Disciplinary Counsel v. Polizzi (Slip Opinion) , 2021 Ohio 1136 ( 2021 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Polizzi, Slip Opinion No. 2021-Ohio-1136.]
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. 2021-OHIO-1136DISCIPLINARY COUNSEL v. POLIZZI.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Disciplinary Counsel v. Polizzi, Slip Opinion No.
2021-Ohio-1136.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct—Sex
offenses committed prior to becoming attorney—Tier III sex offender—
Permanent disbarment.
(No. 2020-0740—Submitted January 12, 2021—Decided April 7, 2021.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2019-014.
______________
Per Curiam.
{¶ 1} Respondent, Anthony John Polizzi Jr., formerly of North Royalton,
Ohio, Attorney Registration No. 0090170, was admitted to the practice of law in
Ohio in 2013. On June 7, 2018, we suspended Polizzi’s license on an interim
basis following his convictions on multiple felony counts of gross sexual
imposition and sexual battery. See In re Polizzi, 154 Ohio St.3d 1206, 2018-
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Ohio-2181, 112 N.E.3d 910. The convictions arose from Polizzi’s inappropriate
sexual relationships with two minors while he served as a teacher in their school.
The crimes occurred before he was admitted to the practice of law.
{¶ 2} In a March 12, 2019 complaint, relator, disciplinary counsel, alleged
that Polizzi’s criminal conduct violated Prof.Cond.R. 8.4(b) (prohibiting a lawyer
from committing an illegal act that adversely reflects on the lawyer’s honesty or
trustworthiness) and that his conduct was sufficiently egregious to constitute a
separate violation of Prof.Cond.R. 8.4(h) (prohibiting a lawyer from engaging in
conduct that adversely reflects on the lawyer’s fitness to practice law). The
parties submitted stipulations of fact, misconduct, and aggravating and mitigating
factors but did not agree as to the appropriate sanction. Based on those
stipulations and the evidence presented at a hearing before a three-member panel
of the Board of Professional Conduct, the board issued a report recommending
that Polizzi be permanently disbarred for committing the charged misconduct.
Polizzi objects to the recommended sanction, arguing that the board improperly
weighed the relevant aggravating and mitigating factors in this case and that our
precedent supports the imposition of an indefinite suspension for his misconduct.
{¶ 3} For the reasons that follow, we adopt the board’s findings of
misconduct, overrule Polizzi’s objections, and permanently disbar Polizzi from
the practice of law in Ohio.
Misconduct
{¶ 4} From August 2006 until January 2010, Polizzi was employed by
Cornerstone Christian Academy, where he taught high school history and middle
school English, served as a mock-trial advisor and class advisor, and coached
middle school cross country. In July 2017, the Lake County Grand Jury indicted
Polizzi on one count of gross sexual imposition and 24 counts of sexual battery
for conduct that allegedly occurred with a student (“Victim 1”) in January and
February 2010. A second indictment, issued in December 2017, charged Polizzi
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with 33 counts of gross sexual imposition, 22 counts of sexual battery, and one
count of attempted sexual battery for conduct that allegedly occurred with a
second student (“Victim 2”) between October 2007 and June 2008.
{¶ 5} On March 28, 2018, Polizzi pleaded guilty to one count of gross
sexual imposition and three counts of sexual battery with respect to each victim.
Polizzi admitted that in January 2010 he engaged in gross sexual imposition by
touching Victim 1 on the thigh and compelling her to submit by force or threat of
force. He also admitted that in early 2010 he committed three acts of sexual
battery, by engaging in digital penetration, cunnilingus, and fellatio with
Victim 1. Polizzi admitted that between October 2007 and June 2008, he engaged
in gross sexual imposition by touching Victim 2’s clothed genital area and
causing her to have similar sexual contact with him, and he further admitted that
he had compelled the victim to submit by force or threat of force. He also
admitted that he committed three acts of sexual battery between March and June
2008 by digitally penetrating Victim 2. Polizzi admitted that at the time of these
offenses, Victims 1 and 2 were minors enrolled at the school at which he was
employed as a teacher, coach, or other person in authority.
{¶ 6} The trial court accepted Polizzi’s plea and dismissed the remaining
counts of the indictment. In May 2018, Polizzi was sentenced to an aggregate
term of 396 months (33 years) in prison. The court also found Polizzi to be a Tier
III sex offender, which will require him to comply with certain sex-offender-
registration requirements every 90 days for the rest of his life. See R.C.
2950.01(G)(1)(a) and (b), 2950.06(B)(3), and 2950.07(B)(1).
