Disciplinary Counsel v. Ridenbaugh

[Cite as Disciplinary Counsel v. Ridenbaugh, 122 Ohio St. 3d 583, 2009-Ohio-4091.]
DISCIPLINARY COUNSEL v. RIDENBAUGH.
[Cite as Disciplinary Counsel v. Ridenbaugh,
122 Ohio St. 3d 583, 2009-Ohio-4091.]
Attorneys at law — Misconduct — Multiple disciplinary violations — Indefinite
suspension with credit for time served on interim suspension.
(No. 2008-2493 — Submitted April 8, 2009 — Decided August 20, 2009.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 08-025.
__________________
Per Curiam.
{¶ 1} Respondent, Aaron Anthony Ridenbaugh of Cuyahoga Falls, Ohio,
Attorney Registration No. 0076823, was admitted to the practice of law in Ohio in
2003. On February 7, 2008, we suspended respondent's license to practice on an
interim basis pursuant to Gov.Bar R. V(5)(A)(4), upon receiving notice of his
felony conviction. See In re Ridenbaugh, 116 Ohio St. 3d 1511, 2008-Ohio-441,
880 N.E.2d 486.
{¶ 2} The Board of Commissioners on Grievances and Discipline now
recommends that we indefinitely suspend respondent’s license to practice. The
recommendation is based on the board’s findings that respondent’s acts of
voyeurism and use of child pornography, which led to his felony convictions,
breached ethical standards incumbent on lawyers in this state. We accept the
board’s findings that respondent engaged in professional misconduct and the
recommendation for an indefinite suspension; however, we also grant respondent
credit for the time his license has been under interim suspension.
{¶ 3} Relator, Disciplinary Counsel, charged respondent with violations
of the former Code of Professional Responsibility and the current Rules of
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Professional Conduct.1 A panel of three board members heard the case, including
the parties’ stipulations to charged misconduct, and recommended that this court
suspend respondent from practice for two years, order him to comply with various
restrictions during that time, and deny his request for credit for the interim
suspension of his license. The board adopted the panel’s findings of misconduct
but recommended an indefinite suspension under the suggested restrictions and
without credit for the interim suspension.
{¶ 4} Respondent objects to the board’s recommendation, arguing that
the board had no justification for augmenting the sanction recommended by the
panel and that an indefinite suspension is too severe. Respondent asks that we (1)
impose a two-year suspension with a stay of the last year on conditions
resembling those recommended and (2) grant credit for the time served on the
interim suspension to offset any suspension period we impose. For the reasons
expressed below, we overrule the objections to the indefinite suspension, but
sustain the objection to the denial of interim-suspension credit.
Misconduct
{¶ 5} Respondent began engaging in the activities that would lead to his
arrest sometime in late 2004, when while walking around his apartment complex
he discovered that he could sometimes hear people inside an apartment having
sexual relations. He started placing a recording device inconspicuously outside
apartment windows so that he could record residents’ sexual activity and later
listen to the recording for sexual gratification. Respondent continued to make
these secret recordings until May 21, 2007, when a resident spied him placing a
1. Relator charged respondent with misconduct under applicable rules for acts occurring before
and after February 1, 2007, the effective date of the Rules of Professional Conduct, which
supersede the Code of Professional Responsibility. Although both the former and current rules are
cited for the same acts, the allegations comprise a single ethical violation. Disciplinary Counsel v.
Freeman, 119 Ohio St. 3d 330, 2008-Ohio-3836, 894 N.E.2d 31, ¶ 1, fn. 1.
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recording device outside a bedroom window. Law enforcement apprehended
respondent later the same day, and he confessed to surreptitious recordings.
{¶ 6} A search of respondent’s apartment revealed other evidence of
illicit conduct ⎯ possession of child pornography. Police discovered three videos
and hundreds of photos and digital images showing minors in various stages of
nudity. Respondent later revealed that he began obtaining child pornography near
the end of 2006. Officers also found that respondent had made a peephole
allowing him to view the female resident in an adjoining apartment.
