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

O’Malley, Disciplinary Counsel v.
126 Ohio St.3d 443, 2010-Ohio-3802. Decided 8/24/2010.
Case Summaries- 241
Respondent pleaded guilty on a single count of transporting and importation of obscene matters in
violation of 18 U.S.C. §1462(a). He was sentenced on October 3, 2008 to 15 months in prison and three
years of supervised release. On December 4, 2008, he received an interim felony suspension from the
practice of law in In re O’Malley, 120 Ohio St.3d 1426, 2008-Ohio-6274. Respondent was elected
recorder of Cuyahoga County in 1998, 2000, and 2004. After winning the 2008 primary, he agreed to
plead guilty. He resigned his elected office. The misconduct occurred from February 18, 1998
through November 16, 2004. The panel and board accepted the parties‘ consent-to-discipline agreement
to a DR 1-102(A)(6) violation and a 12 month suspension with credit for time served, but the Supreme
Court of Ohio rejected the agreement. At the disciplinary hearing, respondent testified that the obscene
materials were erotic photographs of adults and erotic stories that he and his wife had viewed in the
privacy of their home. He claimed his former wife broke into his home, seized the computers, and
turned them over to the FBI to gain an advantage over him in their then pending divorce and childcustody
litigation. Based on the parties stipulations, as well as the hearing testimony, the panel and
board found a violation of DR 1-102(A)(6) and recommended a 12-month suspension with credit for time
served under the interim felony suspension. The Court accepted the Boards finding of a DR 1-102(A)(6)
violation, but disagreed with the recommended sanction. There were no aggravating factors. In
mitigation, respondent lacked a prior disciplinary record, fully cooperated and made free disclosure in
the disciplinary process, had received other penalties or sanctions for this conduct, did not cause any
harm to his clients, and provided evidence of otherwise good character. BCGD Proc.Reg. 10(B)(2)(a),
(d), (f), and (e). Respondent expressed genuine remorse and accepted responsibility for the consequences
of his actions, including bankruptcy, loss of his job, and potentially the loss of his law license. The Court
noted that the cases cited by the Board in its recommendation as to sanction dealt with financial crimes,
not sexual crimes. The Court noted that in two cases involving sexual misconduct, Ridenbaugh (2009)
and Linnen (2006), the attorneys received indefinite suspensions. The Court noted that, at first
glance, these cases seemed to involve more serious misconduct than respondent‘s importation of
obscenity depicting consenting adults, but those attorneys actually served less time in prison than
respondent. The Court ordered that respondent be suspended from the practice of law for two years,
with credit for time served for the interim felony suspension, and as a condition to reinstatement
respondent must complete his federal supervised release. Two justices dissented and would have adopted
the Board‘s recommended sanction of a 12-month suspension with credit for time served under the interim
felony suspension.
Rules Violated: DR 1-102(A)(6)
Aggravation: NONE
Mitigation: (a), (d), (e), (f)
Prior Discipline: NO Procedure/ Process Issues: NO Criminal Conduct: YES
Public Official: YES Sanction: Two-year suspension