Dayton Bar Association v. Ballato , 143 Ohio St. 3d 76 ( 2014 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Dayton Bar Assn. v. Ballato, Slip Opinion No. 2014-Ohio-5063.]
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. 2014-OHIO-5063DAYTON BAR ASSOCIATION v. BALLATO.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Dayton Bar Assn. v. Ballato,
Slip Opinion No. 2014-Ohio-5063.]
Attorneys at law—Misconduct—Violations of the Disciplinary Rules, including
engaging in illegal conduct involving moral turpitude and conduct that
adversely reflected on his fitness to practice—Indefinite suspension with
no credit granted for time served under an interim felony suspension.
(No. 2013-1985—Submitted February 5, 2014—Decided November 19, 2014.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 2013-001.
_______________________
Per Curiam.
{¶ 1} Respondent, Thomas Andrew Ballato of Hamilton, Ohio, Attorney
Registration No. 0064160, was admitted to the practice of law in Ohio in 1994.
On October 15, 2009, we suspended his license to practice on an interim basis
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pursuant to Gov.Bar R. V(5)(A)(4) upon receiving notice that he had been
convicted of a felony. In re Ballato, 123 Ohio St.3d 1427, 2009-Ohio-5467, 914
N.E.2d 1066. The Board of Commissioners on Grievances and Discipline
recommends that we now indefinitely suspend Ballato on findings that by
engaging in the conduct underlying his felony conviction for possession of child
pornography, he violated DR 1-102(A)(3) (prohibiting a lawyer from engaging in
illegal conduct involving moral turpitude) and 1-102(A)(6) (prohibiting a lawyer
from engaging in conduct that adversely reflects on the lawyer’s fitness to
practice law). Neither party objects to the board’s findings of misconduct or its
recommended sanction.
{¶ 2} On review, we find that Ballato committed the charged violations of
the Disciplinary Rules of the Code of Professional Responsibility, and we
indefinitely suspend him from the practice of law in Ohio with no credit for the
time served under his interim felony suspension.
Findings of Fact and Misconduct
{¶ 3} Over the course of his legal career, Ballato was fired on three
separate occasions for using office computers to view internet pornography. He
voluntarily enrolled in a six-week residential treatment program for sexual
addiction in 2002—although he did not believe that he had a problem at that
time—in an effort to save his first marriage. After the marriage ended the
following year, he struggled to cope with the divorce and his former wife’s efforts
to curtail his visitation with their young son.
{¶ 4} Although Ballato participated in some group counseling, he
continued to view pornography and remained in denial of his addiction. In 2004,
he responded to an online advertisement for “amateur pornography for sale,” and
in the course of an e-mail exchange, the seller revealed that the offer was for child
pornography. Ballato placed an order and mailed a partial payment for the
magazines. Although he testified that he later decided not to complete the
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transaction, he did not cancel the order. On October 4, 2004, the magazines were
delivered by an undercover postal inspector to Ballato’s home while he was at
work. Shortly thereafter, federal officers arrived and conducted searches at both
his home and office.
{¶ 5} The officers found an abundance of adult pornography and three
images of child pornography on Ballato’s office computer. At the panel hearing,
Ballato testified that he had requested and received the images of child
pornography online by instant message. He deleted them shortly after receiving
them and reports that he did not use the images for sexual gratification. He
reported that his sexual preference is adult women. Although he acknowledged
that he developed a curiosity about teenage girls in pornography, he denied
having any sexual interest in prepubescent children.
{¶ 6} In September 2006, Ballato was indicted on federal charges of
receipt of child pornography and possession of child pornography as a result of
the information obtained in the 2004 raid.
{¶ 7} Ballato eventually entered a conditional plea of guilty to a single
charge of possessing child pornography, for which he received a sentence of 48
months in prison, a $100 fine, 100 hours of community service, and lifetime
supervised release. He served 43 months in prison and was released in November
2012.
