Disciplinary Counsel v. McAuliffe , 121 Ohio St. 3d 315 ( 2009 )

[Cite as Disciplinary Counsel v. McAuliffe, 121 Ohio St.3d 315, 2009-Ohio-1151.]
DISCIPLINARY COUNSEL v. MCAULIFFE.
[Cite as Disciplinary Counsel v. McAuliffe,
121 Ohio St.3d 315, 2009-Ohio-1151.]
Judges — Misconduct — Federal convictions for crimes involving arson, fraud,
and conspiracy — Respondent disbarred.
(No. 2008-1200 — Submitted August 26, 2008 — Decided March 19, 2009.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 05-037.
__________________
Per Curiam.
{¶1} Respondent, Don S. McAuliffe, Attorney Registration No.
0014629, formerly of Pickerington, Ohio, was admitted to the practice of law in
Ohio in 1972 and became a judge of the Fairfield County Municipal Court in
1997. The Board of Commissioners on Grievances and Discipline found that
McAuliffe violated the Code of Professional Responsibility and the Code of
Judicial Conduct by burning down his house in order to defraud an insurance
company, committing several federal felonies in the process. The board
recommended McAuliffe’s permanent disbarment. McAuliffe objects to the
board’s report and recommendations. We overrule the objections and order that
McAuliffe be permanently disbarred.
The Criminal and Disciplinary Proceedings against McAuliffe
{¶2} In 2003, the Grand Jury for the United States District Court for the
Southern District of Ohio indicted McAuliffe on two counts of mail fraud, one
count of use of fire to commit mail fraud, one count of conspiracy to use fire to
commit mail fraud, and two counts of money laundering. McAuliffe was found
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guilty of these offenses on February 13, 2004, and was sentenced on December
16, 2004.
{¶3} On January 24, 2005, we suspended McAuliffe’s license to
practice law pursuant to Gov.Bar R. V(5)(A)(4) (automatic interim suspension for
felony conviction). In re McAuliffe, 104 Ohio St.3d 1455, 2005-Ohio-235, 821
N.E.2d 572.
{¶4} Later that year, relator, Disciplinary Counsel, filed a complaint
charging McAuliffe with violating two canons of the Code of Judicial Conduct
and four provisions of the Code of Professional Responsibility. However, the
parties notified the Board of Commissioners on Grievances and Discipline that
McAuliffe had filed an appeal of his convictions. Pursuant to Gov.Bar R.
V(5)(C), the board stayed the disciplinary proceeding pending the conclusion of
the criminal appeal.
{¶5} After successfully appealing his sentence, McAuliffe was
resentenced on December 20, 2005. As part of his sentence, McAuliffe was fined
$150,000 and ordered to make restitution to the Grange Insurance Company in the
amount of $235,000, plus interest. McAuliffe paid both amounts.
{¶6} McAuliffe also appealed the judgment of conviction, but to no
avail; the United States Court of Appeals for the Sixth Circuit affirmed his
convictions and sentences on June 22, 2007. United States v. McAuliffe (C.A.6,
2007), 490 F.3d 526. The United States Supreme Court denied McAuliffe’s
petition for certiorari on October 15, 2007, concluding the appellate review of
McAuliffe’s case. See McAulife [sic] v. United States (2007), __ U.S. __, 128
S.Ct. 442, 169 L.Ed.2d 309.
{¶7} After the board lifted its stay of this disciplinary matter, a panel of
the Board of Commissioners on Grievances and Discipline held a hearing on
April 10, 2008. McAuliffe stipulated that he had been convicted of the crimes
charged in the federal indictment, even while claiming to be innocent of those
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charges. He specifically declined to present any mitigating evidence at the
hearing, on the ground that presenting such evidence would be inconsistent with
his protestations of innocence.
{¶8} At the hearing, McAuliffe, through counsel, informed the panel
that he intended to collaterally attack his convictions by filing a motion to vacate,
set aside, or correct his sentence under Section 2255, Title 28, U.S.Code, a
provision that authorizes procedures and remedies for attacks on criminal
sentences. (After the hearing, McAuliffe did in fact file such a motion, pro se, in
the federal district court.) McAuliffe asked the panel to stay the proceeding and
continue his indefinite suspension “until the conclusion of all his legal
proceedings, including the [Section 2255] motion.” In the alternative, he asked
that the panel “certify” questions of law to this court concerning whether a judge
convicted of a felony could receive a punishment other than disbarment.
{¶9} Despite McAuliffe’s refusal to offer evidence of mitigation, the
panel found that mitigating factors did exist. 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.”). The panel
cited McAuliffe’s lack of a record of previous discipline, the fact that he made
restitution to his victim, and his cooperation in the disciplinary proceedings.
BCGD Proc.Reg. 10(B)(2)(a), (c), and (d).
