Disciplinary Counsel v. Scott (Slip Opinion) ( 2019 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Scott, Slip Opinion No. 2019-Ohio-5194.]
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. 2019-OHIO-5194
DISCIPLINARY COUNSEL v. SCOTT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Disciplinary Counsel v. Scott, Slip Opinion No.
2019-Ohio-5194.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct—
Conditionally stayed one-year suspension.
(No. 2018-1435—Submitted September 11, 2019—Decided December 18, 2019.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2018-021.
__________________
Per Curiam.
{¶ 1} Respondent, Terrence Kensley Scott, of Columbus, Ohio, Attorney
Registration No. 0082019, was admitted to the practice of law in Ohio in 2007. In
an April 30, 2018 complaint, relator, disciplinary counsel, alleged that Scott
engaged in dishonesty, fraud, deceit, or misrepresentation as well as illegal acts that
adversely reflect on his honesty and trustworthiness. Specifically, relator alleged
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that Scott affixed preprinted Universal Product Code (“UPC”) labels for low-cost
items onto more expensive merchandise at a Walmart store and scanned the
fraudulent labels to purchase items for less than their actual price.
{¶ 2} The parties entered into stipulations of fact, misconduct, and
aggravating and mitigating factors. After a hearing before a panel of the Board of
Professional Conduct, the board issued a report recommending that Scott be
suspended from the practice of law for six months, all stayed on the condition that
he commit no further misconduct. We accept the board’s findings of misconduct,
but we suspend Scott from the practice of law for one year, fully stayed on the
condition that he commit no further misconduct.
Misconduct
{¶ 3} The parties stipulate that on December 23, 2017, Scott stole multiple
items from a Walmart store in Whitehall, Ohio. Before entering the store, he
duplicated the UPC labels for low-cost items found in his home. He took those
duplicate labels to Walmart and affixed them to more expensive items. Scott then
scanned the newly affixed UPC labels at the self-checkout in two transactions and
paid a total of $27.35 for items that had an actual value of $367.21.
{¶ 4} A Walmart asset-protection associate noticed that the items Scott had
scanned rang up incorrectly and notified a police officer who was working special
duty at the store. The officer and the associate observed Scott scan multiple items,
including electronics and rugs, that rang up as cheaper food items. After
completing his transactions, Scott attempted to exit the store. The Walmart
associate stopped him in the store vestibule, recovered the merchandise, and
informed Scott that there was a police officer waiting outside. The officer observed
Scott leave the store and identified himself as a police officer. Scott turned away
from the officer, who then fired his taser, striking Scott in the back. Scott fell and
hit his head on the concrete. Officers placed him in handcuffs and, upon searching
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him, found more than 100 additional UPC labels. Scott was transported to a local
hospital, where he received several stitches before being transported to jail.
{¶ 5} Scott was charged with misdemeanor counts of theft by deception,
possession of criminal tools, and obstructing official business. On February 6,
2018, he pleaded guilty to a third-degree-misdemeanor count of criminal mischief.
He received a suspended ten-day jail sentence and was ordered to pay a fine of
$185. Scott paid the fine, and the case was closed.
{¶ 6} The parties stipulated and the board found that Scott’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(c)
(prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit,
or misrepresentation). We adopt these findings of misconduct.
Sanction
{¶ 7} When imposing sanctions for attorney misconduct, we consider all
relevant factors, including the ethical duties that the lawyer violated, the
aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions
imposed in similar cases.
{¶ 8} There is just one aggravating factor present—Scott’s dishonest and
selfish motive. See Gov.Bar R. V(13)(B)(2). As for mitigating factors, the parties
stipulated and the board found that Scott has no prior disciplinary record, had self-
reported his misconduct, had exhibited a cooperative attitude toward the
disciplinary proceedings, and had had other sanctions imposed for his misconduct.
See Gov.Bar R. V(13)(C)(1), (4), and (6). They also acknowledged that Scott had
submitted five letters and the testimony of two witnesses with knowledge of his
misconduct—all attesting to his good character and reputation. See Gov.Bar R.
V(13)(C)(5). Indeed, Judge Kim Browne testified that after she offered Scott a job
as her judicial staff attorney, Scott disclosed his offense and gave her the
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opportunity to rescind the offer. Finding Scott to be forthright and remorseful for
his conduct, however, the judge hired him.
{¶ 9} The board also noted that Scott had made no attempt to minimize or
rationalize his behavior, voluntarily attended several psychotherapy sessions
shortly after he committed the theft and later had submitted to an assessment
conducted by the Ohio Lawyers Assistance Program—neither of which resulted in
findings of any substance-use or mental-health disorders.
