Disciplinary Counsel v. Spinazze (Slip Opinion) ( 2020 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Spinazze, Slip Opinion No. 2020-Ohio-957.]
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
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the opinion is published.
SLIP OPINION NO. 2020-OHIO-957
DISCIPLINARY COUNSEL v. SPINAZZE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Disciplinary Counsel v. Spinazze, Slip Opinion No.
2020-Ohio-957.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct—Six-
month suspension.
(No. 2019-1075—Submitted January 8, 2020—Decided March 17, 2020.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2018-060.
_______________________
Per Curiam.
{¶ 1} Respondent, Anthony Perin Spinazze, of Sylvania, Ohio, Attorney
Registration No. 0071893, was admitted to the practice of law in Ohio in 2000.
{¶ 2} In November 2018, relator, disciplinary counsel, charged Spinazze
with making false statements to a court and his supervisor while serving as a part-
time assistant prosecutor for the city of Sylvania. The parties entered into
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stipulations of fact and misconduct, and after a hearing before a three-member panel
of the Board of Professional Conduct, the board issued a report finding that
Spinazze engaged in the stipulated misconduct and recommending that we suspend
him from the practice of law for six months. Spinazze objects to the board’s
recommended sanction, arguing that a fully stayed six-month suspension is more
appropriate.
{¶ 3} Based on our review of the record, we overrule Spinazze’s objections
and accept the board’s findings of misconduct and recommended sanction.
Misconduct
{¶ 4} In November 2017, law-enforcement authorities arrested Jeremiah
Johnson for operating a vehicle while under the influence of alcohol (“OVI”). The
police report indicated that two officers had observed Johnson driving his vehicle.
Johnson was later arraigned in the Sylvania Municipal Court.
{¶ 5} Spinazze commenced his employment as a part-time assistant
prosecutor for Sylvania in January 2018 and was assigned to prosecute Johnson’s
case. In April 2018, Spinazze met with Johnson’s attorney and a deputy sheriff,
Jeff Bretzloff, to view Bretzloff’s body-camera video of Johnson’s arrest. After
watching the video, Johnson’s attorney indicated that Johnson would be willing to
plead guilty to a reduced charge of having physical control of a vehicle while under
the influence, a first-degree misdemeanor. See R.C. 4511.194(D). Bretzloff,
however, objected to the proposed resolution.
{¶ 6} Spinazze nevertheless later agreed to recommend reducing Johnson’s
OVI charge to the misdemeanor physical-control offense. After learning of the plea
agreement, the municipal-court judge—who knew that Johnson had two prior
alcohol-related convictions—requested that Spinazze appear in court and explain
the basis for the recommendation. When he appeared, Spinazze misled the court
regarding the city’s case against Johnson. Specifically, in explaining why he had
agreed to recommend the reduced charge, Spinazze stated that there was “a question
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as to * * * the observation by the police of the defendant driving” and that the city
had “some evidence concerns” about whether it “could put [Johnson] in the car.”
Spinazze also falsely stated that the arresting officers, including Deputy Bretzloff,
had consented to the plea agreement. Based on Spinazze’s representations, the
court accepted Johnson’s plea.
{¶ 7} Later that day, Christy Cole, the city’s chief prosecutor and
Spinazze’s supervisor, heard about the plea and reviewed the “Case Notes” section
of the prosecutor’s file, which includes the notes and other work product of the
assistant prosecutor assigned to the case. In his notes on Johnson’s case, Spinazze
had written that he had agreed to recommend reducing the charge because the court
“was going to dismiss case.” During his disciplinary proceeding, Spinazze
admitted that his notation was false because the court had never indicated an intent
to dismiss the matter.
{¶ 8} Considering Johnson’s prior alcohol-related convictions, Cole was
surprised that Spinazze had agreed to recommend reducing the OVI charge and
asked him whether the arresting officers had consented to the plea agreement.
Although Spinazze then admitted to Cole that he had not obtained the officers’
consent, he failed to inform her about his misrepresentations to the municipal court.
The following month, Cole listened to the court’s audio recording of the hearing
and expressed to Spinazze her concern that he had misled the court about the basis
for his recommendation and whether he had the arresting officers’ consent. In
response, Spinazze falsely claimed that he had made a mistake at the hearing by
relying on defense counsel’s account of the incident and by agreeing to recommend
the reduction without first reviewing the file.
{¶ 9} Deputy Bretzloff, however, told Cole the truth: that he had met with
Spinazze and Johnson’s attorney and had voiced an objection to any reduction to
the OVI charge. When Cole confronted Spinazze again, he admitted that Bretzloff
was correct. Thereafter, the city’s law director placed Spinazze on unpaid
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administrative leave, and Spinazze submitted a written apology to the municipal-
court judge and apologized in person to Bretzloff. Spinazze also self-reported some
of his misconduct to relator. The city ultimately terminated Spinazze from his
position as an assistant prosecutor.
