Disciplinary Counsel v. Jancura

Ohio Supreme Court September 14, 2022

Disciplinary Counsel v. Jancura, 209 N.E.3d 605 (Ohio 2022)

170 Ohio St. 3d 89; 2022 Ohio 3189

Per Curiam

Opinion

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Jancura, Slip Opinion No.

2022-Ohio-3189

.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in an
     advance sheet of the Ohio Official Reports. Readers are requested to
     promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
     South Front Street, Columbus, Ohio 43215, of any typographical or other
     formal errors in the opinion, in order that corrections may be made before
     the opinion is published.



                         SLIP OPINION NO.

2022-OHIO-3189

                        DISCIPLINARY COUNSEL v. JANCURA.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
       may be cited as Disciplinary Counsel v. Jancura, Slip Opinion No.

2022-Ohio-3189

.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct—Two-
        year suspension with the second year stayed on conditions.
   (No. 2022-0367—Submitted May 24, 2022—Decided September 14, 2022.)
   ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
                                 Court, No. 2021-024.
                                   ______________
        Per Curiam.
        {¶ 1} Respondent, Diana Jancura, of Sheffield Lake, Ohio, Attorney

Registration No. 0069490,

was admitted to the practice of law in Ohio in 1998. In
a September 2021 complaint, relator, disciplinary counsel, alleged that Jancura had
committed multiple ethical violations by fraudulently misappropriating funds from
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the probate estate of a family member and engaging in a pattern of deceit and
dishonesty to conceal her theft.
{¶ 2} The parties submitted stipulations of fact, misconduct, and
aggravating and mitigating factors, but they did not agree on an appropriate
sanction. The matter proceeded to a hearing before a three-member panel of the
Board of Professional Conduct. The panel issued a report finding that Jancura had
committed the charged misconduct and recommending that she be suspended from
the practice of law for two years with one year stayed. The board adopted that
report and recommendation and specified two conditions for the stay. No
objections have been filed.
{¶ 3} For the reasons that follow, we adopt the board’s findings of
misconduct and recommended sanction.
Misconduct
{¶ 4} In 2003, Jancura created a revocable trust for her cousin, Christopher
Kovach Sr., and his wife, Angela Ceo. Two years later, Kovach died. In 2016,
Jancura revised the trust at Ceo’s behest to designate Ceo’s mother, Candice Frantz,
as a successor trustee. She also revised Ceo’s will to name Frantz as the guardian
of Ceo’s minor children, L.K. and C.K. Ceo died in October 2016, and Frantz
retained Jancura to represent her in her capacity as trustee of the Ceo trust and
guardian of Ceo’s children.
{¶ 5} In December 2018, Jancura’s maternal aunt, Patricia DiRenzo (who
was also the paternal grandmother of Ceo’s children), died. Pursuant to DiRenzo’s
will, L.K. and C.K. were the sole heirs of her estate.
{¶ 6} The Cuyahoga County Probate Court granted Jancura’s application to
administer DiRenzo’s estate. Based on the value of the estate, Jancura would have
been entitled to approximately $6,000 in fiduciary fees for administering the estate
as well as another $6,000 in attorney fees. See R.C. 2113.35; Loc.R. 71(D) of the
Court of Common Pleas of Cuyahoga County, Probate Division. However, a local

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January Term, 2022

rule provides that when the same person serves as the administrator and attorney
for the estate (or when the attorney for the estate is affiliated with the
administrator’s law firm), the attorney fees are rebuttably presumed to be one-half
of the amount allowed by the standard fee schedule. Loc.R. 71.1(H) of the Court
of Common Pleas of Cuyahoga County, Probate Division. Thus, Jancura’s total
compensation for handling the estate was limited to approximately $9,000 unless
she filed a motion for extraordinary fees with supporting documentation.
{¶ 7} In May 2019, Jancura made a distribution from the DiRenzo estate to
L.K. and C.K. and distributed $10,000 to her firm for legal fees related to her
representation of Frantz as the guardian of the children and trustee of the Ceo trust.
She later withdrew an additional $6,000 in fiduciary fees from the estate account.
{¶ 8} That October, Jancura issued a $5,200 check, payable to “cash” from
the estate account. She cashed the check and used the proceeds to purchase a
cashier’s check payable to James Kepler. She and her husband then used the
cashier’s check to purchase a 2003 BMW from Kepler. When Jancura cashed the
estate check, she was entitled to only about $3,000 in scheduled attorney fees from
the DiRenzo estate. But in November, she withdrew an additional $6,000 in
attorney fees from the estate account, bringing her total withdrawals for her own
fees to $27,200.
{¶ 9} Jancura’s husband, who was also her law partner, entered an
appearance in the DiRenzo estate case in March 2020. In April, Jancura filed a
motion seeking payment of $3,000 in scheduled attorney fees plus $3,000 in
extraordinary fees for herself and her husband. That motion did not disclose that
Jancura had already withdrawn the extraordinary fees plus $5,200 to purchase a car
for her personal use. Along with the motion for attorney fees, Jancura filed a partial
fiduciary account that included a false entry to conceal her $5,200
misappropriation. That entry stated that on October 1, 2019, Jancura paid “James
Kebler [sic]” $5,200 for work performed for the decedent prior to her death.