{¶ 7} Respondent was indicted on three counts of intercepting wire, oral,
or electronic communications in violation of R.C. 2933.32(A)(1), a felony of the
fourth degree, and four counts of voyeurism in violation of R.C. 2907.08(A), a
misdemeanor of the third degree, for acts occurring on April 21, 2005, September
27, 2006, and May 21, 2007. He eventually pleaded guilty to a bill of information
charging him with three counts of pandering sexually oriented matter involving a
minor in violation of R.C. 2907.322(A)(5), a felony of the fourth degree, and one
count of the illegal use of a minor in nudity-oriented material or performance in
violation of R.C. 2907.323(A)(3), a felony of the fifth degree, for acts occurring
on November 9, 2006.
{¶ 8} After a presentence investigation, respondent was sentenced on
November 21, 2007, to a 48-month prison term. He was granted early judicial
release in mid-January 2008, after serving only 56 days. He was then placed on
community control for a period of five years, ordered into therapy, and ordered to
comply with a series of probationary restrictions, among them completion of 300
hours of community service.
{¶ 9} Respondent has admitted violations of DR 1-102(A)(3),
prohibiting a lawyer from engaging in illegal conduct involving moral turpitude,
and Prof.Cond.R. 8.4(b), prohibiting a lawyer from committing an illegal act that
reflects adversely on the lawyer’s honesty or trustworthiness. He also admits
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violations of DR 1-102(A)(6) and Prof.Cond.R. 8.4(h), both prohibiting a lawyer
from engaging in conduct that adversely reflects on the lawyer’s fitness to
practice law. We accept these stipulations and find the requisite clear and
convincing evidence that respondent committed this professional misconduct.
Sanction
{¶ 10} In determining the appropriate sanction to impose for attorney
misconduct, “we consider the duties violated, the actual or potential injury caused,
the attorney’s mental state, the existence of aggravating or mitigating
circumstances, and sanctions imposed in similar cases.” Stark Cty. Bar Assn. v.
Ake, 111 Ohio St. 3d 266, 2006-Ohio-5704, 855 N.E.2d 1206, ¶ 44. We then
weigh the aggravating and mitigating factors to decide whether circumstances
warrant a more lenient or a harsher disposition. See BCGD Proc.Reg. 10(B).
Because each disciplinary case involves unique facts and circumstances, we are
not limited to the factors specified in the rule and may take into account all
relevant factors in determining which sanction to impose. BCGD Proc.Reg.
10(A) and (B).
{¶ 11} Respondent has conceded that he violated the duties to the public
and legal profession set forth in DR 1-102(A)(3), Prof.Cond.R. 8.4(b), DR 1-
102(A)(6), and Prof.Cond.R. 8.4(h). As to the harm posed by this misconduct, the
board concluded:
{¶ 12} “The offenses committed by Respondent were despicable acts. In
the case of the voyeurism Respondent’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 Respondent’s activity was unveiled. And in the case
of the child pornography, Respondent’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.”
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{¶ 13} In cases where lawyers commit sex crimes targeting children or
other especially vulnerable victims, we have imposed a sanction to at once
“protect the public, deter other lawyers from similar wrongdoing, and preserve the
public’s trust in the legal profession.” Disciplinary Counsel v. Goldblatt, 118
Ohio St. 3d 310, 2008-Ohio-2458, 888 N.E.2d 1091, ¶ 30. Thus, in Goldblatt, we
indefinitely suspended a lawyer’s license to practice following his two felony
convictions for attempting to engage in sexual conduct with an underage victim.