{¶ 8} The board found that by ordering and possessing child pornography,
Ballato engaged in illegal conduct involving moral turpitude and that that conduct
adversely reflected on his fitness to practice, in violation of DR 1-102(A)(3) and
1-102(A)(6). Because this conduct occurred in 2004, however, the board found
no violation of the corresponding Rules of Professional Conduct, which were also
charged in the complaint, because those rules apply only to conduct occurring on
or after February 1, 2007. We adopt the board’s findings that Ballato’s conduct
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violated DR 1-102(A)(3) and 1-102(A)(6) and hereby dismiss the alleged
violations of the Rules of Professional Conduct.
Sanction
{¶ 9} When imposing sanctions for attorney misconduct, we consider
relevant factors, including the ethical duties that the lawyer violated and the
sanctions imposed in similar cases. Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio
St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶ 16. In making a final
determination, we also weigh evidence of the aggravating and mitigating factors
listed in BCGD Proc.Reg. 10(B).
{¶ 10} The board found as aggravating factors that Ballato had a selfish
motive in viewing and possessing child pornography, that he committed multiple
offenses by downloading images from the internet and ordering magazines, and
that the victims of child pornography are inherently vulnerable. See BCGD
Proc.Reg. 10(B)(1)(b), (d), and (h).
{¶ 11} The board also found a number of significant mitigating factors.
Ballato had practiced law for approximately ten years with no prior disciplinary
offenses. See BCGD Proc.Reg. 10(B)(2)(a). From the beginning, he has accepted
full responsibility for his misconduct and has fully cooperated in the disciplinary
proceedings. See BCGD Proc.Reg. 10(B)(2)(d). And his misconduct did not
harm any clients.
{¶ 12} Ballato also served 43 months in prison and has been sentenced to
a lifetime of supervised release. See BCGD Proc.Reg. 10(B)(2)(f). Conditions of
that supervised release currently prohibit him from using a computer unless it is
necessary for his employment or approved by his probation officer and from
having any unsupervised contact with minor children “with the exception of
contact that may occur during the course of employment, provided that the
[contact] occurs in a public setting and is in the discharge of his official job
duties.” He is also required to participate in mental-health counseling, submit to
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polygraph testing, and permit searches of his person and property (including
papers and electronic data) at any time.
{¶ 13} Shortly after the raid of his home and office, Ballato commenced
counseling for his sex addiction and sought assistance from Sex and Love Addicts
Anonymous (“SLAA”), a 12-step program similar to Alcoholics Anonymous. He
understands that he will likely need to attend these meetings for the rest of his life.
{¶ 14} Once indicted, Ballato voluntarily ceased the practice of law,
though he testified that he did not register his license as inactive until
approximately January 1, 2008. From his arraignment in October 2006 until his
sentencing hearing in April 2009, he remained on home detention with electronic
monitoring.
{¶ 15} Following his release from prison, Ballato submitted to a sex-
offender assessment conducted by Susan Ullman, L.I.S.W.-S., who diagnosed him
with major depressive disorder and a hypersexual disorder. He is not classified as
a pedophile.
{¶ 16} In January 2013, Ballato commenced individual and group therapy
with Ullman, who has extensive experience providing sexual-offender counseling,
and he continued to participate in therapy at the time of his disciplinary hearing.
Ullman testified that he has been cooperative and eager to participate in
counseling sessions, and that despite a long commute, he has had no unexcused
absences. She reports that unlike most untreated sexual offenders she has
encountered, Ballato has always taken responsibility for his actions.
{¶ 17} Ullman also testified that Ballato’s diagnoses of major depressive
disorder and a hypersexual disorder were “in large part responsible for the poor
decisions that he made” and that he does not present a high risk of reoffending.
The board found, however, that he had not achieved a sufficient, sustained period
of successful treatment and therefore determined that his mental disability did not
qualify as a mitigating factor. See BCGD Proc.Reg. 10(B)(2)(g) (providing that
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in order to accord mitigating effect to a mental disability, there must be (i) a
diagnosis by a qualified healthcare professional, (ii) a determination that the
mental disability contributed to cause the misconduct, (iii) a sustained period of
successful treatment, and (iv) a prognosis from a qualified healthcare professional
that the attorney will be able to return to the competent, ethical, professional
practice of law under specified conditions). At the time of his hearing, he had
been in counseling for less than ten months because no treatment was available to
him in prison. But Ullman testified that the standard treatment program takes
approximately two years and usually requires follow-up sessions.