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Jancura has since admitted that “James Kebler” was really James Kepler—the
person who sold her the BMW—and that he had not performed any work for
DiRenzo or the estate.
{¶ 10} Upon receipt of the partial accounting from Jancura, Frantz retained
attorney James Arnold to review the estate’s record. Arnold requested an
accounting of numerous expenses listed in Jancura’s fiduciary account, including
the $5,200 payment to Kepler. In response, Jancura drafted a letter to Arnold
explaining as follows:

Written claim filed against the estate from James Kepler for
service provided to Patricia DiRenzo prior to her passing. Diana
Jancura discussed the services provided with Mr. Kepler and
validated the authenticity of them prior to payment of the claim.
Also included is a copy of the cashier’s check paid to Mr. Kepler
and a copy of the cancelled estate check used to purchase the
cashier’s check issued to Mr. Kepler.

Although Jancura knew that the content of the letter was false, she represented to
her husband that it was true and had him sign the letter as the estate’s attorney.1
{¶ 11} In response to a request from Arnold for additional information,
Jancura provided two fabricated receipts. The first receipt was for $5,200 and
stated that Kepler performed $5,000 in labor and furnished $200 in materials for
DiRenzo’s home from May to October 2018. On that receipt, Jancura handwrote,
“Paid 10/1 #165 for cashier’s check.” The other receipt was identical in all respects

1. Relator filed a separate complaint against Jancura’s husband, Scott Jancura, for misconduct
related to this case. On the board’s recommendation, we accepted the parties’ consent-to-discipline
agreement and imposed a conditionally stayed six-month suspension for Scott’s admitted
misconduct. See Disciplinary Counsel v. Jancura,

166 Ohio St.3d 1511

2022-Ohio-1687

187 N.E.3d 566

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January Term, 2022

except that it was for $2,200, the $5,000 was replaced with $2,000, and Jancura had
forged the signature “J Kepler” above the handwritten note.
{¶ 12} In August 2020, Frantz filed a motion seeking Jancura’s removal as
administrator of the estate, the denial of Jancura’s pending motion for fees, and an
order refunding fees that had previously been paid for administration of the estate.
Among other exceptions to the accounting, Frantz alleged that Jancura had
misappropriated the $5,200 she paid to Kepler and had committed fraud in an
attempt to conceal her conduct. Shortly thereafter, Jancura returned the $5,200 to
the estate account and filed the final fiduciary account, which included the entry
“Return of Kepler claim” for $5,200.
{¶ 13} In October 2020, Arnold deposed Jancura. In her testimony, Jancura
admitted that she had fabricated the receipts for services purportedly provided to
the estate by Kepler. She claimed that the $5,200 payment was part of her attorney
or fiduciary fee, though she had already collected $6,000 in fiduciary fees and the
$5,200 exceeded the $3,000 in attorney fees that she would have been entitled to
receive without filing a motion for extraordinary fees. Jancura further
acknowledged that just one month after withdrawing the $5,200, she improperly
withdrew another $6,000 in fees.
{¶ 14} The board did not find Jancura’s testimony about the forged receipts
to be particularly credible. Its report states that at her disciplinary hearing, she
“seemed to land on the theory” that she had created the $2,200 receipt as a mistake
and later “correct[ed]” it with the $5,200 receipt. However, the board found that it
could not be a coincidence that Jancura had mistakenly drafted one of the fraudulent
receipts for $2,200—the same amount that her husband had falsely reported to the
Bureau of Motor Vehicles as the sale price for the BMW that they had purchased
from Kepler.
{¶ 15} Although Jancura ultimately withdrew as the administrator of the
DiRenzo estate and withdrew her motion for attorney fees, her fraud and poor

