ethics

Former Judge Burge Law License Suspended

On August 13, 2018, the Supreme Court of Ohio suspended the law license of former Lorain County Common Pleas Court Judge James M. Burge.  Burge was convicted of crimes related to his failure to disclose his interest in office buildings on his financial disclosure forms while sitting on the bench and then assigning paid legal work to attorneys who rented office space from him.

Burge was suspended for one year with six (6) months stayed.  He was also given credit for three (3) months and three (3) weeks that he had served under an interim suspension issued in April 2015 for his convictions for tampering with records and falsification.

The Supreme Court of Ohio deemed the sanction given sufficient since Burge’s misconduct occurred while he was on the bench and he has resigned from the bench.  It believes Burge’s misconduct will not recur.  In Ohio, a judge must have a license to practice law in good standing to maintain his position on the bench.

While a sitting judge, Burge was charged with 12 counts of criminal conduct.  A jury convicted him of three misdemeanor falsification charges and three felony tampering charges.  A visiting judge dismissed the remainder of the charges.  One month later, the felony charges were reduced to misdemeanors.

Burge also made disparaging remarks to convicted criminals appearing before him.  He told one man he “would have paid 50 bucks to give you a beating before you went.”  To another man, he remarked:  “Now if I were to believe you were that stupid, James, I would just have Deputy Motelewski shoot you right now, because I know you’re not going to make it through life.”  In a letter written on court stationery, Burge characterized the proposed bill of a former General Assembly representative as “nothing more than the hobgoblin of a small-minded, mouth-breathing, Tea Party type whose political style and abilities uniquely qualify him to do nothing.”

In a dissenting opinion, Justice Kennedy’s dissent stated that she would have imposed a two-year suspension with one year stayed for such conduct.

Disciplinary Counsel v. Burge, 2019-Ohio-3205.

ethics

Attorney Sanctioned For Practicing During Interim Suspension

On February 23, 2018, the Supreme Court of Ohio suspended Rebecca Jo Austin of Lakewood for failing to answer a Complaint that the Cleveland Metropolitan Bar Association filed against her with the Board of Professional Conduct.  The suspension was an interim default suspension.  This is an immediate suspension from the practice of law for failing to respond to the formal complaint.  When this occurs, an attorney is not permitted to practice law.

On May 4, 2018, the Supreme Court of Ohio found Ms. Austin to be in contempt for failing to comply with its default suspension Order.  On August 22, 2018, Ms. Austin moved for leave to file an answer, which the Supreme Court of Ohio granted.  It then remanded the matter to the Board of Professional Conduct.

On remand, the Cleveland Metropolitan Bar Association amended its complaint to add practicing while under suspension.  After hearing, the Board recommended that Ms. Austin be indefinitely suspended with credit for time served.  The Supreme Court of Ohio ordered an indefinite suspension but declined to give Ms. Austin credit for time served.  An indefinite suspension is a suspension for a minimum of two (2) years.  Prior to being reinstated, however, the attorney must demonstrate the requisite character and fitness that the attorney was required to show when she originally applied for a license to practice law.

Ms. Austin was disciplined for neglecting two matters, failing to return a retainer upon being discharged, failing to appear at court hearings, for practicing law while under suspension, and for misrepresenting to clients and courts about her suspension.

Interestingly, the Cleveland Metropolitan Bar Association opposed Ms. Austin’s disbarment, indicating that it believed that Ms. Austin was likely to establish in the future her ability to be readmitted to the practice of law.

Although it seems axiomatic, the importance of responding to disciplinary investigations and prosecutions is most important. The matter will not go away.  It will just compound the ethics charges and the sanction.

ethics

Long-Time Attorney is Disbarred

Following a 52-year legal career, long-time attorney Neal Hall Magee, II, of Columbus, Ohio was disbarred today for misappropriation of $682,821.05 from the guardianship and client trust fund of client Dr. William A. Bruce.  Magee was ordered to pay $312,899.50 in restitution to various entities.  Citing Cleveland Bar Assn. v. Dixon, 2002-Ohio-2490, the Supreme Court of Ohio noted that the presumptive sanction for misappropriation of client funds is disbarment.  Referring to Cincinnati Bar Assn v. Sanz, 2011-Ohio-766, the Court stated that it permanently disbarred an attorney for misappropriating trust funds while serving as trustee and failing to respond to the beneficiaries’ repeated requests for an accounting.

In 2008, Attorney Magee prepared the Bruce Family Revocable Trust for Dr. William A. Bruce.  With no children, Dr. and Mrs. Bruce decided that their trust property would be distributed 75% to Nationwide Children’s Hospital Foundation (“NCHF”) and 25% to Goucher College.  In 2010, The Delaware County Chancery Court declared Dr. Bruce incompetent.  Magee was appointed the guardian of the estate and took over as successor trustee under the trust.  The Court ordered Magee to transfer Dr. Bruce’s property into the trust and administer the assets pursuant to the trust.  It further ordered that Magee be paid annually trustee fees amounting to 1% of the asset balance.  It also ordered that attorney fees be paid only to a specific law firm and Dr. Bruce’s Guardian ad litem.  Nevertheless, Magee paid himself $147,829.13 in trustee fees and $34,310.21 in attorney fees.

As trustee, Magee amended the trust to make his adult children successor trustees and deleted the provision for distribution of the trust assets outright to the beneficiaries upon Dr. Bruce’s death.  Instead, the amendment called for a 5% payment of the trust assets to the beneficiaries yearly, in essence providing that the trust assets would remain in the trust indefinitely.  Magee believed a power of attorney from Dr. Bruce to him permitted him to do so.  However, he never informed the Court of this amendment.

Following Dr. Bruce’s death in October 2012, the beneficiaries requested an accounting.  Magee informed NCHF that the trust held securities of $2,132,439 and a checking account with a balance of $40,095.55.  He failed to disclose that he had transferred $442,000 to his own personal accounts just days before.  NCHF requested a copy of the trustee’s report, which Magee failed to provide.  Eventually, the beneficiaries filed suit in Franklin County Probate Court to compel Magee to provide a trustee report as R.C. 5808.13(C) requires. In August 2013, NCHF and Goucher removed Magee as trustee and appointed a successor trustee.

In August 2013, Magee appeared in Wetzel County, West Virginia court and had himself appointed the executor of Dr. Bruce’s estate.  He then transferred Dr. Bruce’s interest in certain Wetzel County property into the trust.  Later he falsified documents transferring the Wetzel County property to himself as trustee.  Magee never informed the successor trustee of the existence of the Wetzel County property.

Eventually, Magee produced a cashier’s check for $424,500 to the trust for the amounts he transferred into his own private accounts.

Magee did not appear at the disciplinary hearing.  Interestingly, the Columbus Bar Association and Magee’s attorney stipulated that the appropriate sanction was permanent disbarment.  The Board found 7 aggravating factors and 1 mitigating factor (no prior discipline).  The Supreme Court of Ohio permanently disbarred Magee and ordered that he pay restitution in the amount of $312,899.50.