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

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[Cite as Disciplinary Counsel v. Beeler, 105 Ohio St.3d 188, 2005-Ohio-1143.]

DISCIPLINARY COUNSEL v. BEELER.
[Cite as Disciplinary Counsel v. Beeler, 105 Ohio St.3d 188, 2005-Ohio-1143.
Attorneys Misconduct Engaging in conduct involving deceit, fraud,
misrepresentation, or dishonesty Engaging in conduct that adversely
reflects on fitness to practice law Handling a legal matter without
adequate preparation Neglecting an entrusted legal matter Concealing
a matter for which disclosure is required Two-year suspension, 18
months stayed, on conditions.
(No. 2004-1395 -- Submitted January 11, 2005 -- Decided March 30, 2005.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 03-068.
__________________

LUNDBERG STRATTON, J.
{¶ 1} Respondent, Robert Logan Beeler, of Carey, Ohio, Attorney
Registration No. 0002255, was admitted to the practice of law in Ohio in 1983.
Respondent has been in the general practice of law since that time, predominantly
practicing probate, tax, and real estate law.
{¶ 2} On March 12, 2004, relator, Disciplinary Counsel, filed an
amended complaint against respondent alleging violations of the Code of
Professional Responsibility arising out of his representation of various clients.
Respondent and relator entered into joint stipulations regarding instances of fraud
involving an estate and several wills and deeds. A panel of the Board of
Commissioners on Grievances and Discipline heard the cause and, based on the
parties' stipulations, testimony, and other evidence, made findings of fact,
conclusions of law, and a recommendation.