Accord Disciplinary Counsel v. Pansiera (1997), 77 Ohio St. 3d 436, 674 N.E.2d
1373 (sexual conduct with minor). And in Columbus Bar Assn. v. Linnen, 111
Ohio St. 3d 507, 2006-Ohio-5480, 857 N.E.2d 539, we indefinitely suspended a
lawyer from practice following his misdemeanor convictions for indecently
exposing himself to at least 30 different women and photographing their
reactions. In so doing, we ensured that the lawyers could not return to the
practice of law for at least two years as required by Gov.Bar R. V(10)(B) or
without requalifying to practice through the rigorous process for reinstatement set
forth in the rest of Gov.Bar R. V(10).2
2. {¶ a} Gov.Bar R. V(10)(C) and (D) establish the following requirements for the petition for
reinstatement:
{¶ b} “(C) Contents of Petition for Reinstatement. Except as provided in division (B) of this
section, a person who has been suspended from the practice of law for an indefinite period and
who wishes to be reinstated may file a verified petition and twenty copies of the petition with the
Clerk of the Supreme Court. The petition shall include all of the following:
{¶ c} “(1) The date on which the suspension was ordered and, if there was a reported opinion,
the volume and page of the Ohio Official Reports where the opinion appears;
{¶ d} “(2) The dates on which all prior petitions for reinstatement were filed and denied or
granted;
{¶ e} “(3) The names of all persons and organizations, except the petitioner and the Board,
who were or would be entitled under this rule to receive from the Clerk of the Supreme Court
certified copies of the disciplinary order of the Supreme Court against petitioner resulting in his or
her suspension, the name of the bar association of the county or counties in which he or she
resides at the time of the filing of the petition and of each county in which he or she proposes to
maintain an office if reinstated, and the Ohio State Bar Association;
{¶ f} “(4) A statement that the petitioner has complied with the continuing legal education
requirements of Gov. Bar R. X, Section 3(G);
{¶ g} “(5) The facts upon which the petitioner relies to establish by clear and convincing
evidence that he or she possesses all the mental, educational, and moral qualifications that were
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{¶ 14} An indefinite suspension from practice is thus an appropriate
disposition in this case. Respondent argues, however, that (1) he should receive
credit for time served on his interim suspension and (2) mitigating factors
outweigh aggravating factors and support a suspension of two years with one year
conditionally stayed, allowing him to forgo the petition-for-reinstatement process.
In mitigation, the board found:
{¶ 15} “Although only a young lawyer having practiced less than five
years before his interim suspension, Respondent does in fact have no disciplinary
record.” See BCGD Proc.Reg. 10(B)(2)(a).
required of an applicant for admission to the practice of law in Ohio at the time of his or her
original admission and that he or she is now a proper person to be readmitted to the practice of law
in Ohio, notwithstanding the previous disciplinary action.
{¶ h} “(D) Costs to be Deposited with Petition for Reinstatement. A petition for reinstatement
shall be accompanied by a deposit, in an amount fixed by the Clerk, for probable costs and
expenses to be incurred in connection with the proceedings. The costs shall include any amounts
unpaid under any prior order of the Supreme Court and any amounts owed to the Clients' Security
Fund of Ohio for reimbursement of an award made pursuant to Gov. Bar R. VIII as the result of
petitioner's misconduct.”
{¶ i} The lawyer must then prove at a hearing the Gov.Bar R. V(10)(E) requisites for
reinstatement:
{¶ j} “(E) Requisites for Reinstatement. The petitioner shall not be reinstated unless he or she
establishes all of the following by clear and convincing evidence to the satisfaction of the panel
hearing the petition for reinstatement:
{¶ k} “(1) That the petitioner has made appropriate restitution to the persons who were
harmed by his or her misconduct;
{¶ l} “(2) That the petitioner possesses all of the mental, educational, and moral qualifications
that were required of an applicant for admission to the practice of law in Ohio at the time of his or
her original admission;
{¶ m} “(3) That the petitioner has complied with the continuing legal education requirements
of Gov. Bar R. X, Section 3(G);
{¶ n} “(4) That the petitioner is now a proper person to be readmitted to the practice of law in
Ohio, notwithstanding the previous disciplinary action.
{¶ o} “The order of reinstatement may be subject to conditions the Supreme Court considers
appropriate including, but not limited to, requiring the petitioner to serve a period of probation on
conditions the Supreme Court determines and requiring the petitioner to subsequently take and
pass a regular bar examination of the Supreme Court and take the oath of office.”
