Mahoning County Bar Ass'n v. Sinclair , 105 Ohio St. 3d 65 ( 2004 )

[Cite as Mahoning Cty. Bar Assn. v. Sinclair, 105 Ohio St. 3d 65, 2004-Ohio-7014.]
MAHONING COUNTY BAR ASSOCIATION v. SINCLAIR.
[Cite as Mahoning Cty. Bar Assn. v. Sinclair,
105 Ohio St. 3d 65, 2004-Ohio-7014.]
Attorneys at law — Misconduct —— Engaging in conduct involving dishonesty or
deceit — Engaging in conduct adversely reflecting on fitness to practice
law — Indefinite license suspension required when attorney has paid
illegal gratuities to public official.
(No. 2004-1064 — Submitted October 12, 2004 — Decided December 29, 2004.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 03-045.
_______________________
Per Curiam.
{¶ 1} Respondent, R. Allen Sinclair of Boardman, Ohio, Attorney
Registration No. 0055915, was admitted to the practice of law in Ohio in 1991.
On March 29, 2000, we ordered a six-month suspension of respondent’s license,
which we stayed, for his failure to comply with requirements for advertising his
legal services. We placed respondent on probation for one year with conditions.
See Mahoning Cty. Bar Assn. v. Sinclair (2000), 88 Ohio St. 3d 328, 725 N.E.2d
1114. The court terminated respondent’s probation on June 22, 2001. See
Mahoning Cty. Bar Assn. v. Sinclair (2001), 92 Ohio St. 3d 1425, 749 N.E.2d 753.
{¶ 2} On May 13, 2003, relator, Mahoning County Bar Association,
charged respondent with additional violations of the Code of Professional
Responsibility, all of which involved his association with former United States
Congressman James A. Traficant Jr., who had been convicted of conspiracy to
commit bribery, conspiracy to violate illegal-gratuity statutes, accepting an illegal
gratuity, obstructing justice, conspiring to defraud the federal government, filing
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false tax returns, and racketeering. See United States v. Traficant (C.A.6, 2004),
368 F.3d 646 (convictions affirmed). A panel of the Board of Commissioners on
Grievances and Discipline heard the cause, made findings of misconduct, and
recommended that respondent be suspended from the practice of law for two
years, with 18 months stayed on the condition that he commit no further
misconduct. The board adopted the panel’s findings of misconduct but
recommended a two-year suspension.
Misconduct
{¶ 3} The complaint alleged misconduct in three separate but related
events: (1) respondent’s kickbacks to Traficant from his salary as a congressional
staff member, (2) respondent’s agreement to rent Traficant office space through
KAS Enterprises, and (3) respondent’s preparation of a quitclaim deed for
Traficant to transfer some property to Traficant’s daughter. The complaint
charged that respondent had in the course of these events violated DR 1-
102(A)(3) (barring illegal conduct involving moral turpitude), 1-l02(A)(4)
(barring conduct involving dishonesty, fraud, deceit, or misrepresentation), 1-
102(A)(6) (barring any conduct that adversely reflects on a lawyer’s fitness to
practice law), 7-102(A)(6) (prohibiting a lawyer from using false evidence), 7-
102(A)(7) (prohibiting a lawyer from counseling or assisting a client in illegal or
fraudulent conduct), and 7-102(A)(8) (prohibiting any illegal conduct or act in
violation of a Disciplinary Rule).
{¶ 4} Upon graduation from law school, respondent started a private law
practice and leased office space from then attorney Henry A. DiBlasio in
Youngstown. In addition to practicing law, DiBlasio was Traficant’s chief of
staff and had been for years. DiBlasio eventually resigned from the Ohio bar with
disciplinary action pending. See In re Resignation of DiBlasio, 99 Ohio St. 3d
1207, 2003-Ohio-2733, 789 N.E.2d 239.
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{¶ 5} Respondent came to rely on DiBlasio as his mentor, and from this
relationship, respondent’s ethical problems developed. DiBlasio had an extensive
general law practice that included corporate representation. DiBlasio also served
as a special counsel to the Ohio Attorney General, overseeing collection cases
with sales-tax issues. Respondent helped DiBlasio in his practice and also started
accepting criminal cases and court appointments in an attempt to extend his own
practice. Respondent had previously worked for years in the medical field, and he
worked to establish a personal-injury practice as well.
