Disciplinary Counsel v. Cosgrove (Slip Opinion) , 2021 Ohio 2188 ( 2021 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Cosgrove, Slip Opinion No. 2021-Ohio-2188.]
NOTICE
This slip opinion is subject to formal revision before it is published in
an advance sheet of the Ohio Official Reports. Readers are requested
to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
65 South Front Street, Columbus, Ohio 43215, of any typographical or
other formal errors in the opinion, in order that corrections may be
made before the opinion is published.
SLIP OPINION NO. 2021-OHIO-2188DISCIPLINARY COUNSEL v. COSGROVE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Disciplinary Counsel v. Cosgrove, Slip Opinion No.
2021-Ohio-2188.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct—
Attempted unlawful sexual conduct with a minor—Indefinite suspension
with no credit for time served under interim felony suspension.
(No. 2021-0208—Submitted March 31, 2021—Decided June 30, 2021.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2020-044.
______________
Per Curiam.
{¶ 1} Respondent, Michael Francis Cosgrove, of Cleveland Heights, Ohio,
Attorney Registration No. 0072795, was admitted to the practice of law in Ohio in
2000. On July 9, 2019, we suspended him from the practice of law on an interim
basis following his conviction on a fourth-degree-felony count of attempted
SUPREME COURT OF OHIO
unlawful sexual conduct with a minor. In re Cosgrove, 156 Ohio St.3d 1350,
2019-Ohio-2802, 130 N.E.3d 316.
{¶ 2} In an August 11, 2020 complaint, relator, disciplinary counsel,
alleged that the conduct underlying Cosgrove’s criminal conviction constitutes an
illegal act that adversely reflects on his honesty, trustworthiness, and fitness to
practice law.
{¶ 3} The parties submitted stipulations of fact and misconduct and agreed
that Cosgrove should be indefinitely suspended from the practice of law. After
considering those stipulations and 12 stipulated exhibits and hearing Cosgrove’s
testimony, a three-member panel of the Board of Professional Conduct issued a
report finding that he had committed the charged misconduct and recommending
that he be indefinitely suspended from the practice of law with no credit for the
time served under his interim suspension. The board adopted the findings and
recommendation of the panel, and no objections have been filed.
{¶ 4} We adopt the board’s findings of misconduct and recommended
sanction.
Stipulated Facts and Misconduct
{¶ 5} In November 2018, Cosgrove entered an online chatroom and began
a conversation with someone he believed to be a 15-year-old girl. During that
conversation, he discussed sexual matters, solicited the person he believed to be a
minor to participate in sexual activity, and made arrangements to meet with the
person. After the conversation ended, Cosgrove drove to a park where he had
arranged to meet with the person he believed to be a minor and discovered that he
had been communicating with a law-enforcement officer who was posing as a 15-
year-old girl. Cosgrove was arrested and later indicted on charges of attempted
unlawful sexual conduct with a minor, importuning, and possession of criminal
tools.
2
January Term, 2021
{¶ 6} In April 2019, in the Cuyahoga County Court of Common Pleas,
Cosgrove pleaded guilty to attempted unlawful sexual contact with a minor. The
state dismissed the remaining charges. On May 30, 2019, the court found
Cosgrove to be a Tier II sex offender and ordered him to forfeit his iPhone and
submit a DNA specimen. The court then sentenced him to a two-year term of
community control that required him to (1) abide by all rules of the probation
department, (2) report as directed by his probation officer, (3) submit to a sex-
offender assessment, (4) successfully complete sex-offender counseling,
(5) submit to polygraph examinations, (6) comply with all recommendations of
his treatment team, and (7) submit to random drug testing. In addition, the court
ordered Cosgrove to be screened for placement into the NorthWest Community
Corrections Center and, if eligible, to complete the community-based
correctional-facility program. Further, he was ordered to continue treatment and
follow all aftercare recommendations upon his release. At his disciplinary
hearing, Cosgrove testified that he ultimately served 60 days in the community-
based correctional-facility program.
{¶ 7} The parties stipulated and the board found that Cosgrove’s conduct
violated Prof.Cond.R. 8.4(b) (prohibiting a lawyer from committing an illegal act
that reflects adversely on the lawyer’s honesty or trustworthiness) and 8.4(h)
(prohibiting a lawyer from engaging in conduct that adversely reflects on the
lawyer’s fitness to practice law). We accept these findings and agree that
Cosgrove’s conduct was sufficiently egregious to constitute a separate violation of
Prof.Cond.R. 8.4(h). See Disciplinary Counsel v. Bricker, 137 Ohio St.3d 35,
2013-Ohio-3998, 997 N.E.2d 500, ¶ 21.
