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

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[Cite as Disciplinary Counsel v. Ryan, 89 Ohio St.3d 240, 2000-Ohio-145.]

OFFICE OF DISCIPLINARY COUNSEL v. RYAN.
[Cite as Disciplinary Counsel v. Ryan (2000), 89 Ohio St.3d 240.]
Attorneys at law -- Misconduct -- Permanent disbarment -- Misuse of client
funds -- Pattern of neglect of client interests -- Failure to cooperate in
disciplinary investigations -- Previous discipline for similar conduct.
(No. 99-2268 -- Submitted February 23, 2000 -- Decided June 21, 2000.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 98-101.

On June 9, 1999, relator, Office of Disciplinary Counsel, filed an amended
complaint charging respondent, Irving Andrew Ryan of Berea, Ohio, Attorney
Registration No. 0033416, with violating several Disciplinary Rules and Gov.Bar
R. V(4)(G) for failing to cooperate in relator's investigation. Respondent did not
answer, and the matter was submitted to a panel of the Board of Commissioners on
Grievances and Discipline of the Supreme Court ("board") on relator's motion for
default judgment.

Based on the complaint, the amended complaint, the motion for default
judgment, and the attached affidavits, the panel found that in 1983, respondent,
who had been the administrator of the estate of Donald L. Swihart, was appointed
trustee of a trust whose sole beneficiary was Donald Swihart's son, Michael

Swihart. Respondent's final account as administrator, filed in 1989, indicated that
$82,934.04 was transferred from the estate to the trust, including $12,941.90 in
securities. For several years, Michael Swihart tried unsuccessfully to contact
respondent regarding the status of the trust, and finally, in 1997, Swihart removed
him as trustee. After discovering that the $12,941.90 in securities, in addition to
the other property, had not been transferred from the estate to the trust, the
successor trustee obtained a probate court order compelling respondent to file an
accounting. During the proceedings on that accounting, respondent admitted that
he had commingled funds from the trust. The court found respondent in contempt
and sentenced him to three days of incarceration, suspended.

The panel also found that in October 1998, respondent agreed to represent
Gretchen Herbkersman, in preparing a deed. When Herbkersman telephoned
respondent in February 1999, she received a recorded message that respondent had
retired in October 1998. Respondent did not complete any legal work for
Herbkersman.

The panel concluded that respondent's actions in serving as trustee violated
DR 1-102(A)(4) (engaging in conduct involving dishonesty, fraud, deceit, or
misrepresentation), 1-102(A)(5) (engaging in conduct prejudicial to the
administration of justice); 1-102(A)(6) (engaging in conduct that adversely reflects
on the lawyer's fitness to practice law), 7-101(A)(3) (prejudicing or damaging a

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client during the course of the professional relationship), and 9-102(B)(3) (failing
to maintain complete records of all funds, securities, and other properties of a
client coming into the possession of the lawyer and render appropriate accounts to
the client regarding them).

The panel also concluded that in failing to act on behalf of Gretchen
Herbkersman, respondent had violated DR 1-102(A)(6) and 6-101(A)(3) (a lawyer
shall not neglect a legal matter entrusted to him). The panel finally concluded that
respondent, in failing to cooperate with the investigation of the respective
grievances, violated Gov.Bar R. V(4)(G).

Noting that respondent had previously been disciplined by the Supreme
Court of Ohio in Cleveland Bar Assn. v. Ryan (1995), 73 Ohio St.3d 285, 652
N.E.2d 971, for neglect of client matters, the panel recommended that respondent
be permanently disbarred from the practice of law in the state of Ohio. The board
adopted the findings, conclusions, and recommendation of the panel.
__________________

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

Per Curiam. We adopt the findings, conclusions, and recommendation of
the board. Respondent engaged in a pattern of deceit, admitted to commingling

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client funds, neglected legal matters entrusted to him, and failed to cooperate in the
investigations. Further, respondent has been previously disciplined by this court
for similar conduct. Cleveland Bar Assn. v. Ryan. We have held in the past that
misuse of client funds and a pattern of neglect of client interests warrants
disbarment. Cincinnati Bar Assn. v. Wolosin (1999), 84 Ohio St.3d 401, 403, 704
N.E.2d 566, 568; Cleveland Bar Assn. v. Armon (1997), 78 Ohio St.3d 497, 500,
678 N.E.2d 1371, 1373. Respondent is hereby permanently disbarred from the
practice of law in the state of Ohio. 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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