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accounting practices forced Frantz to take additional legal action to oppose her final
account. Jancura and Frantz eventually settled the case. Jancura repaid the $5,200
that she had misappropriated from the estate, the $12,000 in fees related to the
administration of the estate, and the $10,000 in fees that she had withdrawn for
legal work she had performed relative to the guardianship and trust.
{¶ 16} Jancura stipulated and the board found that her conduct violated
Prof.Cond.R. 3.3(a)(1) (prohibiting a lawyer from knowingly making a false
statement of fact or law to a tribunal), 3.4(b) (prohibiting a lawyer from falsifying
evidence), 4.1(a) (prohibiting a lawyer from knowingly making a false statement
of material fact or law to a third person), and 8.4(a) (prohibiting a lawyer from
knowingly inducing another lawyer to violate or attempt to violate the Ohio Rules
of Professional Conduct),2 8.4(c) (prohibiting a lawyer from engaging in conduct
involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (prohibiting a
lawyer from engaging in conduct that is prejudicial to the administration of justice).
We adopt these findings of misconduct.
Sanction
{¶ 17} When imposing sanctions for attorney misconduct, we consider all
relevant factors, including the ethical duties that the lawyer violated, the
aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions
imposed in similar cases.
{¶ 18} The parties stipulated and the board found that four aggravating
factors are present here: Jancura acted with a dishonest or selfish motive, engaged
in a pattern of misconduct, committed multiple offenses, and harmed vulnerable
victims. See Gov.Bar R. V(13)(B)(2), (3), (4), and (8).

2. Relator’s complaint, the parties’ stipulations, and the board’s report mistakenly cited
Prof.Cond.R. 8.1(a) but included in that citation the summary of the conduct prohibited by
Prof.Cond.R. 8.4(a).

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January Term, 2022

{¶ 19} As for mitigating factors, the parties stipulated and the board found
that Jancura has no prior discipline, had made a timely, good-faith effort to make
restitution (albeit after Frantz filed a motion to remove her as the administrator of
the DiRenzo estate), and had made full disclosure to the board and demonstrated a
cooperative attitude toward the disciplinary proceedings. See Gov.Bar R.
V(13)(C)(1), (3), and (4). The parties also stipulated that Jancura had submitted
evidence of her good character or reputation in the form of 14 character letters
written by colleagues, clients, and friends. See Gov.Bar R. V(13)(C)(5). The board
afforded those letters some mitigating effect, although it was troubled by the
authors’ references to Jancura’s “one instance” of misconduct, her “poor judgment
call,” her “mistakes,” and her “questionable decisions”—none of which accurately
represented the full extent of Jancura’s misconduct.
{¶ 20} At her disciplinary hearing, Jancura testified that she suffers from
symptoms of depression and had begun meeting with a therapist; however, it does
not appear that Jancura has been diagnosed with any mental disorder. Although
Jancura entered into a two-year contract with the Ohio Lawyers Assistance Program
(“OLAP”), her counselor reported that Jancura “did not want therapeutic treatment
for a mental health diagnosis but desired to attend therapy to better herself and
improve her perspective.”
{¶ 21} The board’s report states that Jancura acknowledged the
wrongfulness of and expressed remorse for her misconduct, but it also notes that
she did not appear to accept full responsibility for her actions. Instead, Jancura
suggested that several factors had contributed to her misconduct, including her poor
relationship with Frantz (the children’s guardian), the alleged hostility of Frantz’s
counsel, COVID-19 lockdowns, unresolved childhood trauma, and “demonic
thoughts.” The board rejected those claims. For example, the board’s report states
that Jancura’s difficult relationship with Frantz did not excuse her decisions to
falsify a court entry, forge two receipts, and lie to her law partner/husband.