{¶ 7} Polizzi appealed his sentence to the Court of Appeals for the
Eleventh District. On June 24, 2019, the appellate court vacated his sentence and
remanded the matter for resentencing consistent with its opinion. State v. Polizzi,
11th Dist. Lake Nos. 2018-L-063 and 2018-L-064, 2019-Ohio-2505, appeal not
accepted, 157 Ohio St.3d 1442, 2019-Ohio-4211, 132 N.E.3d 708. On March 2,
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2020, the parties to this disciplinary case supplemented the record with Stipulated
Exhibit 15, which contains copies of the trial court’s February 4, 2020
resentencing entries and Polizzi’s corresponding notices of appeal.1 At the
resentencing hearing, the trial court sentenced Polizzi to an aggregate term of 358
months (29 years, 10 months) in prison.
{¶ 8} During his disciplinary hearing, Polizzi testified that Victim 1 and
Victim 2 had been students in his American History class and that he had coached
Victim 1’s mock-trial team. Polizzi had met privately at the school with Victim 2
around a dozen times, at her mother’s request, to help her with a personal family
matter. He testified that Victim 2 was 17 or 18 years old and still a student at the
school when he began having illegal sexual contact with her in April 2008 and
that he continued to engage in sexual conduct with her until October 2009.
{¶ 9} Polizzi testified that he had communicated with both victims by text
message, but he maintained that only one of those text messages, a text to
Victim 1, was sexually suggestive. He admitted that he had met and engaged in
sexual conduct with each victim at a park. After one such meeting with Victim 1
in January 2010, someone reported having seen Polizzi arrive at the school with
Victim 1. When confronted by the superintendent of the school, Polizzi admitted
that he had met with Victim 1, but he was not honest about his sexual relationship
with his students. Nonetheless, the superintendent informed Polizzi that his
contract would not be renewed.
{¶ 10} In August 2010, Polizzi began to attend the University of Akron
School of Law and work at the Cuyahoga County Prosecutor’s Office. He
graduated in December 2012 and took the February 2013 bar exam. Although he
1. Although Gov.Bar R. V(18)(C) states, “Any disciplinary proceeding instituted against a judicial
officer or an attorney based on a conviction of an offense or on default under a child support order
shall not be brought to hearing until all direct appeals from the conviction or proceedings directly
related to the default determination are concluded,” Polizzi has not objected to the fact that his
disciplinary hearing occurred on December 9, 2019, approximately seven weeks before his
resentencing hearing and two months before he appealed his resentencing orders.
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disclosed the termination of his employment at Cornerstone Christian Academy
on his bar application, he did not disclose that he had engaged in sexual conduct
with his students.
{¶ 11} Polizzi also testified at his disciplinary hearing that he had
attempted to communicate with both victims after he was terminated and the
sexual conduct had ended. For example, Polizzi admitted that he sent Victim 1 an
e-mail in 2012. He initially testified that he could not remember what e-mail
address he had used to send the message, other than that it was a “fake” address.
After relator asked him if the e-mail address was “dirty, inappropriate, or
obscene,” he stated, “Yeah, it was something inappropriate. It was something
about wet.” Polizzi claimed that he could not remember the details of the
message, but he said that the e-mail did not identify him as the sender and it asked
Victim 1 if she remembered her experiences with him. But when relator pressed
him, Polizzi admitted that the question he had asked in the e-mail was “something
vulgar.”
{¶ 12} Polizzi testified that Victim 1 had appeared at his house one day in
2012 and that he had told her that he did not want to see her again. He claimed
that he did not respond when Victim 1 sent him a text message the next year,
because he realized he had “messed up” and he wanted to move on with his life.
He recalled that he had last seen Victim 1 in 2015, when she confronted him
while he was having dinner with his wife at a restaurant where Victim 1 worked.
He stated that Victim 1 had left a message for him at his law office in 2017 but
that he never responded.
{¶ 13} Polizzi also testified that he had attempted to communicate with
Victim 2 for several years after the sexual abuse stopped. He admitted that he had
sent her an e-mail to wish her a happy birthday, said hello to her at church, made
a U-turn to confirm that he had seen her drive by, and volunteered to help at a
church-sponsored event that she had organized for the prior two years—though he
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claimed that he withdrew that offer after learning that she was involved because
he had “no interest” in seeing her again.
{¶ 14} The board found that Polizzi had been slow to take responsibility
for his actions and that he had offered inconsistent testimony as to when he had
taken responsibility. For example, at his disciplinary hearing, Polizzi claimed that
during the summer of 2010, he recognized that he had done something very
wrong. But at his May 2018 sentencing hearing, Polizzi acknowledged that he
had initially denied responsibility for his crimes during an April 2018 presentence
evaluation with a court-appointed psychologist—purportedly because he wanted
to see if he could trust the psychologist before telling him everything. The board
also expressed concern that Polizzi engaged in victim-shaming when he claimed
that some of the victims’ statements at his May 2018 sentencing hearing were
“exaggerations” or “embellishments” and when he told a psychologist that he
wanted the victims to experience misery for what they were doing to him.
