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

Ridenbaugh, Disciplinary Counsel v.
122 Ohio St.3d 583, 2009-Ohio-4091. Decided 8/20/2009.
Case Summaries- 273
Respondent pleaded guilty to a bill of information charging him with three counts of pandering sexually
oriented matter involving a minor in violation of R.C. 2907.322(A)(5), a felony of the fourth degree, and one count
of the illegal use of a minor in nudity-oriented material or performance in violation of R.C. 2907.323(A)(3), a
felony of the fifth degree, for acts occurring on 11/9/2006. On 11/21/2007, he was sentenced to a 48-month prison
term. In mid-January 2008, after serving 56 days, he was granted early judicial release, placed on community
control for five years, ordered into therapy and ordered to comply with probationary restrictions, including
completion of 300 hours of community service. On February 7, 2008, he received an interim felony suspension
from the practice of law in In re Ridenbaugh 116 Ohio St.3d 1511, 2008-Ohio-441. In 2004, respondent began
engaging in the activities that would lead to his arrest. While walking around his apartment complex, he noticed that
he could hear people inside an apartment having sexual relations. He started placing a recording device outside
apartment windows so he could record residents‘ sexual activity and later listen to them for sexual gratification.
He continued making these recordings until May 21, 2007 when a resident spied him placing a recording device
outside a bedroom window. He was apprehended by law enforcement later the same day. He confessed to
surreptitious recordings. Police searched his apartment which revealed possession of child pornography—three
videos and hundreds of photos and digital images showing minors in various stages of nudity. He later revealed
that he began obtaining the child pornography near the end of 2006. Officers found that he had made a peephole
allowing him to view the female in the adjoining apartment. Respondent admitted to the following violations and
the Board adopted panel‘s findings and conclusions that respondent violated DR 1-102(A)(3), Prof.Cond.R. 8.4(b),
DR 1-102(A)(6), and Prof.Cond.R. 8.4(h). In mitigation, there is no disciplinary record, he cooperated, his has
attempted to rectify his misconduct by seeking and continuing treatment for psychological and psychiatric disorders,
he has undergone other significant sanctions. BCGD Proc.Reg 10(B)(2)(a), (c), (d), (f). In aggravation, there was a
selfish motive by his succumbing to his sexual fetishes without regard to privacy and well being of his victims, there
were multiple offenses over a period of years, his conduct was directed at vulnerable victims. BCGD Proc.Reg
10(B)(1)(b), (d), (h). Panel recommended that this court suspend respondent for two years, order him to comply with
various restrictions, and deny his request for credit for time served under the interim suspension. Board
recommended an indefinite suspension under suggested restrictions and without credit for time served under the
interim suspension. Respondent objected to the board‘s recommendation and claimed the Board did not adequately
acknowledge his remorse and mental disability. The court noted that the Board did not specify his contrition as a
mitigating factor, but that the court had no difficulty accepting he deeply regrets his misconduct and its devastating
effects. But, the court noted that respondent is unable for now to completely satisfy the test in BDGD Proc.Reg.
10(B)(2)(g)(i) through (iv) for attributing significant mitigating effect to his mental disability. He established the
first three elements, but not the fourth requirement of a prognosis that he will be able to return to competent, ethical
professional practice under conditions—the court found too much equivocation in the treating psychiatrist‘s
optimism for respondent‘s immediate future. His psychiatrist testified that he had 1) dysthymia since childhood; 2)
chronic substance abuse, mainly marijuana; 3) paraphilia, manifested by voyeuristic and pedophiliac activity, with
mixed character disorder marked by a passive, socially avoidant personality, and (4) attention deficit disorder.
Since he entered therapy he has not engaged in illegal sexual activity and a random drug testing showed that he had
ceased all substance abuse. The Supreme Court of Ohio agreed with the Board‘s findings and conclusions of
violations, but disagreed with the recommended sanction of indefinite suspension with no credit for time served
under the interim suspension. The Supreme Court ordered an indefinite suspension with credit for time served
under the February 7, 2008 interim suspension, and upon petition for reinstatement in addition to the
requirements of Gov.Bar R. V(10) must show proof of (1) compliance with terms of ordered community control, (2)
compliance with OLAP contract, (3) continued psychiatric treatment and ability to return to competent, ethical, and
professional practice of law. One justice dissented and would disbar respondent.
Rules Violated: Prof.Cond.R. 8.4(b), 8.4(h); DR 1-102(A)(3), 1-102(A)(6)
Aggravation: (b), (d), (h)
Mitigation: (a), (c), (d), (f)
Prior Discipline: NO Procedure/ Process Issues: NO Criminal Conduct: YES
Public Official: NO Sanction: Indefinite Suspension