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{¶ 16} “Respondent has fully cooperated not only in the disciplinary
process, but also the judicial process as well.” See BCGD Proc.Reg. 10(B)(2)(d).
{¶ 17} “Respondent has made every attempt to rectify his misconduct by
seeking and continuing treatment for the psychological and psychiatric disorders
discussed below.” See BCGD Proc.Reg. 10(B)(2)(c).
{¶ 18} “There have unquestionably been other, significant sanctions that
have been imposed on Respondent, many of which will continue for years, if not a
lifetime.” See BCGD Proc.Reg. 10(B)(2)(f).
{¶ 19} As aggravating features, the board found:
{¶ 20} “There was clearly a selfish motive behind Respondent’s conduct.
He succumbed to his sexual fetishes without regard to the privacy and well being
of his victims.” See BCGD Proc.Reg. 10(B)(1)(b).
{¶ 21} “Respondent’s conduct involved multiple offenses that took place
over a period of years.” See BCGD Proc.Reg. 10(B)(1)(d).
{¶ 22} “Respondent’s conduct was directed at vulnerable victims,
particularly with respect to his viewing child pornographic material.” See BCGD
Proc.Reg. 10(B)(1)(h).
{¶ 23} Respondent claims that the board failed to adequately acknowledge
his remorse and mental disability in its deliberations. As to the first factor, it is
true that the board did not specify respondent’s contrition as mitigating. We,
however, have no difficulty accepting that respondent deeply regrets his
misconduct and the devastating effects it has had on his family, friends,
colleagues, and especially his victims.
{¶ 24} In contrast, we find that respondent is unable, for now, to
completely satisfy the test in BCGD Proc.Reg. 10(B)(2)(g)(i) through (iv) for
attributing significant mitigating effect to his mental disability. For a mental
disability to qualify as a mitigating factor under the rule, the record must contain
evidence of the following:
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{¶ 25} “(i) A diagnosis of a * * * mental disability by a qualified health
care professional * * *;
{¶ 26} “(ii) A determination that the * * * mental disability contributed to
cause the misconduct;
{¶ 27} “(iii) In the event of * * * mental disability, a sustained period of
successful treatment; and
{¶ 28} “(iv) A prognosis from a qualified health care professional * * *
that the attorney will be able to return to competent, ethical professional practice
under specified conditions.”
{¶ 29} Respondent established the first three elements of this test.
Respondent’s psychiatrist, Stephen B. Levine, M.D., is an expert in clinical
sexuality, including paraphilia, a condition generated by “the clash between
individual sexual interest and social rules governing sexual behavior.” Goldblatt,
118 Ohio St. 3d 310, 2008-Ohio-2458, 888 N.E.2d 1091, ¶ 22. When he came
under Dr. Levine’s care in mid-June 2007, respondent had just been hospitalized
as suicidal following his arrest. Dr. Levine testified to his four-pronged diagnosis
of respondent’s mental disabilities: (1) dysthymia ⎯ a chronic low-grade
depression from which respondent has suffered since childhood, (2) chronic
substance abuse, mainly of marijuana, (3) paraphilia, manifested by voyeuristic
and pedophiliac activity, with mixed character disorder marked by a passive,
socially avoidant personality, and (4) attention deficit disorder (“ADD”), the most
treatable of respondent’s disabilities.
{¶ 30} Dr. Levine’s testimony also unquestionably established that
respondent’s mental disabilities contributed to his ethical breaches. He explained
how respondent’s depression and sense of hopelessness traced back to his
upbringing, which included abandonment in childhood by his biological father,
his mother’s contemporaneous cancer diagnosis, and a few years later, his abrupt
and painful separation from his stepfather, to whom respondent had grown close,
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due to the stepfather’s conviction of possession of child pornography.
Overwhelmed with low self-esteem and increasingly unable to achieve sexual
satisfaction, respondent fixated on “coming of age” sexuality and sex acts
between pubescent minors. According to Dr. Levine, respondent suffers from a
lack of normal sexual development and as a result engaged in self-destructive
behavior, including substance abuse, voyeurism, and extensive viewing of
pornography.