{¶ 10} Because the municipal court had relied on Spinazze’s false
statements in accepting the parties’ plea agreement, the city moved to vacate
Johnson’s plea. The city also requested the appointment of a special prosecutor,
and Johnson’s attorney moved to withdraw. After the court appointed new
attorneys for the case, an acting judge vacated Johnson’s plea and found him guilty
of OVI.
{¶ 11} Spinazze admitted that his conduct resulted in the following rule
violations. By making false statements to the municipal-court judge, he violated
Prof.Cond.R. 3.3(a) (prohibiting a lawyer from making a false statement to a
tribunal). By making a false notation in the case file and making false statements
to his supervisor, he violated Prof.Cond.R. 8.4(c) (prohibiting a lawyer from
engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).
And because his misrepresentations resulted in a series of events that prejudiced
the administration of justice in Johnson’s case—including requiring the
appointment of a special prosecutor and new defense counsel and causing the court
to accept and then vacate Johnson’s original plea—Spinazze violated Prof.Cond.R.
8.4(d) (prohibiting an attorney from engaging in conduct that is prejudicial to the
administration of justice).
{¶ 12} The board found that Spinazze committed the stipulated rule
violations, and we agree with the board’s findings of misconduct.
Sanction
{¶ 13} When imposing sanctions for attorney misconduct, we consider all
relevant factors, including the ethical duties that the lawyer violated, the
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aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions
imposed in similar cases.
{¶ 14} The board found one aggravating factor—that Spinazze had acted
with a dishonest motive. See Gov.Bar R. V(13)(B)(2). In mitigation, the board
found that Spinazze has a clean disciplinary record, he had exhibited a cooperative
attitude toward the disciplinary proceedings, he had submitted evidence of positive
character and reputation, and other penalties have been imposed for the same
misconduct—namely, he was placed on unpaid leave from his position with the city
and then was ultimately terminated. See Gov.Bar R. V(13)(C)(1), (4), (5), and (6).
{¶ 15} The board reviewed a number of cases involving attorneys who
made false statements to a court and found two decisions persuasive: Disciplinary
Counsel v. Phillabaum, 144 Ohio St. 3d 417, 2015-Ohio-4346, 44 N.E.3d 271, and
Toledo Bar Assn. v. DeMarco, 144 Ohio St. 3d 248, 2015-Ohio-4549, 41 N.E.3d
1237.
{¶ 16} In Phillabaum, an assistant prosecutor insisted that a legal assistant
add to an indictment gun specifications that had not been presented to the grand
jury. Phillabaum then signed the indictment, knowing that it contained a false
statement. After his conduct came to light, the prosecutor’s office had to present
the case to the grand jury for a second time and obtain a superseding indictment.
Based on his misconduct, Phillabaum pled guilty to dereliction of duty, a second-
degree misdemeanor, and we found that he violated Prof.Cond.R. 3.3(a)(1), 8.4(c),
8.4(d), and 8.4(h) (prohibiting a lawyer from engaging in conduct that adversely
reflects on the lawyer’s fitness to practice law). We suspended him for one year.
{¶ 17} In DeMarco, an attorney repeatedly represented to a court that a
computer expert had never given him a disc of potentially relevant discovery
materials, even though not only had the expert given the disc to DeMarco but
DeMarco had reviewed the documents on the disc. During one proceeding,
DeMarco threatened to take the expert “outside” after the expert truthfully testified
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that he had given the disc to DeMarco. DeMarco admitted to his misconduct only
after the expert played in court a voicemail in which DeMarco essentially admitted
that he had lied to the court. Id. at ¶ 6, 14. We found that DeMarco violated
Prof.Cond.R. 3.3(a)(1), 3.3(a)(3) (prohibiting a lawyer from offering evidence that
the lawyer knows to be false), and 8.4(c) and imposed a one-year suspension, with
six months conditionally stayed.
{¶ 18} The board found DeMarco particularly informative and cited
longstanding precedent imposing actual suspensions on attorneys who made
material misrepresentations to a court. See, e.g., Disciplinary Counsel v.
Fowerbaugh, 74 Ohio St. 3d 187, 190, 658 N.E.2d 237 (1995). The board also noted
that it was influenced by the chief justice’s statement in Disciplinary Counsel v.
Brockler, 145 Ohio St. 3d 270, 2016-Ohio-657, 48 N.E.3d 557, that attorneys who
serve as prosecutors “are authorized to enforce the law and administer justice” and
“must meet or exceed the highest ethical standards imposed on our profession,” id.
at ¶ 29 (O’Connor, C.J., dissenting). In addition, the board noted that at Spinazze’s
disciplinary hearing, he appeared to retreat from his prior admissions when he
characterized his false statements as a “mistake” rather than as intentionally
misleading. Based on this record, the board recommends that we impose a six-
month suspension.