{¶ 15} The parties stipulated and the board found that Polizzi’s illegal
conduct adversely reflected on his honesty and trustworthiness, in violation of
Prof.Cond.R. 8.4(b), and that the conduct was sufficiently egregious to warrant a
separate finding that it adversely reflected on his fitness to practice law, in
violation of Prof.Cond.R. 8.4(h), see Disciplinary Counsel v. Bricker, 137 Ohio
St.3d 35, 2013-Ohio-3998, 997 N.E.2d 500, ¶ 21. We adopt these findings of
misconduct.
Recommended Sanction
{¶ 16} 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.
{¶ 17} As aggravating factors, the parties stipulated that Polizzi acted with
a dishonest or selfish motive, engaged in a pattern of misconduct, committed
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multiple offenses, and caused harm to vulnerable victims. See Gov.Bar R.
V(13)(B)(2), (3), (4), and (8). The board accepted those stipulations and also
found that Polizzi’s failure to accept responsibility for his actions was an
aggravating factor. See Gov.Bar R. V(13)(B)(7). As for mitigating factors, the
parties stipulated and the board found that Polizzi has no prior disciplinary record,
fully cooperated in the disciplinary proceeding, and has had other sanctions
imposed for his misconduct—namely his criminal convictions and sentence and
the loss of his teaching license. See Gov.Bar R. V(13)(C)(1), (4), and (6).
{¶ 18} In considering the appropriate sanction for Polizzi’s misconduct,
the board noted that in Disciplinary Counsel v. Williams, 130 Ohio St.3d 341,
2011-Ohio-5163, 958 N.E.2d 555, a case in which the attorney had been
convicted of one count of kidnapping with a sexual motivation and two counts of
rape of a seven-year-old boy (the attorney’s nephew), we stated that permanent
disbarment is the only appropriate sanction for an attorney convicted of raping a
child. The board also considered multiple cases in which we indefinitely
suspended attorneys who had committed sexual offenses involving minors. See,
e.g., Disciplinary Counsel v. Grossman, 143 Ohio St.3d 302, 2015-Ohio-2340, 37
N.E.3d 155 (attorney had been convicted of one count of receipt of visual
depictions of child pornography; attorney also admitted that he had communicated
online with an undercover police officer who was posing as the father of an 11-
year-old girl and that they had discussed various sex acts involving the fictitious
girl before the attorney went to a prearranged location where he expected to meet
her); Disciplinary Counsel v. Ridenbaugh, 122 Ohio St.3d 583, 2009-Ohio-4091,
913 N.E.2d 433 (attorney had been convicted of three fourth-degree felony counts
of pandering sexually oriented matter involving a minor and one fifth-degree
felony count of illegal use of a minor in nudity-oriented material and had admitted
to surreptitiously recording his neighbors as they engaged in sexual activity).
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{¶ 19} In this case, however, the board identified four factors that weigh
against the imposition of an indefinite suspension and in favor of permanent
disbarment. First, the board found that Polizzi violated his position of trust and
authority as a teacher by committing abhorrent and illegal sexual offenses against
the minor students who had been entrusted to his care. Second, the board found
that even after his sexual crimes ended, Polizzi continued to abuse both of his
victims by engaging in inappropriate, and in at least one instance, obscene,
communications with them. In fact, the victim-impact statements at his
sentencing hearing demonstrate that his e-mails, texts, and in-person attempts to
communicate with his victims—even years after the physical abuse ceased—
caused them additional pain and trauma. Third, the board found that Polizzi’s
testimony and behavior demonstrate that he does not fully appreciate the
wrongfulness of his misconduct. Finally, the board found that Polizzi tried to
shame his victims by characterizing their descriptions of his criminal conduct as
“exaggerations” and stating that he wanted them to experience misery for the
harm they had caused him by reporting his crimes.
Polizzi’s Objections to the Recommended Sanction
{¶ 20} Polizzi objects to the board’s recommended sanction. He argues
that the board improperly found that he failed to accept responsibility for his
criminal conduct and then used that incorrect finding as an aggravating factor.
Instead, he argues, the board should have considered his expressed remorse and
acceptance of responsibility, and several other facts, as mitigating factors. Lastly,
Polizzi asserts that our precedent supports the imposition of an indefinite
suspension rather than permanent disbarment for his misconduct.