{¶ 18} With regard to Ballato’s supervised release, Ullman testified that
lifetime supervision is “a relatively recent phenomenon” and that she had no
knowledge of anyone having sought to terminate a lifetime period of supervised
release. Therefore, the board presumed that Ballato would actually remain on
supervised release for life.
{¶ 19} In addition to the criminal penalties imposed for his conduct,
Ballato testified that his addiction has cost him two marriages, his son, and his
career. His biggest regret is the loss of his relationship with his son, whom he last
saw in 2006, and who has since been adopted—with Ballato’s consent—by his
stepfather. Ballato currently works as a dishwasher and cook at a restaurant,
earning $8.25 an hour. He is committed to informing potential employers and,
one day, clients about his history.
{¶ 20} Relator recommended that Ballato be indefinitely suspended from
the practice of law with no credit for time served under his interim felony
suspension. Ballato, however, sought some credit for time served. Comparing
the facts of this case to Dayton Bar Assn. v. Greenberg, 135 Ohio St.3d 430,
2013-Ohio-1723, 988 N.E.2d 559, and Disciplinary Counsel v. Ridenbaugh, 122
Ohio St.3d 583, 2009-Ohio-4091, 913 N.E.2d 443, the panel recommended that
we indefinitely suspend Ballato and give him credit for the time served under his
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interim felony suspension. Without stating its reasoning, the board, however,
recommends that we give him no credit for time served.
{¶ 21} We indefinitely suspended Greenberg without credit for time
served for possessing child pornography and transferring obscene materials to
minors. Greenberg at ¶ 4, 13. The panel, therefore, distinguished Ballato’s
conduct from Greenberg’s on the basis that Ballato was convicted only of
possessing child pornography and that he did not contact, or even attempt to
contact a minor, as Greenberg had. And although Ballato’s offense appeared to
be less serious, the panel noted that he served a prison sentence almost twice as
long as Greenberg’s sentence and will be supervised for the rest of his life, while
Greenberg received a five-year period of supervised release. See id. at ¶ 4.
{¶ 22} The panel also found Ridenbaugh to be instructive, noting that
Ridenbaugh had pleaded guilty to pandering sexually oriented matter involving a
minor and illegal use of a minor in nudity-oriented material. Ridenbaugh at ¶ 7.
Although Ridenbaugh’s offenses appear to be more egregious than Ballato’s, he
served only 56 days of his 48-month federal prison sentence before he was
released and placed on community control for five years, with requirements that
he enter therapy and complete 300 hours of community service, among other
restrictions. Id. at ¶ 8.
{¶ 23} Ridenbaugh presented testimony from a social worker from the
Ohio Lawyers Assistance Program (“OLAP”) that he had completed a sustained
period of successful treatment for his dysthymia, chronic substance abuse,
paraphilia, and attention deficit disorder. Ridenbaugh, 122 Ohio St.3d 583, 2009-
Ohio-4091, 913 N.E.2d 443, ¶ 32. But we expressed concern about the frequency
of his psychotherapy appointments, which had been reduced from once every two
weeks to once every three and one-half weeks due to his financial constraints, and
we inferred that he needed greater psychiatric oversight than he could currently
afford. Id. at ¶ 31-33. We also found that his treating psychiatrist expressed “too
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much equivocation” in his optimism for Ridenbaugh’s immediate future. Id. at
¶ 33.
{¶ 24} Presented with the panel’s recommendation that Ridenbaugh be
suspended for two years, without credit for time served under his interim
suspension, and the board’s recommendation that he be indefinitely suspended
from the practice of law, with credit for time served—and thereby subject to the
more stringent process of petitioning for reinstatement pursuant to Gov.Bar R.
