Cleveland Bar Ass'n v. Harris

Per Curiam. ¶ 1 We must decide in this case whether an attorney who converted money entrusted to him by an institutionalized client should be indefinitely suspended from the practice of law in Ohio. The Board of Commissioners on Grievances and Discipline of the Supreme Court recommended that sanction against respondent, Caesar M. Harris of Cleveland Heights, Ohio, Attorney Registration No. 0021529, after finding him in violation of DR 1-102(A)(4) and (6) (engaging in dishonest conduct or conduct that otherwise reflects adversely on his fitness to practice law), 2-106(A) (charging an excessive fee), 6-101(A)(3) (neglecting an entrusted legal matter), 7-101(A)(3) (prejudicing or damaging client during course of professional relationship), 9-102(B)(l), (3), and (4) (failing to promptly advise, account for, and return client’s funds), and Gov.Bar R. V(4)(G) (failing to cooperate in a disciplinary investigation). We agree that an indefinite suspension is the appropriate punishment. 139 ¶ 2 Respondent, a solo practitioner, was originally retained in 1983 by a client to protect her interests in a divorce proceeding, particularly her right to alimony payments ordered by the Cuyahoga County Domestic Relations Court. By January 1985, respondent had negotiated an agreement through which his client would receive fixed monthly alimony payments. In 1991, the client executed a special power of attorney appointing respondent as her attorney-in-fact to oversee her finances. Around the same time, the client’s mental instability and, later, her adjudicated incompetence began necessitating a series of involuntary hospitalizations. ¶ 3 During the next several years, the Cuyahoga County Support Enforcement Agency paid respondent at least $29,760.64 in alimony pursuant to the power of attorney. By November 6, 1998, however, respondent had personally exhausted all but $742.54 of this amount in what he would later describe as “petty-cash-type withdrawals.” He gave the remaining $742.54 to Theresa Lockridge, his client’s case manager at Northeast Community Health Center, in response to Lockridge’s persistent attempts to recover all of the missing alimony and to get an accounting from respondent. Lockridge had submitted a grievance concerning respondent’s conduct to relator, the Cleveland Bar Association. ¶ 4 Respondent’s client’s guardian, Nelli Johnson, also took action to recover the missing alimony. She filed a complaint for concealment of assets against respondent in the Cuyahoga County Probate Court. That court found respondent guilty based on the itemized fee statement he had specifically prepared for the Cuyahoga County Support Enforcement Division to justify, long after the fact, the alimony money he had spent. The court considered the statement, which claimed that respondent had earned over $24,000 in fees, incredibly excessive and held that, at best, respondent could have legitimately charged his client only about one third of that amount. ¶ 5 After investigating Lockridge’s grievance, relator initiated this action on August 14, 2000, by filing a complaint with the board. A panel of the board heard the cause; including the parties’ stipulations of fact, and found the facts as stated. Based on the panel’s report, the board concluded that respondent had acted dishonestly and unprofessionally in that he had charged an excessive fee, neglected his client’s interests, and failed to appropriately account for his client’s money and, thus, that he had violated the cited Disciplinary Rules. Moreover, because respondent repeatedly failed to respond to relator’s inquiries during the investigation of this misconduct, the board found him in violation of Gov.Bar R. V(4)(G). ¶ 6 We concur in the board’s findings of misconduct and its recommendation that respondent be indefinitely suspended from the practice of law. While we historically have imposed the strictest discipline — permanent disbarment — in 140 misappropriation cases, Cleveland Bar Assn. v. Belock (1998), 82 Ohio St.3d 98, 100, 694 N.E.2d 897, we have also recognized that a lesser penalty may be in order where sufficient mitigating factors exist and the board recommends it. Disciplinary Counsel v. Kurtz (1998), 82 Ohio St.3d 55, 693 N.E.2d 1080; Cleveland Bar Assn. v. Knowlton (1998), 81 Ohio St.3d 76, 689 N.E.2d 538. Here, in addition to the board’s recommendation, we have before us an honorably discharged veteran who has been a member of the bar for twenty-seven years and has never been disciplined for professional misconduct before. Respondent has been active his entire life in the Open Door Missionary Baptist Church. His pastor and several professional acquaintances, including past and present members of the judiciary, submitted letters or gave testimony to assure us that respondent was dedicated and trustworthy. The probate court thought that some of respondent’s efforts constituted legitimate professional services. ¶ 7 Respondent’s conduct toward his defenseless client is most certainly egregious. But the board recommended against permanent disbarment, and we can see some justification for leniency. We therefore order that respondent be suspended from the practice of law in Ohio for an indefinite period. Costs are taxed to respondent. Judgment accordingly. Moyer, C.J., Douglas, Resnick, F.E. Sweeney and Lundberg Stratton, JJ., concur. Pfeifer and Cqok, JJ., dissent.