The Record Supports the Board’s Assessment of the Aggravating and Mitigating
Factors Present in the Case
{¶ 21} Polizzi claims that he has accepted responsibility for his
misconduct, arguing that he entered a guilty plea in his criminal case that resulted
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in the imposition of an almost 30-year prison sentence, he has repeatedly
apologized for his misconduct, and he regretted saying that he wanted his victims
to experience misery. He also asserts that the board unfairly held him to the
ethical standards of an attorney when it considered his repeated attempts to
communicate with his victims after his sexual conduct ceased but before he was
admitted to the bar. The record is clear, however, that Polizzi’s criminal
convictions alone form the basis of his stipulated violations of Prof.Cond.R.
8.4(b) and 8.4(h).
{¶ 22} Polizzi’s continued communication with his victims is just one of
many factors that demonstrate his ongoing lack of remorse and failure to accept
responsibility for his crimes. For example, as described above, at his disciplinary
hearing, Polizzi was unwilling or unable to admit the true nature of the e-mail that
he had sent to Victim 1 approximately eight years earlier. Although Polizzi now
asserts that his hesitance in responding to relator’s questions illustrates nothing
but shame, he actually attempted to convince the panel that he had e-mailed
Victim 1 only because he felt guilty and wanted “closure.” On further cross-
examination, however, he admitted that he had used a fake e-mail address, had not
disclosed his identity, and had asked Victim 1 at least one sexually explicit
question, so the e-mail is more properly characterized as an attempt to remind the
victim of—rather than apologize for—his past criminal conduct.
{¶ 23} In addition, the record demonstrates that Polizzi did not truly
acknowledge responsibility for his criminal conduct when he entered a guilty
plea. By pleading guilty to two counts of gross sexual imposition, he admitted
that he had purposely compelled both of his victims to submit to sexual contact by
force or threat of force. Yet at his sentencing hearing, Polizzi contradicted those
facts when he claimed that the sexual contact had been completely consensual.
{¶ 24} Nor did Polizzi plead guilty to spare his victims the pain of
recounting his abusive criminal conduct at trial. At his disciplinary hearing,
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Polizzi testified, “[I]n some ways, I felt that I was strong-armed into a plea
agreement because I was trying to avoid a painful trial for my family and also 405
years [in prison].” (Emphasis added.) He also offered some apologies, claimed to
accept responsibility for his conduct, and stated, “I regret * * * saying things were
consensual when, when you’re in a position of authority, they are not.” But even
though the disciplinary hearing took place a full ten years after he committed the
crimes and more than a year after he heard his victims’ emotional statements at
his sentencing hearing, Polizzi was unable to articulate to the panel any real
understanding of the harm that he had caused or express any real empathy for his
victims.
{¶ 25} Polizzi next asserts that the board failed to accord any weight to the
volunteer services he provided by giving legal advice at free legal clinics, by
teaching Sunday school, and by doing landscaping for his church. He also
contends that the board failed to consider the letters submitted by two former
clients attesting to his skilled legal representation and a letter from his wife
reporting that his criminal conduct was out of character and the product of
tremendous personal stress. Polizzi also urges us to consider six additional
character letters that he submitted with his objections to the board’s
recommendation. However, Polizzi’s community involvement and the letters
from his former clients, family members, and friends—even when combined with
the fact that other sanctions have been imposed for his criminal conduct—offer
little to counteract the significant aggravating factors present in this case.
{¶ 26} As we have observed, “it is of no consequence that the board’s
findings of fact are in contravention of [a] respondent’s or any other witness’s
testimony. ‘Where the evidence is in conflict, the trier of facts may determine
what should be accepted as the truth and what should be rejected as false.’ ”
Disciplinary Counsel v. Zingarelli, 89 Ohio St.3d 210, 217, 729 N.E.2d 1167(2000), quoting Cross v. Ledford, 161 Ohio St. 469, 478, 120 N.E.2d 118 (1954).
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Because the record in this case does not weigh heavily against the findings of the
panel, which were subsequently adopted by the board, regarding Polizzi’s failure
to accept full responsibility for his crimes, “we defer to the panel’s credibility
determinations, inasmuch as the panel members saw and heard [respondent’s
testimony] firsthand.” Cuyahoga Cty. Bar Assn. v. Wise, 108 Ohio St.3d 164,
2006-Ohio-550, 842 N.E.2d 35, ¶ 24.
Disbarment Is the Appropriate Sanction for Polizzi’s Misconduct
{¶ 27} We are not persuaded by Polizzi’s arguments that our precedent
supports the imposition of an indefinite suspension for the misconduct at issue in
this case.