{¶ 6} Before leasing office space with DiBlasio, respondent knew
Traficant only through intermittent interaction in their community. Afterward, the
two became more familiar because Traficant also rented space in DiBlasio’s
building. Traficant’s suite occupied the entire first level of the two-story building.
He also had a private office on the second floor.
{¶ 7} In January 1996, DiBlasio and respondent formed a partnership
that lasted for two years. During this time, DiBlasio continued to pay for the
firm’s advertising and advanced these expenses and others for respondent’s
developing personal-injury practice. But in the summer of 1998, DiBlasio
unexpectedly announced his retirement.
{¶ 8} With DiBlasio’s retirement looming, respondent became deeply
concerned about the financial end of the partnership, particularly funding the
advertising that he considered necessary to build a solid practice. In fact, when
DiBlasio expressed his intention to retire, respondent owed him approximately
$100,000 for advertising expenses. Moreover, as part of his retirement, DiBlasio
planned to sell the building that housed the partnership’s offices, to liquidate all of
his assets, and to move to Florida. This development also troubled respondent
because he had personally remodeled the office space, devoting much time and
money to the project.
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{¶ 9} Against this backdrop, DiBlasio advised respondent that he would
be resigning as Traficant’s chief of staff, and he offered to recommend respondent
for Traficant’s staff. Respondent learned in October 1998 that Traficant was
interested in hiring him. Traficant later came to respondent’s office and requested
that they take a ride to discuss respondent’s employment.
{¶ 10} In the car, Traficant offered to hire respondent as an administrative
assistant and counsel, explaining that he had always had an attorney on staff and
always would. Although respondent had previously performed some work for
Traficant, he expressed reservations about what services he could realistically
offer as an aide. Traficant reassured respondent, describing various research or
constituent projects and other work that he would ask respondent to complete
from time to time. Traficant offered respondent an annual salary of $60,000 to
$65,000 and said that respondent could maintain his law practice as long as he
could still work at Traficant’s discretion. Traficant also told respondent that, as a
condition of his employment, he would be required to repay $2,500 of his
monthly paycheck to Traficant.
{¶ 11} Traficant and respondent’s conversation eventually turned to office
space. Respondent and Traficant agreed that if respondent paid the kickback and
also bought DiBlasio’s building, a purchase respondent was already considering,
Traficant would rent DiBlasio’s office space. Respondent thought that this
arrangement would enable him to maintain his private law practice while working
for Traficant.
{¶ 12} Respondent accepted the staff position in Traficant’s office and
started immediately. The job and Traficant’s increased lease payments were
essential to respondent financially. And in exchange for respondent’s job, the
kickbacks and leasehold arrangement were essential to Traficant.
{¶ 13} Respondent later discussed with DiBlasio the $2,500 monthly
payments that Traficant had demanded. DiBlasio confirmed that he and Traficant
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had had a similar arrangement. DiBlasio told respondent how to pay the kickback
– by cashing his paycheck, placing $2,500 each month in an envelope, and giving
the envelope to Traficant.
{¶ 14} Respondent eventually purchased the office building, which was
actually owned by a corporation that DiBlasio had formed, for $120,000. He did
not, however, buy the building in his own name. Because DiBlasio had told him
that ethics rules precluded a congressional staff member from leasing property to
a congressman, respondent bought the property using a trade name, KAS
Enterprises, registered to his wife. Respondent claimed that this arrangement
satisfied congressional ethics rules.
{¶ 15} Over the next year or so, until January 2000, Traficant leased
office space from KAS Enterprises in accordance with his and respondent’s
agreement. Also during this period, respondent paid Traficant over $32,000 in 13
or 14 monthly installments of $2,500. Unlike DiBlasio, however, respondent
deposited his paycheck and then withdrew Traficant’s kickback, transactions
memorialized in bank statements that would eventually be used to prosecute
Traficant. Traficant, in turn, paid $656 ($6 a square foot ) per month, a somewhat
low rental price for his expanded office space.
{¶ 16} While working for Traficant as his administrative aide and counsel,
respondent assisted Traficant in deeding some rural property, referred to as
Traficant’s farm, to Traficant’s daughter. In or around December 1999,
respondent prepared a quitclaim deed; however, respondent did not acknowledge
his role as the preparer in the space provided because he “didn’t feel comfortable”
having his name on the document. Respondent knew of tax judgments against
Traficant and that Traficant was trying to hide assets from creditors, and
respondent feared that transferring this property might constitute a fraudulent
conveyance. The deed was later recorded and apparently has not been challenged.