Spinazze’s objections
{¶ 19} Spinazze objects to two of the board’s findings. First, he argues that
at his disciplinary hearing, he took full responsibility for his misconduct and
repeatedly acknowledged that his actions were intentional. Therefore, Spinazze
asserts that the board’s finding that he characterized his actions as a “mistake” was
not supported by the record. Second, he claims that the board’s reliance on
Phillabaum and DeMarco is misplaced because those cases involved more
egregious attorney misconduct than that at issue here. According to Spinazze, his
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actions do not rise to the level warranting an actual suspension and our caselaw
supports a fully stayed six-month suspension.
{¶ 20} Spinazze is correct that at his hearing, he admitted that he had
intended to mislead the municipal court, agreed that lying to a judge is not a
“mistake,” admitted to writing the false notation in the case file, admitted that he
made the notation so that no one would know the actual reason he had agreed to
recommend that the charge be reduced, and admitted to making false statements to
his supervisor. The board is also correct, however, that at one point during the
hearing, Spinazze appeared to equivocate. After panel members directly pressed
him on whether he considered his conduct a mistake or intentional, he stated: “My
head was spinning. I was new on the job. I wasn’t prepared.”
{¶ 21} Regardless, the board’s report does not indicate that it found
Spinazze’s inconsistent testimony dispositive in recommending an actual instead
of a fully stayed suspension. Nor do we find this issue crucial in our analysis.
Rather, to support its recommended sanction, the board primarily relied on
Spinazze’s misconduct and our caselaw, which we agree supports an actual
suspension in this case.
{¶ 22} When an attorney’s misconduct includes a course of conduct
involving dishonesty—and especially when the dishonesty includes making
misrepresentations to a court—we generally impose an actual suspension. See
Disciplinary Counsel v. Schuman, 152 Ohio St. 3d 47, 2017-Ohio-8800, 92 N.E.3d
850, ¶ 18, quoting DeMarco, 144 Ohio St. 3d 248, 2015-Ohio-4549, 41 N.E.3d
1237, at ¶ 12 (“it is well established in our case law that an attorney’s course of
conduct involving dishonesty usually warrants an actual suspension, and ‘this is
especially true when an attorney makes repeated and material false statements to a
court’ ”); Cleveland Bar Assn. v. Herzog, 87 Ohio St. 3d 215, 217, 718 N.E.2d 1274
(1999) (“We will not allow attorneys who lie to courts to continue practicing law
without interruption”). As we have previously explained,
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[a] lawyer who engages in a material misrepresentation to a court or
a pattern of dishonesty with a client violates, at a minimum, the
lawyer’s oath of office * * *. Such conduct strikes at the very core
of a lawyer’s relationship with the court and with the client. Respect
for our profession is diminished with every deceitful act of a lawyer.
We cannot expect citizens to trust that lawyers are honest if we have
not yet sanctioned those who are not.
Fowerbaugh, 74 Ohio St. 3d at 190, 658 N.E.2d 237.
{¶ 23} Spinazze has not demonstrated that the circumstances here warrant
anything less than an actual suspension from the practice of law. He engaged in a
course of deceitful conduct, starting with making multiple false statements to a
court and then attempting to cover up those misrepresentations with a false notation
in the case file and false excuses to his supervisor. In addition, Spinazze’s conduct
prejudiced the administration of justice because a judge relied on Spinazze’s
misrepresentations in accepting a plea, which the court was later forced to vacate
after the discovery of Spinazze’s misconduct. Contrary to Spinazze’s objections,
his actions are comparable in scope and severity to the misconduct in DeMarco,
and as in that case, we find no compelling reason to depart from our precedent
imposing an actual suspension for repeated dishonest conduct. See also
Disciplinary Counsel v. Rohrer, 124 Ohio St. 3d 65, 2009-Ohio-5930, 919 N.E.2d
180 (suspending an attorney for six months for deliberately violating a court order
and then making false and misleading statements to a court and state agency about
his actions).
{¶ 24} Accordingly, we overrule Spinazze’s objections and hold that a six-
month suspension is the appropriate sanction in this case.
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Conclusion
{¶ 25} For the reasons explained above, Anthony Perin Spinazze is
suspended from the practice of law in Ohio for six months. Costs are taxed to
Spinazze.
Judgment accordingly.
O’CONNOR, C.J., and KENNEDY, FRENCH, FISCHER, DEWINE, DONNELLY,
and STEWART, JJ., concur.
_________________
Joseph M. Caligiuri, Disciplinary Counsel, and Adam P. Bessler, Assistant
Disciplinary Counsel, for relator.
Coughlan Law Firm, L.L.C., and Jonathan E. Coughlan, for respondent.
_________________
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