{¶ 28} Polizzi cites multiple cases in which we indefinitely suspended
attorneys who had received, possessed, or pandered child pornography or sexually
oriented material involving a minor—some of whom had also arranged sexual
encounters with undercover law-enforcement officers posing as minors. See, e.g.,
Disciplinary Counsel v. Martyniuk, 150 Ohio St.3d 220, 2017-Ohio-4329, 80
N.E.3d 488 (attorney had been convicted of 20 fourth-degree felony counts of
pandering sexually oriented material involving a minor); Dayton Bar Assn. v.
Ballato, 143 Ohio St.3d 76, 2014-Ohio-5063, 34 N.E.3d 858 (attorney had been
convicted of one count of possessing child pornography); Dayton Bar Assn. v.
Greenberg, 135 Ohio St.3d 430, 2013-Ohio-1723, 988 N.E.2d 559 (attorney had
been convicted of one count of possessing child pornography and one count of
transferring obscene materials to minors for sending sexual videos of himself to
undercover officers posing as 12- and 13-year-old girls).
{¶ 29} We have also indefinitely suspended at least two attorneys who,
like Polizzi, had been convicted of crimes for engaging in sexual conduct with
teenage girls. In Disciplinary Counsel v. Wanner, 15 Ohio St.3d 319, 473 N.E.2d
829 (1984), an attorney had been convicted of one third-degree felony count of
sexual battery. During his disciplinary proceedings, Wanner stipulated that the
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conviction resulted from his twice engaging in sexual conduct with two 17-year-
old girls who were under his supervisory and disciplinary authority in the group
home where he was employed. In addition to Wanner’s cooperation in the
proceeding and his apparent desire to resolve his problems, seven attorneys
testified or wrote letters attesting that he was a competent, conscientious, and
ethical attorney and firmly recommending against permanent disbarment.
Similarly, in Disciplinary Counsel v. Pansiera, 77 Ohio St.3d 436, 674 N.E.2d
1373 (1997), we indefinitely suspended an attorney who had been convicted of
seven counts of corrupting a minor for engaging in sexual conduct with a child
between the ages of 13 and 16 whom he had befriended in the Alcoholics
Anonymous program. Although Pansiera had not had a lawyer-client relationship
with the child, we found that he had been in a position of dominance by virtue of
his seniority and status as a professional person and that the child had been in a
position of vulnerability as a participant in a substance-abuse rehabilitation
program.
{¶ 30} The most significant distinction between disciplinary cases
involving sexual misconduct that resulted in an indefinite suspension and those
that resulted in permanent disbarment is that—like Polizzi—the attorneys who
were disbarred were either convicted of gross sexual imposition or used force, the
threat of force, or extreme forms of coercion to compel their victims to submit to
their sexual demands. For example, we permanently disbarred an attorney who
had been convicted of one third-degree felony count of gross sexual imposition
and one third-degree misdemeanor count of sexual imposition. Cincinnati Bar
Assn. v. Lisner, 65 Ohio St.2d 62, 417 N.E.2d 1381 (1981). Similarly, we
disbarred an attorney who had, over the course of many months, solicited sex
from three legally and financially vulnerable female clients in exchange for
reduced legal fees and used force against one of those women in an attempt to
compel her to kiss him. Disciplinary Counsel v. Sturgeon, 111 Ohio St.3d 285,
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2006-Ohio-5708, 855 N.E.2d 1221. And in Disciplinary Counsel v. Ostheimer,
72 Ohio St.3d 304, 649 N.E.2d 1217 (1995), we permanently disbarred an
attorney who had been convicted of two counts of attempted felonious sexual
penetration and two counts of forgery after he fabricated court documents to
convince his adopted daughter that she had been placed in a probation program
and then used those documents to coerce her to submit to his sexual demands for
at least three years.
{¶ 31} In this case, for more than two years, Polizzi used his authority as a
teacher to compel two of his students to engage in sexual conduct with him and
threatened at least one victim with discipline or expulsion to keep her from
reporting his conduct. In pleading guilty to two counts of gross sexual
imposition, Polizzi also admitted that he had used force or the threat of force to
compel both victims to submit to his sexual demands. Not only did he harm these
young women and their families, he also betrayed the public’s trust in him as a
licensed teacher.
{¶ 32} Although Polizzi disclosed the termination of his teaching
employment on his bar-exam application, he did not disclose that he had had
sexual contact with two of his students. Had Polizzi disclosed that conduct or
been convicted before he sought admission to the bar, his application most
certainly would have been disapproved.
{¶ 33} In fact, in In re Application of Daubenmire, 137 Ohio St.3d 435,
2013-Ohio-4977, 999 N.E.2d 669, we disapproved an application to register as a
candidate for admission to the Ohio bar filed by an applicant who had been
convicted of one second-degree felony count of pandering obscenity involving a
minor for having viewed child pornography for approximately five years.