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{¶ 17} Relator withdrew its allegation that respondent had violated DR1-
102(A)(3). The parties stipulated, the panel agreed, and the board found that
respondent had violated DR 1-102(A)(4) and 1-102(A)(6) by making kickbacks to
Traficant. Rejecting respondent’s claim that he was not acting as Traficant’s
attorney when he prepared the quitclaim deed, the panel and board also found
clear and convincing evidence that, in addition to violating DR 1-102(A)(4) and
1-102(A)(6), respondent had violated 7-102(A)(6), 7-102(A)(7), and 7-102(A)(8)
by preparing the deed for Traficant.
Sanction
{¶ 18} In recommending a sanction for this misconduct, the panel
considered the aggravating and mitigating features of respondent’s case. See
Section 10 of the Rules and Regulations Governing Procedure on Complaints and
Hearings Before the Board of Commissioners on Grievances and Discipline
(“BCGD Proc.Reg.”). In aggravation, the panel found that respondent had a prior
disciplinary record for failing to make required disclosures in direct-mail
solicitations. BCGD Proc.Reg. 10(B)(1)(a). And although respondent accepted
Traficant’s job offer in part because of DiBlasio’s retirement and although
Traficant had said that the $2,500 payments were merely “loans,” the panel found
that respondent knew in his heart that the payments were wrong or illegal. On the
other hand, the panel did not find a pattern of misconduct or multiple offenses,
even though respondent had paid Traficant kickbacks for over one year,
concluding instead that the whole transaction was one isolated incident. See
BCGD Proc.Reg. 10(B)(1)(c) and (d).
{¶ 19} In mitigation, the panel found that respondent had made a good-
faith effort to rectify the consequences of his misconduct inasmuch as he had
cooperated in the government’s prosecution and had testified against Traficant.
BCGD Proc.Reg. 10(B)(2)(c). Respondent had also fully and freely disclosed his
transgressions during the disciplinary process, expressed remorse for his
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misconduct, and acknowledged that he had acted with poor judgment and
dishonesty. BCGD Proc.Reg. 10(B)(2)(d). Moreover, three character witnesses
and numerous reference letters asserted respondent’s good character and
reputation for honesty apart from the underlying incidents. BCGD Proc.Reg.
10(B)(2)(e). An assistant United States attorney and an FBI agent noted
respondent’s cooperation during the corruption investigation in Youngstown.
Finally, the panel found that respondent would never repeat his misconduct and
had already paid a price for his wrongdoing – respondent’s reputation had been
under a cloud during the four-year criminal investigation leading to Traficant’s
conviction. BCGD Proc.Reg. 10(B)(2)(f).
{¶ 20} Relator initially suggested that respondent be disbarred for his
misconduct. After the panel hearing, however, relator reconsidered and proposed
an indefinite suspension. Respondent advocated a stayed suspension. The panel
recommended a two-year suspension with the last 18 months stayed on the
condition that respondent commit no further misconduct. The board
recommended, “based on the nature and seriousness of the offenses,” that
respondent be suspended from the Ohio bar for two full years.
Review
{¶ 21} Objecting to the board’s findings and recommendation, respondent
argues that he did not violate DR 7-102(A)(6), (7), and (8) in preparing the
quitclaim deed for Traficant. He also urges us to defer to the panel’s
recommended sanction or to be more lenient. Relator objects as well, arguing that
respondent violated DR 1-102(A)(4) and (6) by leasing office space to Traficant
as part of the bribery deal to get on Traficant’s congressional staff. Relator urges
us to indefinitely suspend respondent.
{¶ 22} Pursuant to our independent review in disciplinary cases, Ohio
State Bar Assn. v. Reid (1999), 85 Ohio St. 3d 327, 708 N.E.2d 193, paragraph one
of the syllabus, we find that respondent violated DR 1-102(A)(4) and (6) first in
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paying Traficant kickbacks in exchange for employment and second in leasing
office space to Traficant despite being Traficant’s employee. We also find, as did
the board, that respondent violated these Disciplinary Rules a third time by
concealing his name as the preparer of the quitclaim deed that he realized
Traficant might use to avoid future creditors. Finally, because respondent’s
admitted suborning and dishonesty manifest a fundamental breach of his duty to
the public, we find that an indefinite suspension is appropriate regardless of any
concomitant violations of DR 7-102(A)(6), (7), or (8).