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Moreover, it found that her effort to justify her misconduct on that ground did not
bode well for any future clients whom, like Frantz, Jancura finds to be difficult,
dismissive, or ungrateful. Similarly, the board rejected Jancura’s claims that
Frantz’s counsel was unreasonably hostile, noting that counsel was right to question
Jancura’s accounting because she had already engaged in wrongdoing. The board
likewise rejected Jancura’s claims that “[n]one of this would have happened but for
the COVID” because the lockdown occurred five months after she misappropriated
estate funds and just one month before she submitted her fraudulent partial
fiduciary account. Furthermore, the board’s report notes that Jancura testified that
it was the litigation following her misconduct that had triggered memories of a
childhood trauma rather than the trauma triggering the misconduct.
{¶ 22} In determining the appropriate sanction for Jancura’s misconduct,
the board considered decisions imposing sanctions ranging from disbarment to fully
stayed term suspensions for misconduct involving varying degrees of
misappropriation. See, e.g., Disciplinary Counsel v. Hunter,

106 Ohio St.3d 418

2005-Ohio-5411

835 N.E.2d 707

 (disbarring attorney who, over three years,
embezzled nearly $300,000 from the estates of two people for whom she had served
as a court-appointed guardian); Disciplinary Counsel v. Gorby,

142 Ohio St.3d 35

2015-Ohio-476

27 N.E.3d 510

 (imposing a conditionally stayed one-year
suspension on an attorney who misappropriated funds from family members who
were also her clients and with whom she had a very contentious relationship).
       {¶ 23} The board found that the facts of this case most closely align with
those of several cases in which we imposed partially stayed term suspensions for
the misappropriation of client funds coupled with attempts to conceal that
misconduct. For example, in Disciplinary Counsel v. Gildee,

134 Ohio St.3d 374

2012-Ohio-5641

982 N.E.2d 704

, the attorney misappropriated client funds,
falsified a document in an attempt to justify her misappropriation, and made a false
representation to the relator in the subsequent disciplinary action regarding the




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                               January Term, 2022




status of a payment she had promised to make to the client. In contrast to Jancura,
Gildee had not made restitution at the time of her disciplinary hearing, due to her
dire financial condition. We found that Gildee’s multiple acts of dishonesty
required an actual suspension from the practice of law and that the mitigating
evidence—including the absence of a disciplinary record, full and free disclosure
to the board, positive character evidence, and genuine remorse—weighed in favor
of a two-year suspension with one year conditionally stayed. Id. at ¶ 17-18.
       {¶ 24} In Disciplinary Counsel v. Gold,

154 Ohio St.3d 106

, 2018-Ohio-
3238,

111 N.E.3d 1158

, we imposed the same sanction on an attorney who had
misappropriated client funds in violation of a court order requiring him to hold
those funds in trust and then had engaged in a pattern of dishonesty,
misrepresentation, and frivolous court filings to conceal that misappropriation.
Although Gold presented only some of the aggravating and mitigating factors that
are present in this case, he also established the existence of several mitigating
disorders.
       {¶ 25} On the authority of Gildee and Gold, the board recommends that we
suspend Jancura from the practice of law for two years with one year stayed on the
conditions that she engage in no further misconduct and pay the costs of these
proceedings. The board further recommends that as an additional condition of
reinstatement, Jancura be required to submit proof of compliance with her
September 21, 2021 OLAP contract and any recommended extension thereof.
       {¶ 26} Having independently reviewed the relevant factors, we agree that
the sanction recommended by the board is appropriate.
                                   Conclusion
       {¶ 27} Accordingly, Diana Jancura is suspended from the practice of law in
Ohio for two years with the second year stayed on the conditions that she commit
no further misconduct and pay the costs of these proceedings. In addition to the
requirements for reinstatement set forth in Gov.Bar R. V(24), Jancura shall be




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required to submit proof of compliance with her September 21, 2021 OLAP
contract and any extension recommended by OLAP. If Jancura fails to comply with
any condition of the stay, the stay will be lifted and she will serve the full two-year
suspension. Costs are taxed to Jancura.
                                                              Judgment accordingly.
       O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, DONNELLY, STEWART,
and BRUNNER, JJ., concur.
                                _________________
       Joseph M. Caligiuri, Disciplinary Counsel, and Matthew A. Kanai and
Karen H. Osmond, Assistant Disciplinary Counsel, for relator.
       Diana Jancura, pro se.
                                _________________




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Reference

Cited By: 4 cases
Status: Published
Syllabus: Attorneys—Misconduct—Violations of the Rules of Professional Conduct—Two-year suspension with the second year stayed on conditions.