Although Daubenmire had complied with all the conditions of his criminal
sentence at the time of his application, presented significant evidence of his
rehabilitation, and fully disclosed his criminal conduct to his law school and this
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court, we expressed concern that admitting a person who is required to register as
a sex offender to the practice of law would adversely affect the public’s
perception of the profession as a whole. Id. at ¶ 8-11, 19. We determined that it
was in the best interest of the public and the profession that we disapprove
Daubenmire’s application—though we authorized him to reapply as a candidate
for the bar exam after he completed his ten-year sex-offender-registration
obligation. Id. at ¶ 19. In this case, however, Polizzi is a Tier III sex offender
with a lifetime reporting requirement.
{¶ 34} Having considered Polizzi’s reprehensible criminal sexual assault
of two of his high school students, the relevant aggravating and mitigating factors,
and the applicable precedent, we adopt the board’s findings of misconduct,
overrule Polizzi’s objections, and hold that permanent disbarment is necessary in
this case to protect the public, to preserve the integrity of the profession, and to
maintain public confidence in the legal profession as a whole. See, e.g.,
Disciplinary Counsel v. Calabrese, 143 Ohio St.3d 229, 2015-Ohio-2073, 36
N.E.3d 151, ¶ 18 (recognizing that although the primary purpose of disciplining
attorneys for misconduct is to protect the public, not to punish the offender, there
are some instances in which permanent disbarment is necessary to maintain public
confidence in the legal profession and preserve the integrity of the profession).
Conclusion
{¶ 35} Accordingly, Anthony John Polizzi Jr. is permanently disbarred
from the practice of law in Ohio. Costs are taxed to Polizzi.
Judgment accordingly.
O’CONNOR, C.J., and KENNEDY, FISCHER, and BRUNNER, JJ., concur.
DONNELLY, J., dissents, with an opinion joined by DEWINE and
STEWART, JJ.
_________________
DONNELLY, J., dissenting.
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{¶ 36} The court today permanently disbars respondent, Anthony John
Polizzi Jr., but not because of anything that Polizzi did or did not do as an
attorney. The court imposes this ultimate form of discipline for criminal offenses
that were committed three to five years before Polizzi became an attorney but
were not prosecuted until four years after he became an attorney. Because that
sanction is inconsistent with our precedent, I respectfully dissent.
{¶ 37} To be absolutely clear, when it is discovered that an attorney has
committed criminal acts, whether the conduct occurs after bar admission or
before, swift and severe consequences are necessary. Polizzi’s criminal conduct
indisputably predated his 2013 admission to the practice of law. In the only Ohio
case to which we have been directed where discipline was imposed for criminal
conduct that occurred prior to the attorney’s admission to the practice of law, this
court indefinitely suspended the attorney. See Disciplinary Counsel v. Clark, 40
Ohio St.3d 81, 531 N.E.2d 671 (1988).
{¶ 38} The facts of Clark are particularly noteworthy here. In that case,
the attorney, Jonathan Clark, had been involved in an international drug-
smuggling ring while he attended law school in Toledo. The leader of the ring
was arrested around the time Clark took the bar examination in 1984, but Clark
was not convicted of conspiring to sell, give, or distribute more than five pounds
of marijuana and tax evasion until two years after he was admitted to the practice
of law. In 1982, as part of the drug ring, Clark “helped unload approximately
11,500 pounds of marijuana from a boat” docked in Virginia, and prior to the
boat’s arrival, he “lived in a ‘safe house’ for approximately one month in order to
make the house look occupied and thus conceal the purpose for which it had been
rented—mainly to receive large deliveries of marijuana.” Id. at 81-82. Clark also
removed the inner workings of two newly purchased television sets and filled
them with money so that the money could be transported secretly. In 1983, Clark
held about $1,000,000 for the leader of the ring for about three weeks and
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prepared bundles of money to pay members of the ring. Clark then “placed
approximately $500,000 of the currency in gutted television sets and transported
the sets in a rented car to Florida so that they could be shipped to Colombia.” Id.
at 82. Clark received $60,000 for the efforts described above.
{¶ 39} Despite those facts, this court declined to follow the board’s
recommendation of permanent disbarment, holding that Clark had “not been
shown to be so lacking in character and fitness that he should be forever forbidden
from regaining his professional status.” Id. at 83. The court instead imposed an
indefinite suspension on Clark. Clark was reinstated to the practice of law five
years later. 66 Ohio St.3d 1223, 614 N.E.2d 758 (1993).
{¶ 40} In this case, the parties stipulated that Polizzi violated Prof.Cond.R.
8.4(b) (prohibiting a lawyer from committing an illegal act that adversely reflects
on the lawyer’s honesty or trustworthiness) and 8.4(h) (prohibiting a lawyer from
engaging in egregious conduct that adversely reflects on the lawyer’s fitness to
practice law). For me, the only issue in the case is whether permanent disbarment
is the appropriate sanction.
