[Cite as Disciplinary Counsel v. Smith, 101 Ohio St.3d 27, 2003-Ohio-6623.]




                      OFFICE OF DISCIPLINARY COUNSEL v. SMITH.
   [Cite as Disciplinary Counsel v. Smith, 101 Ohio St.3d 27, 2003-Ohio-6623.]
Attorneys at law — Misconduct — Indefinite suspension — Apparent conversion
        and neglect in administering the estate of an adjudicated incompetent —
        Failing to cooperate in disciplinary investigation.
  (No. 2003-1117 — Submitted August 26, 2003 — Decided December 31, 2003.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline
                             of the Supreme Court, No. 02-93.
                                    __________________
        Per Curiam.
        {¶1}     Respondent,       Stanford     Smith     of   Cleveland,     Ohio,   Attorney
Registration No. 0030754, was admitted to the practice of law in 1958.                     On
December 9, 2002, relator, Disciplinary Counsel, charged respondent in a two-count
complaint with violations of the Code of Professional Responsibility. Respondent
was served with the complaint but did not answer, and relator moved for default
pursuant to Gov.Bar R. V(6)(F). A master commissioner appointed by the Board of
Commissioners on Grievances and Discipline heard the cause and made findings of
fact, conclusions of law, and a recommendation.
        {¶2}     As to the first count, the master commissioner found that respondent
was appointed in March 1987 as guardian of an adjudicated incompetent and his
estate. In November 2000, after the death of the ward, the Cuyahoga County Court of
Common Pleas, Probate Division, removed respondent from his fiduciary
responsibility for the estate because he had failed to file a required account. The
probate court appointed a successor fiduciary.
        {¶3}     The successor fiduciary filed a motion for surcharge upon discovering
that documents filed in the estate did not completely account for $25,231 of the
assets. The successor determined from bank records that approximately $15,130 of
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this amount appeared to have been spent appropriately for the ward’s benefit. A
balance of $10,100.68, however, was not explained.
       {¶4}    The probate court heard the surcharge motion in December 2001, but
respondent, who had notice of the proceeding, did not appear. In January 2002, the
court found respondent liable to the successor fiduciary in the amount of $10,000 in
unaccounted-for estate assets and for $2,531.35 in fees and expenses for the
successor’s services. The court specifically found that the successor’s services had
been necessary because of respondent’s willful and wanton neglect and his violation
of state law. The court ordered respondent to remit this payment within 14 days of
the judgment; however, respondent did not comply.
       {¶5}    The master commissioner found that by his apparent conversion and
neglect in administering the estate, respondent had violated DR 1-102(A)(4) (conduct
involving fraud, deceit, dishonesty, or misrepresentation), 1-102(A)(6) (conduct
adversely reflecting on an attorney’s fitness to practice law), 6-101(A)(3) (neglect of
an entrusted legal matter), 7-101(A)(2) (failure to carry out a contract of professional
employment), and 9-102(B)(3) (failure to appropriately account for a client’s funds or
other property).
       {¶6}    As to the second count, the master commissioner found respondent in
violation of Gov.Bar R. V(4)(G) (failure to cooperate in an investigation of
misconduct) because respondent received but refused to respond to relator’s repeated
requests for information about the administration of his former client’s estate. He
also ignored subpoenas for his appearance at two depositions.
       {¶7}    In recommending a sanction for this misconduct, the master
commissioner reviewed the mitigating and aggravating considerations listed in
Section 10 of the Rules and Regulations Governing Procedure on Complaints and
Hearings Before the Board of Commissioners on Grievances and Discipline. As to
mitigation, the master commissioner observed that respondent had no history of
professional misconduct. However, as aggravating features, the master commissioner
noted respondent’s lack of cooperation, the particular vulnerability of his former




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client, and his failure to make any restitution. The master commissioner also noted
that respondent had not registered as an attorney for the current biennium in
accordance with Gov.Bar R. VI.
        {¶8}    The master commissioner rejected the sanction suggested by relator—
permanent disbarment—because of respondent’s long and formerly unblemished
legal career. The master commissioner instead recommended that respondent be
suspended indefinitely from the practice of law. The board adopted the master
commissioner’s findings of misconduct and recommendation.
        {¶9}    We concur in the findings of misconduct and recommendation of the
board. Absent any mitigating factors, disbarment is the appropriate sanction for an
attorney’s misappropriation of client funds. Cleveland Bar Assn. v. Belock (1998), 82
Ohio St.3d 98, 100, 694 N.E.2d 897. Here, however, we accord weight to the board’s
recommendation of the lesser sanction of indefinite suspension based on the
mitigating evidence that respondent has been licensed to practice for approximately
45 years without any previous ethical infraction.         See Columbus Bar Assn. v.
Hamilton (2000), 88 Ohio St.3d 330, 725 N.E.2d 1116 (sufficient mitigating factors
warranted the indefinite suspension, rather than disbarment, of an attorney who
admitted having converted estate funds).
        {¶10} Accordingly, respondent is hereby suspended indefinitely from the
practice of law in Ohio. Costs are taxed to respondent.
                                                                Judgment accordingly.
        MOYER, C.J., RESNICK, F.E. SWEENEY, PFEIFER, LUNDBERG STRATTON,
O’CONNOR and O’DONNELL, JJ., concur.
                                __________________
        Jonathan E. Coughlan, Disciplinary Counsel, and Kevin L. Williams,
Assistant Disciplinary Counsel, for relator.
                                __________________




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