Disciplinary Counsel v. Tomlan

118 Ohio St. 3d 1 (2008) · Supreme Court of Ohio · April 3, 2008

Summary

The Ohio Supreme Court indefinitely suspended attorney John Richard Tomlan for misconduct involving an elderly client’s assets and estate. The court found that Tomlan transferred assets into joint survivorship accounts without informed consent, concealed estate proceeds, delayed administering the estate, and engaged in an improper ex parte communication with a probate judge. The court weighed mitigating factors, including Tomlan’s lack of prior discipline, against aggravating circumstances involving self-dealing and harm to the estate.

Holdings

  1. A lawyer violates DR 1-102(A)(6) and DR 5-101(A)(1) by facilitating transfers of an elderly client's assets into joint and survivorship accounts with the lawyer without the client's valid informed consent, including disclosure of risks such as tax consequences and depletion of testamentary bequests.
  2. A lawyer violates DR 1-102(A)(4) and DR 7-109(A) by failing to disclose estate assets and proceeds that the lawyer knows he has a legal duty to reveal or produce.
  3. A lawyer violates DR 1-102(A)(5) and DR 1-102(A)(6) by unduly delaying the performance of executor duties, including admitting the will to probate, paying creditors, managing estate assets, and responding to the administrator's requests for information.
  4. A lawyer violates DR 7-110(B) by communicating with a judge about the merits of a pending adversarial proceeding without notice to opposing counsel or legal justification.
  5. Indefinite suspension is warranted for calculated self-dealing involving a vulnerable client, concealment of estate assets, prolonged interference with estate administration, and prohibited ex parte communication, notwithstanding the absence of a prior disciplinary record and other mitigating factors.

Questions Presented

  1. Whether Tomlan violated the Disciplinary Rules by transferring an elderly client's assets into joint and survivorship accounts for his own benefit without informed consent.
  2. Whether Tomlan violated the Disciplinary Rules by concealing estate assets and proceeds that he was obligated to disclose.
  3. Whether Tomlan violated the Disciplinary Rules by unduly delaying his duties as executor.
  4. Whether Tomlan violated the Disciplinary Rules by communicating ex parte with the probate judge about the merits of a pending proceeding.
  5. What sanction was appropriate for the established misconduct.

Disposition

other

Cases Cited (10)

  • Stark Cty. Bar Assn. v. Ake, 111 Ohio St. 3d 266, 2006-Ohio-5704, 855 N.E.2d 1206, ¶ 44(followed)
  • Krischbaum v. Dillon, 58 Ohio St. 3d 58, 567 N.E.2d 1291 (1991)(followed)
  • West v. Henry, 173 Ohio St. 498, 184 N.E.2d 200 (1962)(followed)
  • Disciplinary Counsel v. Galinas, 76 Ohio St. 3d 87, 666 N.E.2d 1083 (1996)(followed)
  • Disciplinary Counsel v. Kelleher, 102 Ohio St. 3d 105, 2004-Ohio-1802, 807 N.E.2d 310(followed)
  • Mahoning Cty. Bar Assn. v. Theofilos, 36 Ohio St. 3d 43, 521 N.E.2d 797 (1988)(followed)
  • Disciplinary Counsel v. Slavens, 63 Ohio St. 3d 162, 586 N.E.2d 92 (1992)(followed)
  • Toledo Bar Assn. v. Cook, 97 Ohio St. 3d 225, 2002-Ohio-5787, 778 N.E.2d 40(distinguished)
  • Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio St. 3d 424, 2002-Ohio-4743, 775 N.E.2d 818(distinguished)
  • Cincinnati Bar Assn. v. Clark, 71 Ohio St. 3d 145, 642 N.E.2d 611 (1994)(distinguished)

Cited In (0)

No citing cases on record yet.

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