{¶10} However, the panel also noted that McAuliffe had acted with a
dishonest and selfish motive, had committed multiple offenses, has refused to
acknowledge the wrongfulness of his conduct, and had made restitution only
when ordered to do so. See BCGD Proc.Reg. 10(B)(1)(b), (d), and (g). Finally,
the panel noted that McAuliffe was a judge when he committed his crimes and
thus brought disrepute to the judicial system and breached the public trust. See
Canons 2 and 4 of the Code of Judicial Conduct.
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{¶11} The panel found that McAuliffe had violated DR 1-102(A)(3)
(prohibiting illegal conduct involving moral turpitude), 1-102(A)(4) (prohibiting
conduct involving dishonesty, fraud, deceit, or misrepresentation), 1-102(A)(5)
(prohibiting conduct prejudicial to the administration of justice), and 1-102(A)(6)
(prohibiting conduct that adversely reflects on a lawyer’s fitness to practice law)
and two provisions of the Code of Judicial Conduct: Canon 2 (a judge shall
comply with the law at all times) and Canon 4 (a judge shall avoid impropriety).
The panel recommended that McAuliffe be disbarred, and the board adopted the
panel’s findings of fact, conclusions of law, and recommendation.
{¶12} McAuliffe has filed objections to the board’s report and
recommendations. His first objection challenges the panel’s decision not to stay
the disciplinary proceedings pending the disposition of his Section 2255 motion.
His second challenges the panel’s denial of his request to “certify” questions of
law to this court. His third challenges the recommendation of disbarment.
McAuliffe’s First Objection
{¶13} In his first objection, McAuliffe contends that the board erred by
denying his request that the disciplinary proceeding be stayed until the conclusion
of his Section 2255 proceeding collaterally attacking his conviction.
{¶14} Gov.Bar R. V(5)(C) provides: “Any disciplinary proceeding
instituted against a justice, judge, or an attorney based on a conviction of an
offense * * * shall not be brought to hearing until all appeals from the conviction
* * * are concluded.” (Emphasis added.)
{¶15} In Bar Assn. of Greater Cleveland v. Steele (1981), 65 Ohio St.2d
1, 19 O.O.3d 120, 417 N.E.2d 104, we applied the virtually identical language of
former Gov.R. V(8)(c).1 The respondent in Steele was convicted of first-degree
1. “Any disciplinary proceeding instituted against an attorney based upon a conviction
of an offense shall not be brought to hearing until all appeals from the conviction are concluded.”
Former Gov.R. V(8)(c), quoted in Steele, 65 Ohio St.2d at 2, 19 O.O.3d 120, 417 N.E.2d 104.
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murder. After the respondent exhausted his appeals, the board held a hearing in
his case and recommended his disbarment. The respondent argued that the
disciplinary proceeding should have been deferred until final determination of his
then pending federal habeas corpus petition.
{¶16} We rejected this argument as inconsistent with the language of the
applicable rule: “The board complied with the foregoing rule by staying the
instant proceeding until respondent’s appeals were exhausted. A proceeding in
habeas corpus is not an appeal from a criminal conviction; rather, it is a distinct
collateral attack upon the petitioner’s continued confinement.” Id., 65 Ohio St.2d
at 2, 19 O.O.3d 120, 417 N.E.2d 104.
{¶17} McAuliffe’s proceeding pursuant to Section 2255, although not a
habeas corpus action, is still a collateral attack on his conviction. See, e.g.,
United States v. Addonizio (1979), 442 U.S. 178, 184, 99 S.Ct. 2235, 60 L.Ed.2d
805; Danforth v. Minnesota (2008), __ U.S. __, 128 S.Ct. 1029, 1041, 169
L.Ed.2d 859, fn.16. Hence, like the habeas proceeding in Steele, the Section 2255
proceeding is not an appeal within the meaning of Gov.Bar R. V(5)(C). Here, as
in Steele, “[t]he board complied with the * * * rule by staying the instant
proceeding until respondent’s appeals were exhausted.” Steele, 65 Ohio St.2d at
2, 19 O.O.3d 120, 417 N.E.2d 104. Under the rule, the board had no obligation to
delay McAuliffe’s hearing yet further, pending the conclusion of the Section 2255
proceeding.
McAuliffe’s Second Objection
{¶18} McAuliffe’s second objection is that the panel erred by denying his
request that it “certify” questions of law to this court. Essentially, McAuliffe
sought to raise the issue whether, in light of our decision in Disciplinary Counsel
v. Gallagher (1998), 82 Ohio St.3d 51, 693 N.E.2d 1078, a judge who has been
convicted of a felony involving moral turpitude may receive any punishment
other than disbarment.
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{¶19} Curiously, McAuliffe contends that Gallagher requires disbarment
in such circumstances. His complaint appears to be that because Gallagher
clearly requires his disbarment, there was no point in his presenting mitigating
evidence to the panel.