{¶ 41} “ ‘The primary purpose of the disciplinary process is to protect the
public from lawyers who are unworthy of the trust and confidence essential to the
attorney-client relationship and to allow us to ascertain the lawyer’s fitness to
practice law.’ ” Disciplinary Counsel v. Sarver, __ Ohio St.3d __, 2020-Ohio-
5478, __ N.E.3d __, ¶ 27, quoting Disciplinary Counsel v. Sabroff, 123 Ohio
St.3d 182, 2009-Ohio-4205, 915 N.E.2d 307, ¶ 20. “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.” Disciplinary Counsel v.
Piazza, 159 Ohio St.3d 150, 2020-Ohio-603, 149 N.E.3d 469, ¶ 16.
{¶ 42} This case does not concern ethical violations for Polizzi’s conduct
in his capacity as an attorney. Rather, the attorney misconduct here involves
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convictions for sex offenses that Polizzi committed before he became an attorney.
The issue here is whether that misconduct makes Polizzi wholly unfit to ever
again function as an attorney such that permanent disbarment is the appropriate
sanction.
{¶ 43} To be sure, this court has disbarred attorneys who engaged in
sexual misconduct. See, e.g., Disciplinary Counsel v. Williams, 130 Ohio St.3d
341, 2011-Ohio-5163, 958 N.E.2d 555 (attorney disbarred for convictions for two
counts of raping his seven-year-old nephew and one count of kidnapping him with
a sexual motivation, all first-degree felonies); Disciplinary Counsel v. Ostheimer,
72 Ohio St.3d 304, 649 N.E.2d 1217 (1995) (attorney disbarred for deceiving and
coercing his adopted teenage daughter into submitting to his sexual demands for
at least three years, culminating in the attorney’s conviction on multiple counts of
attempted felonious sexual penetration and forgery); Cincinnati Bar Assn. v.
Lisner, 65 Ohio St.2d 62, 417 N.E.2d 1381 (1981) (attorney disbarred after
pleading no contest and being convicted on felony charges of gross sexual
imposition and misdemeanor sexual imposition; attorney failed to file an answer
or appear for his disciplinary hearing); Disciplinary Counsel v. Sturgeon, 111
Ohio St.3d 285, 2006-Ohio-5708, 855 N.E.2d 1221 (attorney disbarred for
engaging in coercive sexual misconduct with his clients; court found that attorney
had preyed on women who were in vulnerable legal and financial circumstances
and used the attorney-client relationship to gratify his own sexual interests).
{¶ 44} In each of these cases, however, the crimes and/or sexual
misconduct occurred after the attorney was licensed to practice law. I can readily
understand imposing the most severe disciplinary sanction when the offender has
taken an oath to uphold the constitution and laws of this nation and state and the
ethical standards of the legal profession but thereafter engages in egregiously
predatory conduct that violates state laws and our profession’s ethical standards.
But that is not this case.
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{¶ 45} This court has chosen the less severe sanction of indefinite
suspension for equally reprehensible criminal acts, including predatory sexual acts
involving children. See Disciplinary Counsel v. Connors, 160 Ohio St.3d 338,
2020-Ohio-3339, 156 N.E.3d 895 (indefinite suspension imposed on attorney who
pleaded guilty to felony use of a minor in nudity-oriented material or performance
based on the recovery of more than 1,000 images of child pornography and
erotica involving prepubescent females from electronic devices at the attorney’s
home); Disciplinary Counsel v. Ridenbaugh, 122 Ohio St.3d 583, 2009-Ohio-
4091, 913 N.E.2d 443, ¶ 7, 12 (indefinite suspension imposed on attorney
convicted of pandering sexually oriented matters involving a minor and illegal use
of a minor in nudity-oriented material or performance: “In the case of the
voyeurism, [Ridenbaugh’s] fetishes led him to intrude into the most intimate
aspects of the lives of unsuspecting individuals, many of whom felt compelled to
relocate after [Ridenbaugh’s] activity was unveiled. And in the case of the child
pornography, [Ridenbaugh’s] viewing of minors for sexual gratification provides
direct financial and other support for an insidious subculture that victimizes the
most defenseless of our society”); Disciplinary Counsel v. Goldblatt, 118 Ohio
St.3d 310, 2008-Ohio-2458, 888 N.E.2d 1091 (indefinite suspension imposed on
attorney following felony convictions for compelling prostitution and possessing
criminal tools, which resulted from the attorney’s attempt to arrange a sexual
encounter with an underage victim).
