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

Kelly, Disciplinary Counsel. v.121 Ohio St.3d 39, 2009-Ohio-317. Decided 2/4/2009Case Summaries- 157Respondent, 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 embezzledover $40,000. In Count I, respondent served in an unpaid position as treasurer for GCHS from late 2004 throughAugust 2006. As treasurer, she maintained three banks accounts, was authorized to use a GCHS credit card, paidbills, made bank deposits, and prepared the annual IRS 990 tax form. Respondent transferred GCHS funds fromBank One to Countrywide Federal Credit Union, where she kept her personal bank accounts. She deposited theGCHS money into new accounts to which only she had access. Between January 2005 and August 2006, shemisused 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, theboard adopted the panel‘s findings of violations of DR 1-102(A)(4), DR 1-102(A)(6), and Canon 2 of the Code ofJudicial Conduct. In Count II, respondent was a full-time magistrate, and eventually chief magistrate, in the GreeneCounty Common Pleas Court from August 2000 through October 2006. During this time period, she regularlyprovided volunteer legal services to GCHS: providing advice, drafting animal-adoption contracts, filing pleadings inanimal-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. BCGDProc.Reg. 10(B)(1)(b) and (c). In mitigation, respondent has no prior disciplinary record, made restitution, made fulldisclosure and acknowledgement of her wrongdoing, showed good character, and claimed a mental disability ofobsessive compulsive disorder. BCGD Proc.Reg. 10(B)(2)(a), (c), (d), (e), and (g). Respondent claims that shealways intended to repay GCHS and she did voluntarily disclose her theft to the president of GCHS, but not until aGCHS investigation made discovery imminent and she deposited $4,800 back into the GCHS account. She didreport her misconduct to relator, but only after first entering into a confidential settlement agreement with GCHS inwhich she agreed to repay $38,121.09 and the agency agreed not to press criminal charges. Further respondentminimized the extent of her wrongdoing in her initial report to relator by claiming she had made ―unauthorizedexpenditure[s]‖ without mentioning the $42,000 figure which had been determined through an investigation andaudit. The panel recommended a two-year suspension, with the last six months stayed on the condition thatrespondent receive mental health treatment, but the board recommended an indefinite suspension ―based on thepositions of trust that she held and the seriousness of the repeated misconduct.‖ Respondent challenged theboard‘s recommendation, arguing in favor of the panel‘s recommended sanction based on her extensive mitigatingevidence. Respondent urged the court to accept the panel‘s recommendation, citing cases as to deference to hearingpanel‘s credibility, but the court noted that those cases were not applicable as the facts are not in dispute and nowitness‘s testimony has been challenged as unreliable. The court also noted that although it ordinarily acceptspanel‘s and board‘s conclusion as to propriety or conduct or the appropriate sanction, it need not defer—the court isfree to exercise independent judgment as to evidentiary weight and applicable law. The Supreme Court examinedrespondent‘s history of laudable passions as a volunteer for GCHS since 1997 for animal protection and welfare andan adoptive and foster parent. However, these passions strained respondent‘s financial resources as well as herphysical and mental wellbeing and have contributed in part to the misconduct at issue in this case. Respondenttook 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 mitigatingevidence 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 reinstatementconditioned on respondent‘s treatment for her asserted diagnosis of obsessive compulsive disorder, certification by aqualified health-care professional that she is able to competently and ethically practice law, and full restitution ofthe embezzled funds, in addition to fulfilling the requirements of Gov.Bar R. V(10)(C) through (E). One justicedissenting 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: NOPublic Official: YES Sanction: Indefinite Suspension