SUPREME COURT OF OHIO
1993 Will and Warranty Deeds
{¶ 3} In 1993, respondent prepared a will for Georgeann M. Kuenzli.
This will bequeathed all of Kuenzli's property to her daughter, Jackie Predmore
("Predmore"), and to her grandchildren, John Brennan and Judilyn Ashley, if
Predmore predeceased Kuenzli. Respondent also prepared two warranty deeds
for Kuenzli in 1993. The first warranty deed purported to convey Kuenzli's
residence on Orchard Lane to Predmore. The second purported to convey a rental
property located on Warpole Street to Predmore.
{¶ 4} On February 1, 1993, Kuenzli signed the warranty deeds in the
presence of respondent, who signed as a witness and notarized the deeds. Later,
Nancy Todd, one of respondent's secretaries at the time, signed the 1993 will and
the 1993 deeds as a witness outside the presence of Kuenzli. Respondent testified
that he did this for the convenience of his client so that she would not have to
return to his law office.
{¶ 5} Respondent retained the original warranty deeds in his possession
until after Kuenzli's death. Respondent admitted that the deeds were not recorded
until much later. Respondent was under the mistaken impression that a deed can
be recorded anytime, because once recorded, it related back to the date on which
it was signed. Respondent testified that he followed this practice as a cost-saving
measure for his clients. Respondent also testified that at this time, he was
drinking heavily.
1996 Wills
{¶ 6} In 1996, respondent drafted two more wills for Kuenzli. Kuenzli
had asked respondent to ensure that her son-in-law, Gordon Predmore, was unable
to benefit from her assets. Respondent drafted two new wills for Kuenzli and
took them to her home.
{¶ 7} Respondent was present when Kuenzli signed both 1996 wills on
December 28, 1996. Respondent instructed her to call him later and let him know
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January Term, 2005
which of the two wills she wanted to be valid. Respondent testified that he
believed that Kuenzli never called.
{¶ 8} Respondent signed both 1996 wills as a witness in Kuenzli's
presence. One of the 1996 wills, the "life estate" will, also bears the signature of
Tamara Hunter, another former secretary of respondent. Hunter signed as a
purported witness, out of the presence of the testator and at respondent's
direction.
{¶ 9} The other 1996 will, the "trust will," bears the signatures of
respondent and Brandi Griffin as witnesses. Griffin is respondent's current
secretary. Out of the presence of the testator and at respondent's direction,
Griffin signed the trust will purportedly as a witness. Both 1996 wills contain
language revoking all prior wills and codicils by Kuenzli.
{¶ 10} The 1993 will and the 1996 wills remained in respondent's
possession or under his control until after Kuenzli's death.
2000 Quitclaim Deed
{¶ 11} In August 2000, respondent prepared a quitclaim deed at Kuenzli's
direction. The deed purported to convey Kuenzli's interest in a rental property on
West Walker Street in Upper Sandusky to Predmore. Kuenzli reserved a life-
estate interest for herself. Respondent witnessed Kuenzli's execution of the
quitclaim deed and signed it as a witness. Out of Kuenzli's presence and at
respondent's direction, Hunter signed the quitclaim deed purportedly as a witness,
and Griffin notarized it. Respondent retained the original in his possession until
after Kuenzli's death.
{¶ 12} On November 30, 2000, Kuenzli died at the age of 98. Following
her death, respondent met with Predmore, Ashley, and Brennan. After that
meeting, respondent began to assist in administering the estate. On January 30,
2001, respondent presented the 1993 Orchard Lane and Warpole Street warranty
deeds to the Wyandot County Recorder's Office for filing, believing that the
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SUPREME COURT OF OHIO
transfers would relate back once the deeds were recorded, thus removing them
from the corpus of the estate for purposes of probate.
{¶ 13} In February 2001, with the assent of the beneficiaries, respondent
filed the 1993 will along with an application to probate the estate of Kuenzli and
an application to relieve the estate from administration in the Wyandot County
Probate Court. Respondent also prepared and filed a statement of the assets and
liabilities of Kuenzli's estate. Respondent did not list the Orchard Lane, Warpole
Street, or Walker Street properties as assets of the estate. On February 5, 2001,
the probate court relieved the Kuenzli estate from administration.
2001 Warranty Deed
{¶ 14} Sometime before February 24, 2001, respondent realized that he
needed Predmore's husband's signature to release his dower interest. On
February 24, 2001, respondent presented Predmore and her husband with a
warranty deed for their signatures. The warranty deed reserved life-estate
interests in the Orchard Lane, Warpole Street, and Walker Street properties in
favor of Predmore, and transferred equal remainder interests in the three
properties to Ashley and Brennan. The Predmores signed the deed in
respondent's presence and respondent signed as a witness and notarized the
document. The February 24, 2001 warranty deed also bears the signature of
Tamara Hunter. Out of the Predmores' presence and at respondent's direction,
Hunter signed the warranty deed purportedly as a witness. Respondent filed this
deed with the county recorder four days later.
{¶ 15} Also on February 24, 2001, respondent presented Predmore with
an affidavit for her signature. The affidavit stated that the quitclaim deed had
been recorded. Respondent knew that the deed had not been recorded, yet he
directed Predmore to sign it, notarized it himself, and filed the deed and the
affidavit together several days later with the county recorder.
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January Term, 2005
{¶ 16} Shortly thereafter, Predmore contacted respondent and explained
that she wanted to retain the entire interest in the three properties. Predmore also
told respondent that she believed that the deeds had not been properly witnessed.
After that conversation, respondent hired attorney Mark Ellis to represent him in
matters pertaining to Predmore and the Kuenzli estate. Respondent met with
Predmore and admitted that the deeds signed by Kuenzli and Kuenzli's wills were
invalid.
{¶ 17} Later, in March 2002, Predmore's new attorney attempted to
submit the 1996 life-estate will to probate court. Shortly after that, respondent
attempted to file the 1996 trust will with the probate court. After respondent
retained his attorney, he learned that the 1993 deeds and the 2000 quitclaim deed
that he recorded after Kuenzli's death did not operate retroactively to transfer the
property out of Kuenzli's estate.
Settlement Agreement
{¶ 18} In July 2002, the Predmores, Ashley, Brennan, and Thomas Ashley
(Judilyn Ashley's spouse) ("the heirs") entered into a settlement agreement with
respondent and agreed to use the 1993 will to probate Kuenzli's estate. The heirs
further agreed to a distribution of the various properties. Respondent agreed to
waive all attorney fees related to the administration of the Kuenzli estate and
agreed to help Ashley and Brennan to refinance the Walker Street property
without charging them. Ashley and Brennan agreed to reimburse respondent
$13,588.95 for Kuenzli's funeral bill and estate taxes, and respondent agreed to
pay a total of $65,000 to Predmore (all of which has been paid) and $3,500 to
Predmore's husband (which also has been paid). Finally, the heirs agreed to
execute a release in favor of respondent from any legal malpractice claims arising
from his representation of Kuenzli and the Kuenzli estate.
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SUPREME COURT OF OHIO
{¶ 19} In addition, respondent stipulated that there were other deeds and
wills executed outside the presence of clients. Although he could not recall
names, he believed that there were only a few.
Hearing
{¶ 20} At the hearing, respondent testified that he is an alcoholic. He
sought treatment with George Sakash, a mental-health and substance-abuse
counselor, approximately 16 times in 1998 and three times in 2000. Although he
experimented with attempting to drink in moderation, respondent testified that
since December 2000, he has abstained from alcohol and committed to total
sobriety.
{¶ 21} In April 2004, two and a half weeks before his disciplinary
hearing, respondent entered the Ohio Lawyers Assistance Program ("OLAP")
support recovery system and signed a three-year contract with OLAP.

