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Toledo Bar Association v. Dzienny7/31/2002
Submitted May 7, 2002
. We must decide in this case whether an attorney who prepared inter vivos trusts for a client and named himself as a beneficiary should be suspended indefinitely from the practice of law in Ohio or receive a lesser penalty. The Board of Commissioners on Grievances and Discipline of the Supreme Court ("board") recommended that respondent, Michael A. Dzienny of Toledo, Ohio, Attorney Registration No. 0037618, receive an indefinite suspension for having violated DR 1-102(A)(6) (engaging in conduct that adversely reflects on an attorney's fitness to practice law), 5-101(A)(1) (accepting professional employment if the attorney's judgment may be affected) and (2) (preparing a client's inter vivos trust in which the attorney is named beneficiary), 5-105(A) (accepting professional employment if attorney's independent judgment on client's behalf could be compromised), and 6-102(A) (attempting to evade liability for malpractice). Upon review, however, we are convinced that an eighteen-month suspension, with one year stayed on the condition that respondent commit no further misconduct, is a more appropriate penalty.
. In 1997 and 1998, Sally Wiant consulted respondent, a friend of hers, enlisting his professional assistance in planning her estate. During this time, Wiant also applied to a carrier for life insurance on her mother, and through the services of another friend an insurance agent Donald J. Amon, the carrier approved her application for $4 million in coverage.
Wiant bought a policy with a $750,000 face value, but Amon encouraged her to use the remaining amount of potential coverage as an investment opportunity. Wiant was interested but did not want the responsibility of shouldering all of the premium that the purchase would require. Amon then approached respondent, with whom he was also friends, and suggested that respondent buy as an investment the insurance for which Wiant's application had been approved.
. Respondent agreed to the deal, and he and Amon invited another of their friends, William D. Free, to participate. Respondent then prepared three inter vivos, revocable trusts with Wiant being the trustor for each. For the first trust, "Sally's Trust," respondent designated Wiant as the trustee and her niece and nephew as the beneficiaries. For the second trust, the "WFD Trust," respondent designated Wiant and Free trustees and Wiant, Free, and himself the beneficiaries. For the third trust, the "SAW Trust," respondent designated Free trustee and Free and himself the beneficiaries.
. Respondent did not advise Wiant or Free, for whom he had also provided professional services, to consult independent legal counsel before they agreed to these trust instruments. And in an attempt to limit his professional liability in having prepared the WFD and SAW trusts, respondent included in each trust agreement an acknowledgement that Wiant had been advised of conflicting interests in the arrangement, that she nevertheless intended respondent to be beneficiary, and that she would hold respondent harmless as to any future claims arising out of the arrangement.
. On December 18, 1997, the insurance carrier issued five life insurance policies with face values totaling $3.25 million that named Sally's trust as owner and beneficiary. In March 1998, Wiant, as trustee of that trust, changed the ownership and beneficiaries of four of the five insurance policies. The ownership and beneficiaries of one policy with a $750,000 face value she left unaltered. She amended a second policy with a face value of $500,000 by naming the WFD trust the owner and beneficiary, such that she, Free, and respondent each became responsible for one-thi
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