[This opinion has been published in Ohio Official Reports at 

.]




                 RICHLAND COUNTY BAR ASSOCIATION v. GIBSON.
            [Cite as Richland Cty. Bar Assn. v. Gibson, 

.]
Attorneys at law—Misconduct—Two-year suspension with second year of
        suspension suspended on condition of making full restitution—Conduct
        prejudicial to the administration of justice—Neglect of an entrusted legal
        matter—Failing to decline employment when professional judgment on
        behalf of client is likely to be adversely affected—Failure to cooperate in
        investigation of misconduct.
       (No. 95-821—Submitted July 26, 1995—Decided October 11, 1995.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                     Discipline of the Supreme Court, No. 94-14.
                                  __________________
        {¶ 1} In a complaint filed February 22, 1994, relator, Richland County Bar
Association, charged respondent, Harold E. Gibson of Mansfield, Ohio, Attorney

 with one count of misconduct involving violations of,
inter alia, DR 1-102(A)(5) (conduct prejudicial to the administration of justice), 6-
101(A)(3) (neglect of an entrusted legal matter), 5-105(A) (failing to decline
employment where professional judgment on behalf of client is likely to be
adversely affected), and Gov.Bar R. V(4)(G) (failure to cooperate in investigation
of misconduct). A panel of the Board of Commissioners on Grievances and
Discipline of the Supreme Court (“board”) heard the matter on November 4, 1994.
        {¶ 2} Relator’s charges arose from respondent’s conduct during the
administration of the estate of his father-in law, Andronic Orosan, who died in
February 1987.
        {¶ 3} From 1983 until his death, Andronic and his wife, Anna, resided with
respondent and his wife, Mary Ann. None of Mary Ann’s three siblings contributed
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to the support of their parents. According to respondent and Mary Ann, Andronic
and they had orally agreed at some point that respondent would manage the Orosan
family business, “Nick’s Place”; that he would pay Andronic $250 to 300 per month
from which Andronic would pay certain expenses of the establishment; and that
respondent and his wife would keep any profits the business generated. Andronic
retained the liquor permit and title to this real estate under the agreement, and
respondent apparently also provided some legal services to Andronic.
        {¶ 4} Andronic’s will left his entire estate to Anna and named her as the
executor. Anna declined to accept this trust, and her health ultimately required the
appointment of a guardian to act on her behalf. Mary Ann and one of her brothers
accepted their appointment as co-fiduciaries in accordance with other provisions in
the will. Respondent agreed to represent Mary Ann and her brother in their
fiduciary capacities.
        {¶ 5} Respondent continued to operate Nick’s Place after Andronic’s death,
just as he had before, purportedly by agreement with the Orosan siblings.
Respondent did not advise the probate court of this continued operation, nor did he
apply for the probate court’s approval. Moreover, when respondent filed the
inventory for Andronic’s estate, he did not report to the probate court the value of
the liquor permit or all the other assets of Nick’s Place—he instead identified only
a partial interest in the real estate. Respondent also did not report in his accountings
for the estate the income or losses attributable to Nick’s Place, and he, apparently,
did not maintain the funds generated by this business in a separate bank account.
        {¶ 6} Respondent confessed to the panel that he had not considered Nick’s
Place an estate asset and, consequently, had not properly accounted for it during his
representation of Andronic’s estate. He explained that his judgment had been
clouded by sentiment for the Orosan family’s Depression-era tavern. He conceded
his mistake, and implied that he first realized it in July 1993, when the probate court
announced that his oral agreement with Andronic was unenforceable.