Respondent testified that he intends to honor his OLAP contract. However, the
contract requires attendance at a local weekly AA meeting, plus at least three
other AA/NA meetings per week, for a total of four required meetings per week.
As of the hearing, having signed the contract two and a half weeks before,
respondent had attended only two AA meetings total. In addition, an OLAP
counselor told respondent that he needed a session with a therapist and his spouse
regarding the disciplinary proceeding, and respondent had not completed this step
as of the time of his hearing.
{¶ 22} George Sakash, respondent's mental-health and substance-abuse
counselor, diagnosed respondent with alcohol dependence and a secondary
diagnosis of generalized anxiety disorder. Since respondent stopped drinking,
Sakash testified, he physically looks better, is more physically active, and has
grown spiritually. In addition, Sakash testified that respondent's wife had
confirmed that he was not drinking. However, Sakash was still concerned about
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January Term, 2005
respondent's level of anxiety and about the fact that he is still on anxiety
medication.
{¶ 23} At the time of the hearing, Sakash did not believe that respondent
had the support systems in place to help him handle high-stress periods.
However, Sakash believed that the OLAP program will be positive for
respondent, that respondent's alcohol dependence contributed to his disciplinary
problems, and that he can successfully practice law.
Disciplinary Counsel's Recommendation for Sanction
{¶ 24} At the conclusion of the hearing, relator recommended that
respondent be suspended from the practice of law for two years with six months
of the suspension stayed. Respondent requested that if a suspension is imposed, it
be stayed in its entirety. The panel recommended a two-year suspension with six
months stayed on conditions. The board recommended that respondent be
suspended for two years with 21 months stayed upon the terms and conditions set
forth in the panel's report. Relator filed objections, arguing that the three-month
actual suspension recommended by the board is too lenient.
{¶ 25} Because the parties stipulated to the disciplinary violations, the
sole issue before this court today is the sanction. In seeking to bring uniformity to
the process of sanctioning attorneys, this court turned to the four-step
methodology of the American Bar Association Standards for Imposing Lawyer
Sanctions in Disciplinary Counsel v. Brown (1999), 87 Ohio St.3d 316, 720
N.E.2d 525. "First, the court is to determine which ethical duties were violated by
the attorney. Second, the court examines the attorney's mental state at the time of
the violations. Third, the court assesses the extent of the actual or potential injury
caused by the lawyer's misconduct. Equipped with this information, the court
makes an initial determination as to the appropriate sanction. Finally, in the
fourth step, the court examines any aggravating or mitigating circumstances and
arrives at a final determination." (Emphasis sic.) Id. at 320, 720 N.E.2d 525.
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SUPREME COURT OF OHIO
Ethical Duties Violated
{¶ 26} The parties stipulated and the board determined that respondent's
conduct violated DR 1-102(A)(4) (a lawyer shall not engage in conduct involving
misrepresentation, dishonesty, fraud, or deceit), 1-102(A)(5) (a lawyer shall not
engage in conduct prejudicial to the administration of justice), 1-102(A)(6) (a
lawyer shall not engage in any conduct that adversely reflects on the lawyer's
fitness to practice law), 6-101(A)(2) (a lawyer shall not handle a legal matter
without preparation adequate in the circumstances), 6-101(A)(3) (a lawyer shall
not neglect a legal matter entrusted to him), and 7-102(A)(3) (a lawyer shall not
conceal or knowingly fail to disclose what he is required by law to reveal).
{¶ 27} Further, as stipulated by the parties and determined by the board,
respondent's conduct as set forth in Count Two (directing his staff to sign as
witnesses) violated DR 1-102(A)(4), 1-102(A)(5), and 1-102(A)(6).
Respondent's Mental State
{¶ 28} R.C. 2107.03 requires at least two witnesses for the proper
execution of a will. The witnesses must see the testator sign or hear the testator