Sanction
{¶ 8} When imposing sanctions for attorney misconduct, we consider all
relevant factors, including the ethical duties that the lawyer violated, the
3
SUPREME COURT OF OHIO
aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions
imposed in similar cases.
{¶ 9} As aggravating factors, the parties and the board cited Cosgrove’s
dishonest and selfish motive and the vulnerability of his intended victim. See
Gov.Bar R. V(13)(B)(2) and (8). As for mitigating factors, the board concurred
with the parties’ stipulations that Cosgrove (1) does not have a history of prior
discipline, (2) made full and free disclosure to the board and demonstrated a
cooperative attitude toward the disciplinary proceedings, (3) submitted evidence
of his good character and reputation, (4) established the existence of a qualifying
mental disorder, and (5) participated in other interim rehabilitation. See Gov.Bar
R. V(13)(C)(1), (4), (5), (7), and (8). In addition to completing his community-
based correctional-facility program, Cosgrove entered into a three-year contract
with the Ohio Lawyers Assistance Program and was in full compliance with that
contract near the time of his disciplinary hearing.
{¶ 10} The board recommends that we adopt the parties’ stipulated
sanction of an indefinite suspension with no credit for time Cosgrove has served
under his interim felony suspension. In support of that sanction, the board cites
three cases in which we have imposed the same sanction on other attorneys
convicted of similar crimes for attempting to arrange sexual encounters with
minors. See Disciplinary Counsel v. Schwarz, 160 Ohio St.3d 194, 2020-Ohio-
1542, 155 N.E.3d 830 (attorney convicted of importuning for exchanging sexually
charged text messages and attempting to meet with an undercover law-
enforcement officer posing as a 15-year-old boy); Disciplinary Counsel v.
Goldblatt, 118 Ohio St.3d 310, 2008-Ohio-2458, 888 N.E.2d 1091 (attorney
convicted of compelling prostitution and possessing criminal tools after he
attempted to arrange a sexual encounter with an undercover FBI agent posing as a
pimp who promised to procure the attorney an underage girl in exchange for
$200); and Disciplinary Counsel v. Andrews, 124 Ohio St.3d 523, 2010-Ohio-
4
January Term, 2021
931, 924 N.E.2d 829 (attorney convicted of attempted tampering with evidence
and a misdemeanor count of attempted importuning after he engaged in online
conversations soliciting sexual activity from an adult posing as a 13-year-old girl).
{¶ 11} After independently reviewing the record in this case, we adopt the
board’s findings of misconduct and agree that an indefinite suspension with no
credit for time served under our interim suspension order is the appropriate
sanction in this case. As we stated in Schwarz and Goldblatt, “ ‘an indefinite
suspension will help protect the public, deter other lawyers from similar
wrongdoing, and preserve the public’s trust in the legal profession.’ ” Schwarz at
¶ 12, quoting Goldblatt at ¶ 30.
{¶ 12} The board also recommends that we condition Cosgrove’s
reinstatement to the practice of law on proof that he is in compliance with the
terms of his court-ordered community control. However, we find that this
condition is subsumed into Gov.Bar R. V(25)(D)(2), which requires an attorney
seeking reinstatement to the practice of law prior to completing a term of
probation, community control, intervention in lieu of conviction, or any sanction
imposed as part of a sentence for a felony conviction to submit a petition that
includes (1) an affidavit from the trial judge as evidence that the attorney is in
compliance with all terms and conditions of any criminal sanctions, to include
community control, and (2) facts to establish by clear and convincing evidence
that the attorney should be reinstated to the practice of law while subject to any of
those sanctions.
Conclusion
{¶ 13} Accordingly, Michael Francis Cosgrove is indefinitely suspended
from the practice of law in Ohio with no credit for the time served under the
interim felony suspension imposed on July 9, 2019. Costs are taxed to Cosgrove.
Judgment accordingly.
5
SUPREME COURT OF OHIO
O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, DONNELLY, STEWART,
and BRUNNER, JJ., concur.
_________________
Joseph M. Caligiuri, Disciplinary Counsel, and Audrey E. Varwig,
Assistant Disciplinary Counsel, for relator.
Michael Francis Cosgrove, pro se.
_________________
6