disciplinary handbook: volume v - Supreme Court - State of Ohio

Kelly, Disciplinary Counsel. v.
121 Ohio St.3d 39, 2009-Ohio-317. Decided 2/4/2009
Case Summaries- 157
Respondent, a full-time magistrate in the Greene County Common Pleas Court, Domestic Relations Division,
impermissibly practiced law as a volunteer of the Greene County Humane Society (GCHS), where she embezzled
over $40,000. In Count I, respondent served in an unpaid position as treasurer for GCHS from late 2004 through
August 2006. As treasurer, she maintained three banks accounts, was authorized to use a GCHS credit card, paid
bills, made bank deposits, and prepared the annual IRS 990 tax form. Respondent transferred GCHS funds from
Bank One to Countrywide Federal Credit Union, where she kept her personal bank accounts. She deposited the
GCHS money into new accounts to which only she had access. Between January 2005 and August 2006, she
misused her authority and misappropriated over $40,000 from GCHS, using it to pay her family‘s living expenses.
She concealed the theft by preparing 11 false reports to present at monthly GCHS board meetings. As to Count I, the
board adopted the panel‘s findings of violations of DR 1-102(A)(4), DR 1-102(A)(6), and Canon 2 of the Code of
Judicial Conduct. In Count II, respondent was a full-time magistrate, and eventually chief magistrate, in the Greene
County Common Pleas Court from August 2000 through October 2006. During this time period, she regularly
provided volunteer legal services to GCHS: providing advice, drafting animal-adoption contracts, filing pleadings in
animal-cruelty cases, and appearing in court. The board adopted the panel‘s findings of a violation of Canon 4(F).
In aggravation, respondent acted with a dishonest and selfish motive and engaged in a pattern of misconduct. BCGD
Proc.Reg. 10(B)(1)(b) and (c). In mitigation, respondent has no prior disciplinary record, made restitution, made full
disclosure and acknowledgement of her wrongdoing, showed good character, and claimed a mental disability of
obsessive compulsive disorder. BCGD Proc.Reg. 10(B)(2)(a), (c), (d), (e), and (g). Respondent claims that she
always intended to repay GCHS and she did voluntarily disclose her theft to the president of GCHS, but not until a
GCHS investigation made discovery imminent and she deposited $4,800 back into the GCHS account. She did
report her misconduct to relator, but only after first entering into a confidential settlement agreement with GCHS in
which she agreed to repay $38,121.09 and the agency agreed not to press criminal charges. Further respondent
minimized the extent of her wrongdoing in her initial report to relator by claiming she had made ―unauthorized
expenditure[s]‖ without mentioning the $42,000 figure which had been determined through an investigation and
audit. The panel recommended a two-year suspension, with the last six months stayed on the condition that
respondent receive mental health treatment, but the board recommended an indefinite suspension ―based on the
positions of trust that she held and the seriousness of the repeated misconduct.‖ Respondent challenged the
board‘s recommendation, arguing in favor of the panel‘s recommended sanction based on her extensive mitigating
evidence. Respondent urged the court to accept the panel‘s recommendation, citing cases as to deference to hearing
panel‘s credibility, but the court noted that those cases were not applicable as the facts are not in dispute and no
witness‘s testimony has been challenged as unreliable. The court also noted that although it ordinarily accepts
panel‘s and board‘s conclusion as to propriety or conduct or the appropriate sanction, it need not defer—the court is
free to exercise independent judgment as to evidentiary weight and applicable law. The Supreme Court examined
respondent‘s history of laudable passions as a volunteer for GCHS since 1997 for animal protection and welfare and
an adoptive and foster parent. However, these passions strained respondent‘s financial resources as well as her
physical and mental wellbeing and have contributed in part to the misconduct at issue in this case. Respondent
took advantage of a position of trust to subsidize her passions and at the same time live well beyond her means.
Disbarment is the presumptive disciplinary measure for acts of misappropriation. The significant mitigating
evidence presented in this case caused the Court to exercise leniency from the standard presumptive sanction.
Therefore, the Supreme Court agreed with the board and so ordered an indefinite suspension with reinstatement
conditioned on respondent‘s treatment for her asserted diagnosis of obsessive compulsive disorder, certification by a
qualified health-care professional that she is able to competently and ethically practice law, and full restitution of
the embezzled funds, in addition to fulfilling the requirements of Gov.Bar R. V(10)(C) through (E). One justice
dissenting in favor of a two-year suspension.
Rules Violated: DR 1-102(A)(4), 1-102(A)(6); Code of Judicial Conduct (former) Canons 2, 4(F)
Aggravation: (b), (c)
Mitigation: (a), (c), (d), (e), (g)
Prior Discipline: NO Procedure/ Process Issues: YES Criminal Conduct: NO
Public Official: YES Sanction: Indefinite Suspension