acknowledge the signature. Relator argues that respondent's mental state at the
time of the violations was solely one of disdain for the law. We disagree.
Respondent was drinking heavily during most of the time in question. Although
he appears to have known that he was not properly witnessing Kuenzli's will and
deeds, his failings seem to have grown out of confusion due to drinking and a
concern for the convenience of his client, rather than any contempt for the law.
While his behavior is clearly unacceptable and did indeed violate the Code of
Professional Responsibility, his mental state was affected by his substance-abuse
problems. Relator stipulated that respondent acted without a selfish or dishonest
motive.
Actual or Potential Injury
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January Term, 2005
{¶ 29} Respondent's missteps caused Kuenzli to die intestate and the
Kuenzli estate to linger in probate for many months. Further, by filing the
improperly attested wills and deeds with the probate court, respondent
misrepresented facts to that tribunal, an action which this court does not look
upon lightly. "Beyond the fact that these activities are a fraud on the court where
the documents are filed and on all those who rely on such documents, this casual
attitude toward statutory requirements breeds disrespect for the law and for the
legal profession." Lorain Cty. Bar Assn. v. Papcke (1998), 81 Ohio St.3d 91, 93-
94, 689 N.E.2d 549.
Aggravation and Mitigation
{¶ 30} Respondent has been practicing law since 1983 and has no prior
disciplinary record. Respondent and relator stipulated that the following
mitigating factors exist and should be considered in determining the appropriate
sanction:
{¶ 31} "a) Absence of a prior disciplinary record;
{¶ 32} "b) Absence of a dishonest or selfish motive;
{¶ 33} "c) Timely good faith effort to make restitution and to rectify
consequences of misconduct, including payment by Respondent from his own
personal funds in the amount of $68,500;
{¶ 34} "d) Full and free disclosure and cooperative attitude toward these
proceedings;
{¶ 35} "e) Remorse for his conduct and acknowledgement [sic] of
wrongdoing;
{¶ 36} "f) A diagnosis by OLAP's Stephanie Krznarich, a licensed
alcohol/substance abuse counselor and professional counselor, of (1) alcohol
dependence in full remission and (2) generalized anxiety disorder;
{¶ 37} "g) A diagnosis by George Sakash, a licensed chemical
dependency counselor and professional counselor * * *, of alcohol dependence
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SUPREME COURT OF OHIO
that caused Respondent's judgment to be impaired and contributed to a portion of
the misconduct set forth above;
{¶ 38} "h) Respondent treated with Sakash on 16 occasions in 1998; once
in 1999; and six times in 2000. Respondent has treated with Sakash on two
occasions in 2004. Respondent attended two AA meetings in 1998; and
{¶ 39} "i) Beginning on April 26, 2004, Respondent has agreed to
participate in OLAP pursuant to the terms of OLAP's Lawyers Support System
Recovery Contract * * * for at term of three (3) years, which includes monitoring
Respondent's performance under the terms of the Contract by Scott Mote,
Stephanie Krznarich and Roger Culbert."
{¶ 40} Thus, respondent has admitted to his substance-abuse problem and
has committed to sobriety.
Sanction
{¶ 41} Relator and respondent stipulated that any period of a stayed
suspension should be accompanied by the following terms and conditions:
{¶ 42} "A term of probation that includes the following conditions: (1)
monitoring, for a period of not less than two years, by a licensed attorney; (2)
access to regular audits of Respondent's trust and business accounts by the
monitor; and (3) client releases to allow the monitor to have full access to
Respondent's client's [sic] files."
{¶ 43} As stated above, relator and respondent did not stipulate to a
recommended sanction. The Board of Commissioners on Grievances and
Discipline adopted the findings of fact and conclusions of law of the panel, but
recommended a two-year suspension with 21 months stayed, on the same
conditions as stipulated, but with the additional condition of successful
completion of the OLAP contract.
{¶ 44} A violation of DR 1-102(A)(4) ordinarily calls for the actual
suspension of an attorney's license. See Disciplinary Counsel v. Fowerbaugh
10

