Mahoning County Bar Association v. Atway. , 152 Ohio St. 3d 513 ( 2018 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Mahoning Cty. Bar Assn. v. Atway, Slip Opinion No. 2018-Ohio-10.]
NOTICE
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South Front Street, Columbus, Ohio 43215, of any typographical or other
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SLIP OPINION NO. 2018-OHIO-10
MAHONING COUNTY BAR ASSOCIATION v. ATWAY.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Mahoning Cty. Bar Assn. v. Atway, Slip Opinion No.
2018-Ohio-10.]
Attorneys—Misconduct—Felony conviction for conspiring to prevent another
person from freely exercising a legal right—Representing a client using
means that have no other purpose than to embarrass or harass a third
person—Committing illegal act reflecting adversely on lawyer’s honesty or
trustworthiness—Engaging in conduct prejudicial to administration of
justice—Two-year suspension with no credit for time served.
(No. 2017-1082—Submitted September 13, 2017—Decided January 3, 2018.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2016-064.
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SUPREME COURT OF OHIO
Per Curiam.
{¶ 1} Respondent, Neal Ghaleb Atway, of Youngstown, Ohio, Attorney
Registration No. 0059252, was admitted to the practice of law in Ohio in 1992. In
April 2016, we suspended his license on an interim basis after receiving notice that
he had been convicted of a felony. In re Atway, 146 Ohio St. 3d 1216, 2016-Ohio-
1452, 51 N.E.3d 648. In December 2016, relator, Mahoning County Bar
Association, charged him with violating several professional-conduct rules as a
result of his conviction. After a hearing, the Board of Professional Conduct found
that Atway engaged in most of the charged misconduct and recommended that we
suspend him for two years, with credit for time served under the interim felony
suspension. Neither party has objected to the board’s recommendation.
{¶ 2} Upon our review of the record, we adopt the board’s findings of
misconduct and agree that a two-year suspension is appropriate in this case.
However, we decline to grant credit for time served under the interim felony
suspension.
Misconduct
{¶ 3} This matter involves Atway’s 2012 representation of Charles Muth.
In early 2012, state authorities investigated Muth for allegedly asking an associate
to fire gunshots into what Muth believed was the home of Mohd Rawhneh. During
the state’s investigation of the shooting, police discovered a large marijuana-
growing operation in Muth’s home, which resulted in federal authorities
commencing a separate investigation of him. Atway agreed to represent Muth in
the federal matter, and Atway’s law partner, Scott Cochran, agreed to represent
Muth in the state court proceeding.1
{¶ 4} By June 2012, Atway had negotiated a plea agreement in the federal
matter. At his disciplinary hearing, Atway testified that although he had negotiated
1
Relator separately charged Cochran with professional misconduct relating to his representation
of Muth. See __ Ohio St.3d __, 2018-Ohio-4, __ N.E.3d __.
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January Term, 2018
Muth’s mandatory five-year prison term down to a six-month sentence, Muth
requested that Atway find a way for him to avoid any time in prison. Atway then
approached the government’s attorney, who indicated that Muth could potentially
avoid prison by proving that his life was threatened for cooperating with authorities
or by providing incriminating evidence about either public corruption or a lawyer.
At the time, Atway believed that the government’s attorney wanted Muth to
cooperate against a local attorney who the government suspected was involved in
Muth’s marijuana operation. Atway relayed this information to his client.
{¶ 5} According to Atway, Muth had also asked him to approach Rawhneh
about entering into a monetary settlement with Muth, which Muth hoped would
prevent Rawhneh from testifying against him at his sentencing hearings. Atway
testified that he had repeatedly told Muth that they could not prevent Rawhneh from
appearing at Muth’s sentencing hearings but Muth had nonetheless requested that
Atway attempt a settlement.
{¶ 6} Unbeknownst to Atway, Muth had also contacted the FBI and alleged
that Atway and Rawhneh were attempting to extort money from him. As a result,
the FBI began recording communications between Atway and Muth and,
separately, Atway and Rawhneh. According to Atway, the FBI recorded dozens of
his communications with both his client and Rawhneh.
{¶ 7} In November 2012, Atway learned that he was under FBI
investigation, and in 2014, the federal government charged him with violating the
Hobbs Act, obstruction of justice, making a false statement to law enforcement, and
two other offenses. Atway pled not guilty to all charges. After a five-week trial in
February and March 2015, the judge declared a mistrial due to juror misconduct.
The judge later acquitted Atway on two counts, and the government indicated its
intent to retry him on the remaining charges. By October 2015, however, Atway
and the government reached an agreement: Atway would plead guilty to a new
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SUPREME COURT OF OHIO
charge of violating 18 U.S.C. 241, a class C felony, and the government would
dismiss all charges in the original indictment.
{¶ 8} Under 18 U.S.C. 241, persons are prohibited from conspiring with
others to injure, oppress, threaten, or intimidate any person in the free exercise and
enjoyment of a legal right. Atway admitted that he had violated the statute by
entering into a conspiracy to deprive Muth of his right to effective assistance of
counsel. Specifically, Atway admitted that he had lied to Muth about his
interactions and communications with Rawhneh. Atway also acknowledged that
he made vulgar and disparaging comments in his communications with Rawhneh
while discussing the potential settlement. At his January 2016 sentencing, the judge
fined Atway $2,000 and placed him on probation for three years, with four months
under house arrest. Atway paid the fine and served the house arrest, and in March
2017, the court terminated Atway’s probation early for good behavior.
