Dayton Bar Assn. v. Greenberg , 135 Ohio St. 3d 430 ( 2013 )

[Cite as Dayton Bar Assn. v. Greenberg, 135 Ohio St. 3d 430, 2013-Ohio-1723.]
DAYTON BAR ASSOCIATION v. GREENBERG.
[Cite as Dayton Bar Assn. v. Greenberg, 135 Ohio St. 3d 430, 2013-Ohio-1723.]
Attorneys—Misconduct—Indefinite license suspension after felony conviction,
with no credit for time served under the interim felony suspension.
(No. 2012-2066—Submitted February 6, 2013—Decided May 1, 2013.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 11-092.
__________________
Per Curiam.
{¶ 1} Respondent, Marc Norman Greenberg of Dayton, Ohio, Attorney
Registration No. 0077480, was admitted to the practice of law in Ohio in 2004.
We suspended Greenberg’s license to practice law on November 23, 2010, on an
interim basis pursuant to Gov.Bar R. V(5)(A)(4), upon receiving notice that he
had been convicted of a felony. In re Greenberg, 127 Ohio St. 3d 1437, 2010-
Ohio-5690, 937 N.E.2d 117.
{¶ 2} Relator, Dayton Bar Association, charged Greenberg with
violations of Prof.Cond.R. 8.4(b) (prohibiting a lawyer from committing an illegal
act that reflects adversely on the lawyer’s honesty or trustworthiness) and (h)
(prohibiting a lawyer from engaging in conduct that adversely reflects on the
lawyer’s fitness to practice law). A panel of the Board of Commissioners on
Grievances and Discipline heard the case, including the parties’ stipulations to the
cited misconduct, made findings of misconduct, and recommended an indefinite
suspension with no credit for time served under the interim suspension. The
board adopted the panel’s findings and recommended sanction, and, after the
board issued its report, the parties stipulated to the findings and sanction. We
adopt the board’s findings of fact and misconduct. Having considered
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Greenberg’s misconduct, the aggravating and mitigating factors present, and the
sanctions imposed for comparable misconduct, we adopt the board’s
recommended sanction.
Misconduct
{¶ 3} The stipulated facts and testimony demonstrate that from February
to April 2009, Greenberg used his computer to make contact with three
undercover law-enforcement officers who were posing on the Internet as 12- and
13-year-old girls. He entered various chat rooms that were geared toward
meeting minor girls and identified himself at various times as an 18-year-old, a
25-year-old, and a 31-year-old male. A series of sexually explicit conversations
ensued between Greenberg and the undercover agents, during which Greenberg
used his computer’s webcam to stream to the agents video and pictures of his
exposed penis and of himself masturbating.
{¶ 4} Greenberg was indicted in the United States District Court for the
Southern District of Ohio, Western Division. The indictment alleged that he had
transferred obscene material to minors in violation of 18 U.S.C. 1470. Through
plea negotiations, the initial indictment was dismissed in favor of a bill of
information that alleged two counts: one count of possessing child pornography
and one count of transferring obscene material to minors. Greenberg entered a
plea of guilty to both counts on August 4, 2010, and was sentenced to two years in
a federal penitentiary. In addition to the prison sentence, the federal court ordered
that after his release Greenberg serve five years of supervised release, and it
classified him as a sex offender, allowing only incidental contact with minor
children, except his biological children, unless otherwise approved. Greenberg
was incarcerated on December 21, 2010, and was released on September 13,
2012. Upon his arrest in May 2009, Greenberg had voluntarily stopped practicing
law and had changed the status of his license to inactive.
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{¶ 5} Based on these facts, the panel and the board found that Greenberg
had violated Prof.Cond.R. 8.4(b) and (h) and recommended that he be indefinitely
suspended, with no credit for time served under the interim felony suspension
imposed on November 23, 2010. We agree.
Sanction
{¶ 6} When imposing sanctions for attorney misconduct, we consider
relevant factors, including the ethical duties that the lawyer violated and the
sanctions imposed in similar cases. Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio
St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶ 16. In making a final
determination, we also weigh evidence of the aggravating and mitigating factors
listed in BCGD Proc.Reg. 10. Disciplinary Counsel v. Broeren, 115 Ohio St. 3d
473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21. Each disciplinary case involves
unique facts and circumstances; thus we are not limited to the factors specified in
BCGD Proc.Reg. 10(B) and may take into account all relevant factors in
determining which sanction to impose.
