Disciplinary Counsel v. Simecek, 98-717

Citation699 N.E.2d 933,83 Ohio St.3d 320
Decision Date30 September 1998
Docket NumberNo. 98-717,98-717
PartiesOFFICE OF DISCIPLINARY COUNSEL v. SIMECEK.
CourtUnited States State Supreme Court of Ohio

On February 18, 1997, relator, Office of Disciplinary Counsel, filed a complaint charging that respondent, David J. Simecek of Wadsworth, Ohio, Attorney Registration No. 0024035, withdrew money from a client's trust without authorization and failed to return it, and thereby violated DR 9-102 (failing to maintain client funds in an identifiable bank account), 1-102(A)(4) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 1-102(A)(6) (engaging in conduct adversely reflecting upon an attorney's ability to practice law). Respondent answered and the matter was heard by a panel of the Board of Commissioners on Grievances and Discipline of the Supreme Court ("board").

After receiving stipulations and hearing the testimony offered by the parties, the panel found that respondent prepared a trust agreement which was signed by Louise G. Crow on June 19, 1992. The trust agreement designated Louise G. Crow as trustee and Helen Lemermeier as successor trustee of the Crow trust. In March 1993, Diane J. Smith was named the guardian of her aunt, Louise G. Crow, and in April 1993, she applied for and received a probate court order restraining Lemermeier and respondent from making any withdrawals from the trust. Nevertheless, respondent prepared and had Lemermeier sign a "Delegation of Powers" on July 12, 1993, which delegated to respondent all the trustee's powers with respect to the trust, and then, purportedly to pay himself for unreimbursed legal fees, respondent withdrew $8,000 from the bank account of the trust on July 16, 1993 and $2,000 from the trust on July 22, 1993. Respondent, however, could present no evidence to the probate court that Crow had agreed to pay him $10,000 from the trust.

In April 1996, the second successor trustee of the Crow trust, Second National Bank of Warren, obtained a judgment against respondent for $10,000 for withdrawals from the trust without authorization. Respondent then filed personal bankruptcy and the judgment was discharged.

The panel concluded that respondent's actions in paying himself from the assets of the trust without authorization not only violated the Disciplinary Rules as charged, but also violated DR 6-101(A)(1) (handling a legal matter which he knows he is not competent to handle without associating with a lawyer who is competent to handle the matter), 6-101(A)(2) (handling a legal matter without adequate preparation), and 6-101(A)(3) (neglecting an entrusted legal matter). The panel noted that respondent testified that he intended to retire completely from the practice of law within one year. It recommended that respondent be suspended for six months with the entire suspension stayed provided he not be permitted to practice except under the guidance of a mentor. The board adopted the findings and conclusions of the panel determining that the violations of DR 6-101(A)(1), (2), and (3) were appropriate because Section 1(A) of the Rules and Regulations Governing Procedure on Complaints and Hearings before the Board of Commissioners on Grievances and Discipline of the Supreme Court provides that "[t]he panel and Board shall not be limited to the citation to the disciplinary rule(s) in finding violations based on all the evidence." The board then adopted the recommendation of the panel.

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

David J. Simecek, pro se.

PER CURIAM.

We adopt the findings of fact of the board and its conclusion that respondent violated DR 9-102, 1-102(A)(4), and 1-102(A)(6). We do not adopt, however, the conclusion of the board that respondent violated DR 6-101(A)(1), (2), and (3). The panel reached this latter conclusion after it reviewed the evidence presented to it, and the board rationalized the panel's action by reference to its own procedural regulation, Section 1(A). To the extent that this regulation authorizes the addition of misconduct charges after the record is closed, we find that it fails to pass the test of procedural due process.

The panel's and...

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13 cases
  • Disciplinary Counsel v. Reinheimer
    • United States
    • Ohio Supreme Court
    • August 6, 2020
    ...and without providing fair notice to the attorney "fails to pass the test of procedural due process." Disciplinary Counsel v. Simecek , 83 Ohio St.3d 320, 322, 699 N.E.2d 933 (1998), citing Ruffalo . Similarly, the board may not premise a rule violation on an attorney's dishonest conduct du......
  • Columbus Bar Assn. v. Farmer
    • United States
    • Ohio Supreme Court
    • November 1, 2006
    ...Cuyahoga Cty. Bar Assn. v. Judge, 96 Ohio St.3d 467, 2002-Ohio-4741, 776 N.E.2d 21, ¶ 4; see, also, Disciplinary Counsel v. Simecek (1998), 83 Ohio St.3d 320, 322, 699 N.E.2d 933, quoting In re Ruffalo (1968), 390 U.S. 544, 551, 88 S.Ct. 1222, 20 L.Ed.2d 117 (disciplinary charges "`must be ......
  • In re Engel
    • United States
    • Montana Supreme Court
    • June 17, 2008
    ...disciplinary charges where some sort of procedural due process violation had infected the proceedings. In Disciplinary Counsel v. Simecek, 83 Ohio St.3d 320, 699 N.E.2d 933, 934 (1998), the Ohio Supreme Court upheld three misconduct charges against a lawyer, but dismissed three others. The ......
  • Cincinnati Bar Ass'n v. Sigalov
    • United States
    • Ohio Supreme Court
    • August 28, 2012
    ...during the investigation or proceedings unless the complaint makes such an allegation. [Ohio St.3d 9]Disciplinary Counsel v. Simecek, 83 Ohio St.3d 320, 322, 699 N.E.2d 933 (1998), quoting In re Ruffalo, 390 U.S. at 551, 88 S.Ct. 1222, 20 L.Ed.2d 117 (disciplinary charges “ ‘must be known b......
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