{¶ 9} Based on Atway’s federal conviction, the parties stipulated and the
board found that he had violated Prof.Cond.R. 4.4 (prohibiting a lawyer, while
representing a client, from using means that have no substantial purpose other than
to embarrass, harass, delay, or burden a third person), 8.4(b) (prohibiting a lawyer
from committing an illegal act that reflects adversely on the lawyer’s honesty or
trustworthiness), and 8.4(d) (prohibiting a lawyer from engaging in conduct that is
prejudicial to the administration of justice).
{¶ 10} We accept the stipulated findings of misconduct.
Sanction
{¶ 11} When imposing sanctions for attorney misconduct, we consider
several 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.
Aggravating and mitigating factors
{¶ 12} The board did not find any aggravating factors in this case.
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January Term, 2018
{¶ 13} In mitigation, the board found that Atway has no prior disciplinary
record, he lacked a dishonest or selfish motive, he made full and free disclosures to
relator and the board, and criminal sanctions have been imposed for his misconduct.
See Gov.Bar R. V(13)(C)(1), (2), (4), and (6). The board also determined that
Atway submitted evidence demonstrating good character and an excellent
reputation in the Youngstown legal community, noting that two Assistant United
States Attorneys testified on Atway’s behalf in his criminal trial, even though their
associates were prosecuting the case against Atway. See Gov.Bar R. V(13)(C)(5).
In addition, the board noted that Atway’s conduct did not harm Muth, who received
only a one-month reduction in his prison sentence for cooperating with authorities
against Atway. The parties also stipulated—and the board agreed—that restitution
should not be an issue in this proceeding, because Muth has filed a separate civil
lawsuit against Atway.
Applicable precedent
{¶ 14} To support its recommended sanction, the board reviewed a number
of cases involving attorneys whose misconduct resulted in felony convictions. For
example, the board cited Disciplinary Counsel v. Cohen, 142 Ohio St. 3d 471, 2015-
Ohio-2020, 32 N.E.3d 455, in which an attorney representing a criminal defendant
paid money to a prosecution witness and talked to the witness about traveling out
of state. The attorney later pled guilty to attempted tampering with evidence and
attempted obstruction of justice, and we indefinitely suspended him, without credit
for time served under his interim felony suspension.
{¶ 15} The board also cited Disciplinary Counsel v. Doumbas, 149 Ohio
St.3d 628, 2017-Ohio-550, 76 N.E.3d 1185, in which an attorney was found
complicit in his associates’ efforts to bribe a client’s victims into supporting a more
lenient sentence for the client. Based on the attorney’s bribery conviction, we
indefinitely suspended him but granted credit for time served under the interim
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SUPREME COURT OF OHIO
felony suspension, which we had imposed over three years before our final
disciplinary order.
{¶ 16} On the lower end of sanctions, the board reviewed Disciplinary
Counsel v. Pappas, 141 Ohio St. 3d 1, 2014-Ohio-3676, 21 N.E.3d 260, in which
an attorney made multiple false statements—including to a court, a federal grand
jury, and disciplinary authorities—in an attempt to protect a long-time friend. After
the attorney was convicted of a felony for lying to federal authorities, we suspended
him for two years, with no credit for time served under his interim felony
suspension. The board also cited Disciplinary Counsel v. Mahin, 146 Ohio St. 3d
312, 2016-Ohio-3336, 55 N.E.3d 1108, in which an attorney misappropriated funds
from his former law firm and was later convicted of fifth-degree-felony theft.
Based on the parties’ consent-to-discipline agreement, we suspended him for two
years, with the second year conditionally stayed, and granted him credit for time
served under his felony suspension.
{¶ 17} The board concluded that Atway’s misconduct—which it
characterized as “essentially lying to his client”—was less egregious than the
criminal conduct in the above-cited cases. The board also described Atway’s
behavior as “a one-time, out of character mistake” by a well-respected member of
the local bar and found that his criminal conduct was the result of “highly unusual
facts.” Based on Atway’s testimony, the parties’ stipulations, and the mitigating
evidence, the board ultimately recommended a two-year suspension, with credit for
time served under Atway’s interim felony suspension.
{¶ 18} We agree with the board that this case presents an unusual set of
facts and that Atway’s conduct was less serious than the criminal conduct in some
of the cases cited above. We also agree that a two-year suspension is the
appropriate sanction in this case, especially given the presence of several mitigating
factors and the absence of any aggravating factors. However, Atway pled guilty to
a felony for entering into a conspiracy to deprive a client of his right to effective
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January Term, 2018
assistance of counsel. “Few infractions impugn the integrity of the legal profession
more than an attorney’s criminal acts interfering with the fair administration of
justice.” Cohen, 142 Ohio St. 3d 471, 2015-Ohio-471, 32 N.E.3d 455, ¶ 8. Given
the nature of Atway’s conviction, we find no compelling reason to grant credit for
time served under the interim felony suspension.
Conclusion
{¶ 19} For the reasons explained above, Neal Ghaleb Atway is suspended
from the practice of law in Ohio for two years, with no credit for time served under
his interim suspension. Costs are taxed to Atway.
Judgment accordingly.
O’CONNOR, C.J., and O’DONNELL, KENNEDY, and FISCHER, JJ., concur.
FRENCH, O’NEILL, and DEWINE, JJ., dissent, and would grant credit for time
served under interim suspension.
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David Comstock Jr. and J. Michael Thompson, Bar Counsel, for relator.
John B. Juhasz; and Maro & Schoenike Co. and Lynn Maro, for respondent.
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