{¶20} Unfortunately, McAuliffe fails to take the next step and explain
how this set of premises leads to the conclusion he asks us to reach: that the board
should have suspended its proceedings in order to seek a ruling from this court as
to whether the panel could recommend an indefinite suspension despite
Gallagher. If, as McAuliffe contends, Gallagher clearly requires his disbarment,
there was surely no reason for the board to “certify” any questions about it to us,
even assuming that the Disciplinary Rules authorize such a procedure.
{¶21} In any event, McAuliffe cites no authority for the proposition that a
panel may (let alone must) request an advisory opinion from this court during a
disciplinary proceeding. The way to raise an issue of law in a disciplinary
proceeding is not to “certify” it to this court in midproceeding, but simply to raise
it – first to the panel, then to the board, and finally to us. Thus, the panel
committed no error by denying McAuliffe’s request, and we overrule his second
objection.
Disciplinary Violations
{¶22} Based on the record, we find that McAuliffe violated DR 1-
102(A)(3), 1-102(A)(4), 1-102(A)(5), and 1-102(A)(6) and Canons 2 and 4 of the
Code of Judicial Conduct.
{¶23} Although McAuliffe continues to deny having committed the
crimes the jury found him guilty of, “a disciplinary proceeding is not an
appropriate forum in which to collaterally attack a criminal conviction.” Bar
Assn. of Greater Cleveland v. Chvosta (1980), 62 Ohio St.2d 429, 430, 16 O.O.3d
452, 406 N.E.2d 524. The record of this case contains judgment entries reflecting
McAuliffe’s federal criminal convictions, and McAuliffe has stipulated both to
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the fact of his convictions and to the authenticity of the judgment entries. The
judgment entries of conviction are conclusive evidence that McAuliffe committed
the federal crimes in question. Disciplinary Counsel v. Woods (1986), 28 Ohio
St.3d 245, 247, 28 OBR 325, 503 N.E.2d 746.
{¶24} “[P]roof of a criminal conviction is generally not conclusive of the
issue of moral turpitude, which requires consideration of all the circumstances
surrounding the illegal conduct.” Disciplinary Counsel v. Burkhart (1996), 75
Ohio St.3d 188, 191, 661 N.E.2d 1062.
{¶25} The crimes McAuliffe was convicted of involved arson, fraud, and
conspiracy. Evidence at McAuliffe’s federal trial showed that McAuliffe
conspired with a business partner to burn down McAuliffe’s house so that
McAuliffe could collect the insurance proceeds. McAuliffe tried twice to have
the house set on fire and succeeded on the second try. He then signed and
submitted to the insurance company claim forms that contained false statements.
On the claim forms, McAuliffe stated that the house was not destroyed “ ‘because
of any act or design on [his] part’ ”; that “ ‘[n]othing ha[d] been done to conceal
or misrepresent any material facts concerning this claim, nor to deceive the
company’ ”; and that he did not know the cause and origin of the fire. McAuliffe
and the company ultimately settled his claim for $235,000, which McAuliffe
spent. Pursuant to the settlement, McAuliffe signed and submitted another form
falsely stating that he did not know the origin of the fire. McAuliffe, 490 F.3d at
530, 537-538.
{¶26} On these facts, we agree that McAuliffe’s crimes involved moral
turpitude. His greed and mendacity manifest the “lack of social conscience and
depravity beyond any established criminal intent,” Burkhart, 75 Ohio St.3d at
191, 661 N.E.2d 1062, that establishes moral turpitude.
Sanction
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{¶27} Finally, we consider the appropriate sanction for the disciplinary
violations in this case. McAuliffe objects to the board’s recommendation of
disbarment and requests that we impose an indefinite suspension instead.
However, he presents no explanation as to why he deserves an indefinite
suspension.
{¶28} We have considered the mitigating factors identified by the board.
However, given our finding that McAuliffe’s conduct involved moral turpitude,
we find our words in Gallagher apposite here:
{¶29} “Mitigating factors have little relevance * * * when judges engage
in illegal conduct involving moral turpitude. * * * When a judge’s felonious
conduct brings disrepute to the judicial system, the institution is irreparably
harmed. * * * By this sanction, we aim to protect both the public and the integrity
of the judicial system itself. Mitigating factors relevant to this individual attorney
pale when he is viewed in his institutional role as a judge. We, therefore, find that
respondent deserves the full measure of our disciplinary authority.” Gallagher,
82 Ohio St.3d at 53, 693 N.E.2d 1078.
{¶30} We adopt the findings and conclusions of the board. Respondent is
hereby permanently disbarred from the practice of law in Ohio. Costs are taxed to
respondent.
Judgment accordingly.
MOYER, C.J., and PFEIFER, LUNDBERG STRATTON, O’CONNOR,
O’DONNELL, LANZINGER, and CUPP, JJ., concur.
__________________
Jonathan E. Coughlan, Disciplinary Counsel, and Lori J. Brown, First
Assistant Disciplinary Counsel, for relator.
David J. Graeff, for respondent.
______________________
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