{¶ 10} Although relator recommended that Scott be suspended from the
practice of law for one year, fully stayed on the condition that he engage in no
further misconduct, the board recommends that we impose a fully stayed six-month
suspension. In reaching that recommendation, the board considered the sanctions
we imposed for similar misconduct in three cases: Cincinnati Bar Assn. v. Moore,
143 Ohio St. 3d 252, 2015-Ohio-2488, 36 N.E.3d 171; Disciplinary Counsel v.
Grigsby, 128 Ohio St. 3d 413, 2011-Ohio-1446, 945 N.E.2d 512; and Disciplinary
Counsel v. Grubb, 142 Ohio St. 3d 521, 2015-Ohio-1349, 33 N.E.3d 40.
{¶ 11} In Moore, we suspended an attorney from the practice of law for two
years, with the second year stayed on conditions, for engaging in a UPC label-
switching scheme like Scott’s. But prior to his arrest, Moore had used the same
subterfuge to steal expensive bottles of wine from the same store on five occasions
and had also attempted to walk out of a store without paying for 12 bottles of wine
more than ten years earlier. He also had failed to cooperate in the ensuing
disciplinary investigation and knowingly made false statements of material fact to
the relator. Thus, the board found that Scott’s conduct was not as egregious as
Moore’s.
{¶ 12} In Grigsby, we found that the attorney violated Prof.Cond.R. 8.4(b),
8.4(c), and 8.4(h) (prohibiting a lawyer from engaging in conduct that adversely
reflects on the lawyer’s fitness to practice law), based on her misdemeanor
conviction for using an employer-issued credit card for personal expenses over a
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period of more than two years. Two aggravating factors were present: a dishonest
or selfish motive and a pattern of misconduct. But Grigsby had made prompt
restitution to her employer and, like Scott, had no prior discipline, had self-reported
her misconduct, and had fully cooperated in the disciplinary process. We
suspended her from the practice of law for 18 months, all stayed on conditions.
{¶ 13} And in Grubb, we disciplined an attorney who had been convicted
of a single misdemeanor count that adversely reflected on her fitness to practice
law—namely, complicity to commit workers’ compensation fraud for providing
money to a client who was receiving temporary-total-disability benefits. Mitigating
factors included the absence of prior discipline, payment of restitution, evidence of
Grubb’s good character and reputation, and the imposition of other sanctions. We
found that Grubb’s misconduct was not as serious as Grigsby’s because Grubb did
not violate Prof.Cond.R. 8.4(c) and no aggravating factors were present.
Consequently, we imposed a stayed six-month suspension for Grubb’s misconduct.
{¶ 14} Scott’s misconduct is more serious than Grubb’s because Scott
engaged in dishonest conduct in violation of Prof.Cond.R. 8.4(c), but his single
charged instance of misconduct is not as egregious as Grigsby’s misconduct, which
occurred over a period of more than two years. Scott also presented mitigating
evidence of good character and reputation that was lacking in Grigsby.
{¶ 15} Despite finding that this case “falls squarely between Grigsby and
Grubb,” the board recommends that we impose the same stayed six-month
suspension that we imposed in Grubb.
{¶ 16} We agree that the facts in this case fall squarely between Grigsby
and Grubb, and we find that it is analogous to another case cited by the board—
Disciplinary Counsel v. Nass, 65 Ohio St. 3d 160, 602 N.E.2d 610 (1992). Nass
had been convicted of petty theft after she was caught placing over $400 of
department-store merchandise into a bag containing other purchases. Nass received
a suspended 180-day jail sentence and was ordered to pay a fine of $420 and to
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perform 100 hours of community service. We found that Nass’s conduct violated
former disciplinary rules equivalent to Prof.Cond.R. 8.4(b) and (c). We suspended
her from the practice of law for one year, fully stayed on the condition that she
engage in no other conduct involving moral turpitude, recognizing that she had paid
her fine and completed her sentence, had been a valued employee but lost her job
in the wake of her conviction, had no significant criminal record, and had
independently sought a psychological evaluation and treatment for her behavior.
{¶ 17} Having considered Scott’s misconduct, the aggravating and
mitigating factors present in this case, and the sanctions we imposed in Grigsby,
Grubb, and Nass, we believe that a conditionally stayed one-year suspension is the
appropriate sanction in this case.
{¶ 18} Accordingly, Terrence Kensley Scott is suspended from the practice
of law in Ohio for one year, fully stayed on the condition that he engage in no
further misconduct. If Scott violates the condition of the stay, the stay will be lifted
and he will serve the entire one-year suspension. Costs are taxed to Scott.
Judgment accordingly.
O’CONNOR, C.J., and KENNEDY, FRENCH, FISCHER, DEWINE, DONNELLY,
and STEWART, JJ., concur.
_________________
Joseph M. Caligiuri, Disciplinary Counsel, and Lia J. Meehan, Assistant
Disciplinary Counsel, for relator.
Terrence Kensley Scott, pro se.
_________________
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