V(10)(B)—we adopted the board’s recommendation. In doing so, we stated:
We order respondent’s indefinite suspension from practice and rely
on the reinstatement process to determine when respondent is
capable of practicing within ethical constraints. On the other hand,
we also see no reason to prevent respondent from attempting to
qualify for reinstatement beyond the two-year bar imposed by
Gov.Bar R. V(10(B) and therefore also afford credit for the interim
suspension of his license.
Id. at ¶ 40.
{¶ 25} Because we granted Ridenbaugh credit for time served, he was
technically eligible to apply for reinstatement in February 2010—two years after
his interim felony suspension was imposed—but the opportunity to apply for
reinstatement is not a guarantee that an attorney’s license will, in fact, be
reinstated.
{¶ 26} Before an attorney can benefit from a grant of credit for time
served, the attorney must first establish that he or she presently possesses all the
mental, educational, and moral qualifications that are required of an applicant for
admission to the practice of law in Ohio at the time of the applicant’s original
admission and must comply with the continuing-legal-education (“CLE”)
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requirements of Gov.Bar R. X(13) (requiring a suspended attorney to complete
one hour of CLE for each month or part of a month of the attorney’s suspension).
See Gov.Bar R. V(10)(E)(1)(c).1
{¶ 27} Furthermore, a suspended attorney who has been placed on
community control must either demonstrate by clear and convincing evidence that
he has completed his community control, Gov.Bar R. V(10)(E)(1)(d), or provide
an affidavit from the trial judge stating that the attorney is in compliance with the
terms of community control and establish by clear and convincing evidence that
good cause exists for this court to waive the requirement that the attorney’s
community control be completed before reinstatement. Gov.Bar R. V(10)(E)(2).
Thus, even with credit for the time he had served under his interim felony
suspension, Ridenbaugh faced more than three years of community control that
could prevent him from being reinstated. Ridenbaugh, 122 Ohio St.3d 583, 2009-
Ohio-4091, 913 N.E.2d 443, at ¶ 1, 8.
{¶ 28} At the time of Ballato’s disciplinary hearing, he had not yet
attained a sustained period of successful treatment for his depression and
hypersexual disorder. He had not served a significant period of his term of
supervised release nor had he completed a single polygraph examination—though
Ullman testified that the probation office generally requires them every six to
twelve months. Ballato acknowledged that he was not ready to return to the
practice of law, but he stated that he would like to work toward that goal and that
it would probably take him a good year to complete his CLE requirements and get
ready to petition for reinstatement. He also expressed concern that the current
conditions of his supervised release would leave his future client files open to
1
Gov.Bar R. X(10)(E)(1)(c) requires a petitioner for reinstatement to establish by clear and
convincing evidence that “the petitioner has complied with the continuing legal education
requirements of Gov.Bar R. X, Section 3(G).” However, amendments to Gov.Bar R. X, effective
January 1, 2014, moved the CLE requirements for disciplined attorneys, formerly set forth in
Gov.Bar R. X(3)(G), to Gov.Bar R. X(13). See 115 Ohio St.3d CXLVI and 133 Ohio.St.3d CI,
CVII.
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search by his probation officer, and he expressed a desire to seek modification of
those terms to protect his clients’ confidentiality.
{¶ 29} For these reasons, we believe that an indefinite suspension with no
credit for time served will both protect the public and give Ballato the time that he
needs to address these issues and demonstrate that he is ready to resume the
competent, ethical, and professional practice of law.
{¶ 30} Accordingly, Thomas Andrew Ballato is indefinitely suspended
from the practice of law in Ohio with no credit for time served under his interim
felony suspension. Costs are taxed to Ballato.
Judgment accordingly.
PFEIFER, KENNEDY, FRENCH, and O’NEILL, JJ., concur.
O’CONNOR, C.J. and O’DONNELL, J., dissent and would disbar respondent.
LANZINGER, J., dissents and would grant credit for time served.
_____________________
Brian Douglas Weaver, for relator.
James Thomas Ambrose, for respondent.
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