISCIPLINARY COUNSEL v. BANDY.
[Cite as Disciplinary Counsel v. Bandy (1998), ___ Ohio St.3d ___.]
Attorneys at law -- Misconduct -- Two-year suspension with eighteen months
stayed -- Engaging in conduct involving dishonesty, fraud, deceit, or
misrepresentation -- Engaging in conduct prejudicial to the administration
of justice -- Accepting employment when professional judgment reasonably
may be affected by financial or personal interest.
(No. 97-1742 -- Submitted December 9, 1997 -- Decided March 25, 1998.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 96-102.

In 1989, Kenneth D. Meredith engaged respondent, Erwin J. Bandy of
Paulding, Ohio, Attorney Registration No. 0025268, to draft a will. The will
drafted by respondent included a provision which canceled a $10,000 note
respondent owed to Meredith, and another which gave respondent first right to
purchase furniture and household goods from Meredith's estate. The will was
witnessed by respondent and by Christine R. Holtsberry, both of whom signed the
attestation, "We, whose names are hereto subscribed, Do Certify that on the 30th
day of January, 1990[,] the Testator above named, subscribed his name to this
instrument in our presence and in the presence of each of us, and at the same time,
in our presence and hearing, declared the same to be his Last Will and Testament,
and requested us and each of us, to sign our names thereto as witnesses to the
execution thereof, which we hereby do in the presence of the testator and of each
other, on the day of the date of the said Will, and write opposite our names our
respective places of residence."

Meredith died in May 1996, and the executor employed respondent as
counsel for the estate. In June 1996 at respondent's request, Debra L. Mericle, his

former secretary, signed a blank signature line on the will, thereby purporting to
be an additional witness to the Meredith will. In January 1990, Mericle had
observed Meredith sign what she believed to be his will, but she did not sign as a
witness then. Respondent filed the Meredith will for probate in the Paulding
County Probate Court in July 1996. Shortly thereafter, the executor discharged
respondent and employed new counsel to represent the estate. In July 1996,
respondent disclaimed his interest under the will and paid the debt he owed to the
estate.

In December 1996, relator, Office of Disciplinary Counsel, filed a complaint
charging that respondent's actions violated DR 1-102(A)(4) (engaging in conduct
involving dishonesty, fraud, deceit, or misrepresentation), and 1-102(A)(5)
(engaging in conduct prejudicial to the administration of justice), and 5-101(A)(1)
(accepting employment where the lawyer's professional judgment reasonably may
be affected by the lawyer's financial or personal interest). Respondent's answer
admitted the actions alleged but denied any disciplinary violation.

A panel of the Board of Commissioners on Grievances and Discipline of the
Supreme Court ("board") heard the matter on May 19, 1997, found the facts as
alleged, and concluded that respondent had violated the Disciplinary Rules as
charged. After receiving evidence in mitigation, including four character
witnesses and nineteen letters describing respondent's outstanding qualities as an
attorney, the panel recommended that respondent be suspended from the practice
of law for two years with eighteen months of the suspension stayed. The board
adopted the findings, conclusions, and recommendation of the panel.
__________________

Jonathan E. Coughlan, Disciplinary Counsel, and Lori J. Brown, Assistant
Disciplinary Counsel, for relator.

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Douglas L. Perras, for respondent.
__________________

Per Curiam. In 1989, respondent drafted a will for a client in which the
respondent was named a beneficiary. In 1996, we amended DR 5-101(A) to add
subparagraph (2), which prohibits a lawyer from preparing such a will except in
very limited circumstances. Because the will in this case was prepared prior to
1996, we are guided by Krischbaum v. Dillon (1991), 58 Ohio St.3d 58, 567
N.E.2d 1291, in which we held that sanctions would be imposed in situations such
as this only if the lawyer who drafted the will failed to rebut the presumption of
undue influence.

In the instant case the board concluded that relator had presented clear and
convincing evidence that respondent's drafting of the will was reasonably affected
by his own interests, particularly in the cancellation of the debt he owed to the
testator, and thus was a violation of DR 5-101(A)(1). We agree with the board.

More disturbing to us, as it was to the board, was respondent's attempt to
validate Meredith's will six years after its execution. After Meredith's death,
respondent noted that he was both a beneficiary and witness to the will. At the
time, respondent believed that if a beneficiary was one of only two witnesses to a
will, the entire will would be invalid. Respondent therefore sought and obtained
the signature of his former secretary as a third witness to Meredith's will. He then
presented the will with the additional signature for probate.

Respondent obtained the additional signature, believing that a witness who
saw a will signed could attest to it at a later date and that his former secretary
observed Meredith signing a document six years earlier that she thought was his
will. However, it is not enough that a witness to a will observes the testator's
signature. The statute is clear that the witness must subscribe the will in the

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presence of the testator. R.C. 2107.03 provides that "[a] will shall be signed at the
end by the party making it * * * and be attested and subscribed in the presence of
such party, by two or more competent witnesses who saw the testator subscribe, or
heard him acknowledge his signature." (Emphasis added.) In addition, the
attestation to this will states that the document was signed by the witnesses in the
presence of the testator. Although respondent claims that his acts were based on a
misunderstanding of the law, and were unintentional, by obtaining his secretary's
signature, respondent induced her to subscribe to a false statement. By filing the
document with the probate court, he misrepresented the facts to that tribunal.

We have previously expressed our concern about attorneys who take a
cavalier attitude toward statutory requirements and the truth of the representations
they make. In Lorain Cty. Bar Assn. v. Papcke (1998), 81 Ohio St.3d 91, 689
N.E.2d 549, we disciplined an attorney who acknowledged the signatures of
persons who had not appeared before her. We noted that such "activities are a
fraud on the court where the documents are filed and on all those who rely on such
documents, [and that] this casual attitude toward statutory requirements breeds
disrespect for the law and for the legal profession." In Cuyahoga Cty. Bar Assn. v.
Petrancek (1996), 76 Ohio St.3d 571, 669 N.E.2d 828, we disciplined an attorney
who had his client sign documents in blank to be completed later. We said that the
attorney implied that "the stringent requirements of fiduciary responsibility are
mere formalities." Id. at 574, 669 N.E. 2d at 830. As we said in Disciplinary
Counsel v. Greene (1995), 74 Ohio St.3d 13, 16, 655 N.E.2d 1299, 1301, "Respect
for the law and our legal system, through both an attorney's words and actions,
should be more than a platitude." If lawyers do not respect the law, we cannot
expect others to respect lawyers or the law.

4

In this case respondent, by inducing his secretary to sign a false statement
and then by filing the document with the probate court, violated DR 1-102(A)(4)
and (5). We said in Disciplinary Counsel v. Fowerbaugh (1995), 74 Ohio St.3d
187, 190, 658 N.E.2d 237, 240, and recently repeated in Cleveland Bar Assn. v.
Knowlton (1998), 81 Ohio St.3d 76, 689 N.E.2d 538, "[w]hen an attorney engages
in a course of conduct resulting in a finding that the attorney has violated DR 1-
102(A)(4), the attorney will be actually suspended from the practice of law for an
appropriate period of time." Here, respondent's violations of both DR 1-102(A)
and DR 5-101(A)(1) warrant an actual suspension.

We therefore adopt the recommendation of the board. Respondent is hereby
suspended from the practice of law for two years with eighteen months of the
suspension stayed. Costs taxed to respondent.
Judgment accordingly.

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

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