{¶ 46} In Columbus Bar Assn v. Linnen, 111 Ohio St.3d 507, 2006-Ohio-
5480, 857 N.E.2d 539, we indefinitely suspended an attorney for indecently
exposing himself to at least 30 different women and photographing their
reactions. Adopting the board’s recommendation of indefinite suspension in that
case, we recognized that disbarment is required for “conduct involv[ing]
predatory sexual acts and dishonesty beyond any possible redemption.” Id. at
¶ 29.
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January Term, 2021
{¶ 47} In Disciplinary Counsel v. Pansiera, 77 Ohio St.3d 436, 674
N.E.2d 1373 (1997), a case that is perhaps the most comparable to the present
case, we indefinitely suspended an attorney who had exploited his relationship
with a teenager, whom he had befriended through Alcoholics Anonymous, had
engaged in sexual acts with that teenager, and was later convicted of multiple
counts of corrupting a minor. In that case, we found that the attorney used his
position of dominance and the child victim was in a position of vulnerability.
{¶ 48} Finally, in Disciplinary Counsel v. Wanner, 15 Ohio St.3d 319, 473
N.E.2d 829 (1984), we indefinitely suspended an attorney following his felony
conviction for sexual battery for engaging in sexual conduct with two teenage
girls under his supervisory and disciplinary authority. We noted in that case that
the attorney’s misconduct did not occur as a part or result of his practice of law.
{¶ 49} These cases confirm that an indefinite suspension is sometimes
adequate to protect the public from attorneys whose serious misconduct violates
state criminal laws and/or ethical precepts and that such misconduct does not
necessarily render them so far beyond redemption as to be inherently incapable of
ever again providing professional legal services. According to the majority, the
most significant distinction between sexual misconduct cases that resulted in
permanent disbarment and those that resulted in an indefinite suspension “is
that—like Polizzi—the attorneys who were disbarred were either convicted of
gross sexual imposition or used force, the threat of force, or extreme forms of
coercion to compel their victims to submit to their sexual demands.” Majority
opinion at ¶ 30. I do not dispute the assertion that the commission of sex offenses
involving the element of force or threatened force can magnify the degree of
professional misconduct, even though our case law does not expressly so state.
But it does not necessarily follow that Polizzi’s preadmission criminal offenses
make him so far “beyond any possible redemption,” Linnen, 111 Ohio St.3d 507,
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2006-Ohio-5480, 857 N.E.2d 539, at ¶ 29, that the only appropriate disciplinary
sanction is to prevent him from ever again serving as an attorney.
{¶ 50} “ ‘We have consistently recognized that the primary purpose of
disciplinary sanctions is not to punish the offender, but to protect the public.’ ”
Piazza, 159 Ohio St.3d 150, 2020-Ohio-603, 149 N.E.3d 469, at ¶ 23, quoting
Disciplinary Counsel v. Edwards, 134 Ohio St.3d 271, 2012-Ohio-5643, 981
N.E.2d 857, ¶ 19.
{¶ 51} In this case, the criminal conduct occurred eight to ten years prior
to Polizzi’s 2017 indictment and three to five years before he became an attorney.
As an attorney, Polizzi has not committed any further criminal acts. In addition to
having no prior disciplinary record, Polizzi fully cooperated with the disciplinary
process, he accepted full responsibility for his conduct by pleading guilty in the
criminal case, and he has been subjected to other penalties—a lengthy criminal
sentence and the loss of his teaching license. He repeatedly expressed remorse
and accepted full responsibility in these disciplinary proceedings for his
misconduct.
{¶ 52} Our primary objective in disciplinary proceedings is to protect the
public in relation to the lawyer’s fitness to practice law through sanctions that are
consistent with those imposed in similar cases. The discipline imposed should be
both purposeful and proportionate. I do not believe that Polizzi’s disbarment is
compelled by our precedents or by the principles that guide the disciplinary
process.
{¶ 53} I do not know whether Polizzi should be permitted to practice law
again. I do not believe that that issue should be considered until there has been
sufficient time and opportunity for Polizzi’s due reflection and true contrition and
for Polizzi to establish affirmative evidence of his redemption. But today’s
decision declaring him to be beyond redemption and categorically unfit to ever
practice law again eliminates any incentive for him to seek professional and
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perhaps personal rehabilitation. I would indefinitely suspend Polizzi from the
practice of law. I therefore dissent, respectfully.
DEWINE and STEWART, JJ., concur in the foregoing opinion.
_________________
Joseph M. Caligiuri, Disciplinary Counsel, and Lia J. Meehan and Jennifer
A. Bondurant, Assistant Disciplinary Counsel, for relator.
Law Office of Anthony Greco, L.P.A., Anthony W. Greco, Natalie V.
McGee, and Katherine A. Woodford, for respondent.
_________________
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