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Office of Disciplinary Counsel v. Clifton

Supreme Court of Ohio

October 1, 1997

Office of Disciplinary Counsel

79 Ohio St.3d 496

Submitted May 7, 1997.

On Certified Report by the Board of Commissioners on Grievances and Discipline of the Supreme Court, No. 94-58.

J. Warren Bettis, Interim Disciplinary Counsel, Lori J. Brown and Cynthia L. Roehl, Assistant Disciplinary Counsel, for relator.

Gary R. Lewis, for respondent.

On October 21, 1994, relator, Office of Disciplinary Counsel, filed an amended complaint charging in two counts that respondent, William Deems Clifton II of Cincinnati, Ohio, Attorney Registration No. 0038076, violated eight Disciplinary Rules while acting as the guardian of an estate, and in another count, that respondent violated an additional Disciplinary Rule and a Rule for the Government of the Bar by failing to pay attorney registration fees on a timely basis during the 1989/1991, 1991/1993 and 1993/1995 biennia. After respondent filed an answer, the matter was heard by a panel of the Board of Commissioners on Grievances and Discipline of the Supreme Court ("board").

The panel found that on February 3, 1984, the Hamilton County Probate Court appointed respondent guardian of the person and estate of Ollie R. Cawein, an incompetent, after the death of her brother, who was the prior guardian. At the time of respondent's appointment, Cawein's assets totaled over $500, 000, mostly consisting of stocks, bonds and cash, in addition to two residences in Cincinnati and two lots in Florida. Between February 1984 and December 1992, when respondent resigned as guardian, respondent placed estate funds totaling $296, 236.72, either into his private business or personal accounts and used them for business and personal expenses.

Between April 1986 and September 1990, respondent not only retained for his own use dividends and interest belonging to the estate, but also borrowed $172, 407 from Cawein's estate without authority. He retained proceeds of sales of the estate's stocks, proceeds from the sales of stocks received in stock splits, and proceeds from distributions of the estates of Cawein's relatives and executed six personal five-year promissory notes for the borrowed amounts. He did not timely pay these notes because he determined at the time the notes were due that Cawein's estate did not need the money and that it was not convenient for him to make the payments. Respondent transferred the funds represented by the notes to Jamaica Trading Shares, Inc., a Delaware corporation that he formed and owned. The funds in Jamaica Trading were used to meet respondent's professional and personal obligations, such as the purchase of an automobile for himself. Respondent did not report the receipt of stock from stock splits in his annual guardianship reports. Not only did the estate fail to receive the funds represented by the notes, but it also failed to realize interest had the funds been received and invested.

Cawein was an incompetent as a result of a stroke incurred in 1976. She resided in a nursing home and had little prospect of occupying either of the two residences she owned in Cincinnati. Yet respondent failed to sell either property, and during his guardianship realized only $13, 205.62 in rental income from one of the properties. During respondent's tenure as guardian, operating expenses of these two properties exceeded the rental income by $15, 287.99. In addition, while he was guardian respondent spent an additional $64, 442.34 in repairs on these properties. Respondent did not maintain insurance on either property, and because he did not file tax returns for the estate for several years, tax liens were placed on the properties. Eventually, the liens were removed after respondent paid the taxes and penalties.

Respondent also neglected to maintain the two real estate lots in Florida appraised at $11, 000 and owned by the estate. His failure to pay property taxes on the Florida real estate resulted in the lots' being sold at a sheriff's sale.

Because respondent failed to account for the use of Social Security income from November 1989 through March 1993, the Department of Health and Human Services suspended Cawein's Social Security payments totaling $27, 429. Although the suspended amounts were ultimately recovered, the estate lost $5, 800 in interest that could have been realized had the funds been received and invested.

Without court approval, respondent paid himself an aggregate of $66, 985 in attorney fees and guardianship fees during the period he served as both attorney and guardian. However, respondent did not retain records of time expended or work performed to support the fees charged.

The panel also found that during his guardianship respondent visited Cawein infrequently. His testimony indicated that during the six years of his guardianship, he purchased only $800-$1, 200 in clothes for her, and the employees of the nursing home testified that Cawein was dressed with clothes left at the nursing home when other occupants departed or died. Respondent also claimed that he did repair Cawein's broken television at one time, and that if it was subsequently not working, he did not know about it. Respondent would not authorize speech therapy for Cawein, nor would he authorize the purchase for Cawein of a recommended "lap board" and a "communication board" (an item with icons to which she could point to indicate her needs). The estate, however, maintained a subscription to The Wall Street Journal.

On May 31, 1991, the nursing home contacted the Hamilton County Probate Court indicating serious concerns about the Cawein guardianship. The nursing home cited not only respondent's failure to visit his ward and his disregard for her everyday needs, but also the fact that the estate owed the nursing home over $18, 000 for care and maintenance of ...

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