{¶ 23} Few offenses so calamitously violate the public trust placed in the
legal profession as does the secret offer of gratuities to a public official. Whether
or not a conviction results, this misconduct lays waste to the community’s
expectation that lawyers will exhibit “the highest standards of honesty and
integrity,” American Bar Association, ABA Standards for Imposing Lawyer
Sanctions (1992) 9, and contributes to the fear that lawyers will “take advantage
of public trust if given the opportunity.” Disciplinary Counsel v. Pizzedaz
(1994), 68 Ohio St. 3d 486, 487, 628 N.E.2d 1359. We have therefore disbarred
attorneys for bribery-related acts involving public officials. See Cleveland Bar
Assn. v. Jurek (1991), 62 Ohio St. 3d 318, 581 N.E.2d 1356 (attorney’s bribing of
bond commissioner to avoid random judicial assignments warranted permanent
disbarment); Disciplinary Counsel v. DiCarlantonio (1994), 68 Ohio St. 3d 479,
628 N.E.2d 1355 (city attorney who received $15,000 for his part in changing
fire ordinance was disbarred), and Disciplinary Counsel v. Melamed (1991), 62
Ohio St. 3d 187, 580 N.E.2d 1077 (attorney disbarred for paying bribes to court's
bond commissioner in order to obtain assignment of his cases to judges of his
choice, among other misconduct).
{¶ 24} Despite the magnitude of this misconduct, respondent contends
that the mitigating features of his case, mainly his cooperation in the
prosecution’s case against Traficant, warrant a lesser sanction than indefinite
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suspension. Stressing that the disciplinary system exists to protect the public
rather than to punish offending lawyers, respondent essentially argues that
because he has promised not to pay kickbacks ever again, a more rigorous
sanction is unnecessary. We disagree.
{¶ 25} Even after taking a lawyer’s cooperation, contrition, and other
evidence of mitigation into account, we have historically imposed at least an
indefinite suspension when lawyers have paid either a bribe or gratuity to a
public official. Disciplinary Counsel v. McClenaghan (1991), 57 Ohio St. 3d 21,
565 N.E.2d 572; Bar Assn. of Greater Cleveland v. Italiano (1986), 24 Ohio
St.3d 204, 24 OBR 431, 494 N.E.2d 1113; Columbus Bar Assn. v. Gloeckner
(1982), 1 Ohio St. 3d 83, 1 OBR 120, 437 N.E.2d 1197.
{¶ 26} In fact, we routinely indefinitely suspend lawyers who merely
suggest that public officials may be subject to financial influence. Dayton Bar
Assn. v. O'Brien, 103 Ohio St. 3d 1, 2004-Ohio-3939, 812 N.E.2d 1263 (attorney
indefinitely suspended for suggesting to client that judge would allow withdrawal
of a guilty plea for money); Columbus Bar Assn. v. Benis (1983), 5 Ohio St. 3d
199, 5 OBR 415, 449 N.E.2d 1305 (attorney indefinitely suspended for offering
to influence a member of the governor's staff to get clemency for a client’s
husband); and Ohio State Bar Assn. v. Consoldane (1977), 50 Ohio St. 2d 337, 4
O.O.3d 477, 364 N.E.2d 279 (attorney indefinitely suspended for suggesting that
he could obtain client’s shock probation with a bribe). And contrary to
respondent’s argument, although these sanctions generally result in combination
with a lawyer’s conviction for influence-peddling, the fact of a conviction has
never been critical to our disposition. Whether or not the lawyer is ultimately
held criminally accountable, the lawyer’s pledge to spurn such corruption is
violated, and the breach of that duty threatens the public interest.
{¶ 27} Moreover, as relator argues, the circumstances preceding
respondent’s decision to cooperate with federal authorities are not as extenuating
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as respondent asserts. Respondent did not alert the FBI about Traficant when
agents initially interviewed him on January 21, 2000, while investigating
DiBlasio’s affairs. By that time, respondent’s payoffs to Traficant were routine.