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                                    January Term, 1995




        {¶ 7} In April 1993, Mary Ann resigned as executor of Andronic’s estate in
response to a request for her removal by one of her brothers. Since Mary Ann’s
other brother and co-fiduciary had resigned earlier, the probate court appointed an
administrator with will attached, who asserted that Nick’s Place was an estate asset.
The probate court agreed and directed respondent to respond accordingly.
        {¶ 8} In September 1993, respondent filed amended accountings for the
years when Mary Ann was a fiduciary, and all except one of these accountings
reflected that Nick’s Place had annually lost money. On the administrator’s motion,
the probate court disapproved the amended accountings on the ground that they
lacked appropriate documentary verification and consistently showed unjustified
deficit balances for Andronic’s estate. In February 1994, the administrator charged
respondent and his wife with concealing or embezzling estate assets and sought
damages resulting from the mismanagement of Nick’s Place, which included
certain unpaid taxes. On June 10, 1994, the probate court approved a settlement in
the administrator’s action, and entered judgment ordering respondent and Mary
Ann to pay Andronic’s estate at least $161,239.22: $115,684.62 for outstanding
taxes, penalties, and interest owed by Andronic’s estate and attributable to the
losses incurred by Nick’s Place; and $45,554.60 for attorney fees and court costs
incurred by the administrator in resolving the problems caused by respondent’s
continued operation of that business.1 Respondent has made little, if any, effort to
satisfy this judgment.
        {¶ 9} From this evidence, the panel determined that respondent violated DR
1-102(A)(5) because he failed over a six-year period to completely disclose to the
probate court his continued operation of a decedent’s business. The panel found a
violation of DR 6-101(A)(3) because respondent’s operation of that business

1. The settlement contained provisions for a credit toward the amount of damages attributable to
tax liability in the event tax authorities agreed to a compromise of the designated amount.




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resulted in neglect. The panel found respondent in violation of DR 5-105(A)
because he believed he had a proprietary interest in an estate asset and yet
represented the fiduciaries of the estate without any meaningful disclosure or
waiver of their conflicting interests. Finally, the panel found that respondent
violated Gov.Bar R. V(4)(G) because he admitted having made no response to
relator’s efforts to investigate the charges of misconduct against him.
       {¶ 10} In recommending a sanction for this misconduct, the panel
considered respondent’s long and distinguished career as a practitioner, as well as
the testimony and correspondence of his many professional and social
acquaintances, all of whom described his competence and integrity. The panel also
considered that respondent had received a public reprimand in 1978, Ohio State
Bar Assn. v. Gibson, No. DD 78-3, but decided this discipline did not justify
enhancement pursuant to Gov.Bar R. V(6)(C).
       {¶ 11} The panel recommended that respondent be suspended from the
practice of law for two years, but that imposition of this sanction be stayed on the
condition that he make restitution consistent with the June 10, 1994 settlement order
of the probate court within three years of the final order issued in this case. The
board adopted the panel’s findings of misconduct and its recommendation.
                              __________________
       William T. McIntyre, for relator.
       Mark H. Aultman, for respondent.
                              __________________
       Per Curiam.
       {¶ 12} Upon review of the record, we concur in the board’s findings of
misconduct. However, we find respondent’s misconduct in the administration of
this decedent’s estate deserving of a more severe sanction than the board
recommended. Moreover, we agree with relator that three years is too long for this
estate to wait for restitution from respondent, who apparently possesses assets from



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which he could satisfy the judgment against him.         Therefore, we order that
respondent be suspended from the practice of law in Ohio for a period of two years;
however, we suspend imposition of the second year of this suspension period on
the condition respondent make full restitution, including interest assessed at the
legal rate, in accordance with the probate court’s June 10, 1994 settlement order by
the end of the first year. Costs taxed to respondent.
                                                            Judgment accordingly.
       MOYER, C.J., WRIGHT, F.E. SWEENEY, PFEIFER and COOK, JJ., concur.
       DOUGLAS and RESNICK, JJ., dissent.
                               __________________
       DOUGLAS, J., dissenting.
       {¶ 13} I respectfully dissent. I would order the sanction recommended by
this court’s Board of Commissioners on Grievances and Discipline. Because the
majority does not do so, I dissent.
       RESNICK, J., concurs in the foregoing dissenting opinion.
                               __________________




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