Disciplinary Counsel v. Martyniuk (Slip Opinion) , 150 Ohio St. 3d 220 ( 2017 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Martyniuk, Slip Opinion No. 2017-Ohio-4329.]
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SLIP OPINION NO. 2017-OHIO-4329
DISCIPLINARY COUNSEL v. MARTYNIUK.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Disciplinary Counsel v. Martyniuk, Slip Opinion No.
2017-Ohio-4329.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct—
Indefinite suspension.
(No. 2016-1821—Submitted March 1, 2017—Decided June 20, 2017.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2016-015.
_______________________
Per Curiam.
{¶ 1} Respondent, Andrew Osyp Martyniuk, of Kent, Ohio, Attorney
Registration No. 0064997, was admitted to the practice of law in Ohio in 1995. On
November 20, 2015, we suspended his license to practice for an interim period
pursuant to Gov.Bar R. V(18)(A)(1)(a) upon receiving notice that he had been
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convicted of multiple felonies. In re Martyniuk, 144 Ohio St. 3d 1265, 2015-Ohio-
4746, 45 N.E.3d 1013.
{¶ 2} In April 2016, relator, disciplinary counsel, charged Martyniuk with
violations of 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 conduct that adversely reflects on the
lawyer’s fitness to practice law) based on his criminal conduct. The Board of
Professional Conduct found that Martyniuk committed the charged misconduct and
recommended that he be indefinitely suspended from the practice of law with no
credit for the time served under his interim felony suspension. We adopt the
board’s findings of fact, misconduct, and aggravating and mitigating factors and its
recommended sanction.
Misconduct
{¶ 3} On September 29, 2014, Martyniuk pleaded guilty to 20 fourth-
degree-felony counts of pandering sexually oriented material involving a minor in
violation of R.C. 2907.322(A)(5). Martyniuk stipulated that he had knowledge of
the character of the material or performance involved and that he knowingly
solicited, received, purchased, exchanged, possessed, or controlled material that
showed a minor participating or engaging in sexual activity, masturbation, or
bestiality. As a result of that conduct, he was sentenced to a five-year prison term,
which was suspended on the condition that he serve five years of community
control, complete a sex-offender evaluation and follow all the evaluator’s
recommendations, and pay a fine of $5,000 plus court costs. He was also required
to register as a Tier II sex offender for a period of 25 years.
{¶ 4} The parties stipulated that Martyniuk’s conduct adversely reflects
on his fitness to practice law in violation of Prof.Cond.R. 8.4(h), and the matter
proceeded to a hearing before a three-member panel of the board. Consistent with
our decision in Disciplinary Counsel v. Bricker, 137 Ohio St. 3d 35, 2013-Ohio-
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January Term, 2017
3998, 997 N.E.2d 500, the board expressly determined that Martyniuk’s conduct
involving pornographic materials relating to minors was sufficiently egregious to
warrant finding the violation. It also found that by engaging in that criminal
conduct, he committed an illegal act that adversely reflects on his honesty and
trustworthiness in violation of Prof.Cond.R. 8.4(b).
{¶ 5} We adopt the board’s findings of fact and misconduct.
Sanction
{¶ 6} When imposing sanctions for attorney misconduct, we consider
several relevant factors, including the ethical duties the lawyer violated, the
aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions
imposed in similar cases.
{¶ 7} The parties stipulated and the board found that just one aggravating
factor is present—Martyniuk committed multiple offenses. See Gov.Bar R.
V(13)(B)(4). And the parties agree and the board found that the applicable
mitigating factors include the absence of a prior disciplinary record, Martyniuk’s
full and free disclosure (including his November 2015 self-reporting of his
convictions to relator) and cooperative attitude in the disciplinary proceedings, his
acknowledgment of the wrongful nature of his misconduct, and the imposition of
other penalties and sanctions. See Gov.Bar R. V(13)(C)(1), (4), and (6).
{¶ 8} Martyniuk’s disciplinary-hearing testimony demonstrates that he
has never actively engaged in the practice of law. He was honorably discharged
from the United States Air Force in 1992 and served as a research associate at the
University of Cincinnati both during and after completing law school. Although he
drafted several powers of attorney for people he knew through his church, he never
charged a fee for his services. With no job opportunities available to him in
Cincinnati, he moved into his parents’ Kent home in 2003 and worked as the fiscal
officer of the Kent Free Library until he was fired after his employer discovered
pornography on his office computer in 2013.
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{¶ 9} Since his arrest, Martyniuk has served as the primary caretaker for
his elderly parents. At his disciplinary hearing, he expressed his desire to practice
law but stated that he does not know what his future holds. He has presented no
evidence regarding a mental-health diagnosis or his ability to engage in the
competent, ethical, and professional practice of law, either now or in the future.
{¶ 10} The board recommended that we indefinitely suspend Martyniuk
from the practice of law and that he receive no credit for the time he has served
under his interim felony suspension, and neither party has objected to that
recommendation. An indefinite suspension with no credit for the time served under
an interim felony suspension is often the appropriate sanction for an attorney who
has engaged in sexually motivated conduct involving children, and we agree that it
is appropriate in this case. See Disciplinary Counsel v. Grossman, 143 Ohio St. 3d
302, 2015-Ohio-2340, 37 N.E.3d 155 (indefinitely suspending an attorney
convicted of receiving visual depictions of child pornography after he was caught
in a law-enforcement operation in which he had discussed various sex acts
involving a fictitious 11-year-old girl and had gone to a prearranged location
expecting to meet her); Dayton Bar Assn. v. Ballato, 143 Ohio St. 3d 76, 2014-Ohio-
5063, 34 N.E.3d 858 (indefinitely suspending an attorney convicted of a single
count of possessing child pornography that he ordered and downloaded from the
Internet); Disciplinary Counsel v. Butler, 128 Ohio St. 3d 319, 2011-Ohio-236, 943
N.E.2d 1025 (indefinitely suspending an attorney convicted of ten felony counts
involving pandering sexually oriented material involving a minor).
{¶ 11} Accordingly, Andrew Osyp Martyniuk is indefinitely suspended
from the practice of law in Ohio with no credit for the time he has served under his
interim felony suspension. Costs are taxed to Martyniuk.
Judgment accordingly.
O’CONNOR, C.J., and KENNEDY, FRENCH, O’NEILL, and DEWINE, JJ.,
concur.
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January Term, 2017
O’DONNELL, J., would permanently disbar respondent.
FISCHER, J., not participating.
_________________
Scott J. Drexel, Disciplinary Counsel, and Jennifer A. Bondurant, Assistant
Disciplinary Counsel, for relator.
Buckingham, Doolittle & Burroughs, L.L.C., and Peter Thomas Cahoon,
for respondent.
_________________
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