And after meeting with the FBI, respondent did not immediately seek legal
counsel to help him consider cooperating. He instead reported the meeting to
Traficant, who recommended that respondent refuse any further communication
with the agency.
{¶ 28} Respondent did not heed Traficant’s admonition, and on January
24, 2000, he met with FBI agents again. On that day, respondent again did not
raise the possibility of his cooperation. To the contrary, when asked point-blank
if he was kicking money back to Traficant, respondent appeared shocked and
offered nothing. The inquiring FBI agent recalled respondent’s reaction:
{¶ 29} “When I asked him the question, he was very startled. He gave
me what I thought was a thousand yard stare. I could tell he didn’t know what to
do at that point. He seemed very confused. He said something to the effect of
I’m not going to help you get Traficant or something. He left the office. He
ended the interview and left the office.”
{¶ 30} After the second FBI meeting, respondent again reported to
Traficant, who became very angry at the news. Then, to avoid any surveillance
devices, Traficant and respondent took another ride, drove around for hours, and
at some point went to Traficant’s office and switched vehicles. In the second
vehicle, Traficant offered respondent envelopes of money in a plastic bag and
suggested ways that he might explain the surplus funds to exonerate Traficant.
{¶ 31} They ended up in the basement of respondent’s home, where
Traficant removed $16,000 in cash from some 30 envelopes. Respondent
recognized some of the envelopes as those that he had stuffed with cash to pay off
Traficant, while others were marked with Traficant’s initials in what respondent
knew to be DiBlasio’s handwriting. Traficant gave the money to respondent, and
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respondent took it. On Traficant’s direction and in his presence, respondent
afterward burned the envelopes in a concrete washtub with a butane torch.
{¶ 32} Respondent later returned to Traficant’s office, where Traficant
gave him an envelope with $2,500 in cash and some empty envelopes.
Respondent took the money and went home to burn the additional envelopes.
Before he had completely incinerated the envelopes, however, respondent put out
the fire. Finally, respondent decided that what he was doing was wrong.
{¶ 33} Respondent cooperated as a witness for the prosecution against
Traficant, and his testimony was instrumental in obtaining that conviction, as well
as DiBlasio’s eventual conviction for perjury. Moreover, respondent turned over
the partially burned envelopes and money to the FBI before the agency offered
him an agreement to proffer his story without incrimination. But as relator
cogently submits, any mitigating effect of respondent’s cooperation is decimated
by the timing of his cooperation and the obvious rationale for providing it.
{¶ 34} Respondent benefited for more than one year from paying
gratuities to Traficant and leasing him office space. Not until the investigative
noose began to tighten did respondent take action to stop the corruption, and only
then to save himself from possible criminal liability. He succeeded. For the
purpose of his testimony before the grand jury and trial, the prosecution granted
respondent use immunity at a subsequent criminal proceeding. Thus, as long as
respondent did not perjure himself, he would avoid prosecution.
{¶ 35} For these reasons, respondent’s cooperation with federal
authorities is of little mitigating effect. We also reject the finding that
respondent’s illicit association with Traficant represented an isolated incident
rather than a pattern of misconduct or multiple offenses. Respondent and
Traficant deliberated the consideration respondent would pay for his job and then
executed the payment plan for more than one year. Respondent also concealed
his preparation of the quitclaim deed for Traficant. Moreover, these acts clearly
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constitute the multi-step course of conduct for which an actual suspension must be
imposed. Disciplinary Counsel v. Shaffer, 98 Ohio St. 3d 342, 2003-Ohio-1008,
785 N.E.2d 429.
{¶ 36} We do, however, accept all the other factors listed by the panel and
board as mitigating. Thus, having found that respondent violated DR 1-102(A)(4)
and (6) relative to the gratuities, which included the kickbacks, the lease of office
space, and preparing the misleading quitclaim deed, we temper our disposition
and do not disbar respondent. Respondent is instead indefinitely suspended from
the practice of law. Costs are taxed to respondent.
Judgment accordingly.
MOYER, C.J., RESNICK, F.E. SWEENEY, PFEIFER, LUNDBERG STRATTON,
O’CONNOR and O’DONNELL, JJ., concur.
__________________
Ronald E. Slipski and David C. Comstock Jr., for relator.
Kegler, Brown, Ritter & Hill Co., L.P.A., Geoffrey Stern, and Christopher
J. Weber, for respondent.
_____________________
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