January Term, 2005
(1995), 74 Ohio St.3d 187, 190, 658 N.E.2d 237. The purpose of the disciplinary
process is not to punish the offender but rather to protect the public. Disciplinary
Counsel v. O'Neill, 103 Ohio St.3d 204, 2004-Ohio-4704, 815 N.E.2d 286, at ¶
53.
{¶ 45} However, we find that a six-month actual suspension is more in
line with conduct in similar cases. In Disciplinary Counsel v. Heffter, 98 Ohio
St.3d 320, 2003-Ohio-775, 784 N.E.2d 693, we held that a six-month actual
suspension was warranted when Heffter notarized signatures of minors in a
probate matter outside their presence. In Papcke, 81 Ohio St.3d 91, 689 N.E.2d
549, we held that a six-month actual suspension was warranted when Papcke
notarized her secretary's signing of a client's name without even asking whether
the client had authorized the secretary to sign her name, told her client she had
filed her complaint for divorce when she had not, and failed for six months to
reply to relator's notice of investigation. In Disciplinary Counsel v. Bandy
(1998), 81 Ohio St.3d 291, 690 N.E.2d 1280, we imposed a six-month actual
suspension on an attorney for drafting a will for a client in which the attorney was
named as a beneficiary, signing his own name as a witness, and later attempting to
add another witness's signature to the will after the testator's death. Finally, in
Lake Cty. Bar Assn. v. Speros (1995), 73 Ohio St.3d 101, 652 N.E.2d 681, we
held that filing an affidavit in court bearing a forged signature of a notary and
containing a false statement blaming failure to timely file a brief on a clerical
error rather than his own neglect warranted six months' actual suspension.
{¶ 46} Accordingly, this court modifies the board's recommended
sanction to a 24-month suspension with 18 months stayed, for a total of six
months' actual suspension, on the following conditions: probation for a period of
two years, monitoring by a licensed attorney during the term of probation, access
to regular audits of respondent's trust and business accounts by the monitor, and
client releases to allow the monitor to have full access to respondent's client files.
11

SUPREME COURT OF OHIO
In addition, because respondent admitted several instances of improper witnessing
of documents, this court orders the respondent to review existing files to be
certain that all documents have been properly witnessed and to cooperate with the
monitor in correcting any outstanding improperly witnessed documents.
{¶ 47} If respondent violates the conditions, the stay will be lifted and
respondent will serve the entire term of the actual suspension. Costs are taxed to
respondent.
Judgment accordingly.

MOYER, C.J., RESNICK, PFEIFER, O'CONNOR, O'DONNELL and LANZINGER,
JJ., concur.
__________________

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

Kegler, Brown, Hill & Ritter, Geoffrey Stern, Christopher J. Weber, and
Rasheeda Z. Khan, for respondent.
_____________________
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