{¶ 7} As for mitigation, the parties stipulated, and the board noted, that
Greenberg has no prior disciplinary record, voluntarily stopped practicing law,
exhibited a cooperative attitude toward the disciplinary proceedings,
acknowledged the wrongful nature of his misconduct, and made good-faith efforts
to rectify the consequences of his actions. See BCGD Proc.Reg. 10(B)(2)(a), (c),
and (d). The board further found, as mitigating factors, that Greenberg has been
subject to severe sanctions and penalties. See BCGD Proc.Reg. 10(B)(2)(f).
Greenberg was sentenced to two years in a federal penitentiary 1,800 miles from
his family, but was released early for good behavior; he was on home
confinement for 19 months before his incarceration; he is under a five-year period
of supervised release that began upon his release from incarceration; he must
register as a sex offender; he is restricted to limited contact with minor children,
except his biological children; he was subject to public humiliation as a result of
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highly publicized proceedings; he has suffered financial devastation; and he will
never be permitted to coach basketball again.
{¶ 8} Although the board did not find that Greenberg’s mental condition
qualified as a mental disability under BCGD Proc.Reg. 10(B)(2)(g), we
additionally note that Greenberg participated in therapy before his incarceration
and while he was in prison and that he plans to continue therapy for his diagnosed
mental disorder, paraphilia.
{¶ 9} The board found that three aggravating factors were present:
Greenberg exhibited a selfish motive in that he sought to use minors for self-
gratification, see BCGD Proc.Reg. 10(B)(1)(b), he committed multiple offenses,
see BCGD Proc.Reg. 10(B)(1)(d), and he intended to prey on vulnerable 12- and
13-year-old children.
{¶ 10} The board cites Disciplinary Counsel v. Butler, 128 Ohio St. 3d
319, 2011-Ohio-236, 943 N.E.2d 1025, as instructive under these circumstances.
In Butler, the respondent was convicted of ten felony counts of pandering
sexually oriented material involving a minor, and we imposed an interim felony
suspension on his license. Id. at ¶ 1. The board found that none of the factors in
aggravation set forth in BCGD Proc.Reg. 10(B)(1) were present. It found in
mitigation that the respondent lacked a prior disciplinary record, provided full and
free disclosure to the board, and was cooperative in the proceedings. We agreed
with the board’s recommendation and imposed an indefinite suspension with no
credit for time served under his interim suspension. Id. at ¶ 3, 4.
{¶ 11} Disciplinary Counsel v. Ridenbaugh, 122 Ohio St. 3d 583, 2009-
Ohio-4091, 913 N.E.2d 443, is also instructive. In that case, we imposed an
indefinite suspension with credit for time served under an interim suspension
order for misconduct involving acts of voyeurism and use of child pornography.
The respondent in Ridenbaugh, as was Greenberg, was a young lawyer relatively
new to the practice with no prior discipline, he fully cooperated in both the
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disciplinary and criminal processes, and he made every attempt to rectify his
misconduct by seeking and continuing treatment for his disorders. Id. at ¶ 15-17.
The aggravating factors were similar to those here: a selfish motive and multiple
offenses. Id. at ¶ 20-22. Also, as did Greenberg, the respondent deeply regretted
his misconduct and the devastating effects on his family, friends, and colleagues,
as noted by the court.
{¶ 12} When a lawyer engages in or attempts to engage in sexually
motivated conduct with an underage person, an indefinite suspension of the
lawyer’s license to practice is appropriate. Disciplinary Counsel v. Goldblatt, 118
Ohio St. 3d 310, 2008-Ohio-2458, 888 N.E.2d 1091, ¶ 18. “Moreover, lawyers
convicted of felonies stemming from such conduct cannot expect to receive credit
for an interim suspension imposed pursuant to Gov.Bar R. V(5)(A)(4). Such
credit is given only when the attorney poses no danger of reoffending.” Id.
{¶ 13} Having reviewed the record, weighed the aggravating and
mitigating factors, and considered the sanctions imposed for comparable conduct,
we adopt the board’s recommended sanction. Accordingly, we suspend Marc
Greenberg from the practice of law in Ohio indefinitely, with no credit for time
served under his interim felony suspension.
{¶ 14} Costs are taxed to Greenberg.
Judgment accordingly.
O’CONNOR, C.J., and PFEIFER, LANZINGER, KENNEDY, and FRENCH, JJ.,
concur.
O’DONNELL, J., dissents and would disbar Greenberg.
O’NEILL, J., dissents and would grant Greenberg credit for time served
under his interim felony suspension.
__________________
Altick & Corwin Co., L.P.A., and Peter R. Certo, for relator.
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Bieser, Greer & Landis, L.L.P., David C. Greer, and Gretchen M.
Treherne, for respondent.
______________________
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