{¶ 31} But with psychotherapy and medication, respondent has made
strides toward managing his deviant and other unhealthy propensities. Before his
incarceration in November 2007, respondent had attended weekly sessions with
Dr. Levine; after prison, they met every two weeks until approximately June
2008. At that time, because he had made “reasonably” good progress but also due
to his financial constraints, respondent had cut back on his appointments with Dr.
Levine to just one every three and one-half weeks. He is compliant with
prescribed medication, which has included Zoloft, an antidepressant, and Strattera
for his ADD. Dr. Levine testified and respondent confirmed that since entering
therapy, respondent has not engaged in illegal sexual activity, and random drug
testing has shown that he has ceased all substance abuse.
{¶ 32} Megan Robertson, a social worker for the Ohio Lawyers
Assistance Program (“OLAP”), also recounted how respondent had completed a
sustained period of successful treatment. She testified that respondent had
completely complied with his OLAP contract and had demonstrated commitment
to fulfilling the requirements of community service, sex-offender therapy, drug
and alcohol therapy, and the terms of his community control. Respondent, who
formerly practiced as a bankruptcy attorney, returned to his law firm as a
paralegal after his incarceration, and his work remains highly regarded. 3
3. Respondent and his law firm agreed upon his continued employment before the effective date
of Gov.Bar R. V(8)(G)(1), which now prohibits a lawyer suspended from practice from working
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{¶ 33} Respondent has achieved much in terms of recovery and
rehabilitation and has expressed gratitude for his arrest as the catalyst for both.
But given the risks associated with his misconduct, we do not at this time consider
the medical testimony to be clear and convincing proof of the fourth element of
the BCGD Proc.Reg. 10(B)(2)(g) test – that respondent is currently capable of
returning to the competent, ethical, and professional practice of law. We
acknowledge that Dr. Levine testified, to a reasonable degree of psychiatric
certainty, that respondent was ready to resume his practice. We, however, find
too much equivocation in Dr. Levine’s optimism for respondent’s immediate
future.
{¶ 34} Though making a “very good prognosis” for respondent, Dr.
Levine could say only that he thought respondent “may eventually get married
and have a reasonably normal sexual life.” Thus, respondent has not reached
normality in the area of his life that caused his ethical violations, and he therefore
continues to present a risk of relapse to aberrant behavior. Indeed, Dr. Levine’s
tentativeness in vouching for respondent’s ability to avoid deviant sexual activity
is evident from his testimony:
{¶ 35} “So I would say that he’s not going to turn into somebody he
wasn’t before, but he’s going to improve that – he’s going to continue struggling
with these characterological features, and I think he can have a far better
adaptation. So in general, I have felt optimistic about him. It wasn’t simply a
thing that I give to people who are my patients; that is, I sell hope, yes. But I also
am realistic to know that some people really can’t and won’t get better under my
care.
for a law firm with which he was associated at the time of the misconduct. A member of the firm
testified that respondent’s employment with the firm otherwise complies with Gov.Bar R.
V(8)(G)(1) restrictions.
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{¶ 36} “Aaron, I believe, has engaged in multi-modal therapy. He’s done
that in a responsible way. He has a sense of hope for himself. And, therefore, I
think I can consciously say that the prognosis is pretty good. But I can’t predict
the future. You know, I can’t predict his economic situation. * * * But he has
made significant progress.”
{¶ 37} As we explained in Disciplinary Counsel v. Parker, 116 Ohio
St.3d 64, 2007-Ohio-5635, 876 N.E.2d 556, ¶ 84:
{¶ 38} “We have never allowed a lawyer who has committed misconduct
because of a mental disability to continue to practice without the assurance of a
qualified health-care professional, in conformity with BCGD Proc.Reg.
10(B)(2)(g)(iv), that the lawyer is able to practice safely. Evidence suggesting
that the lawyer may be able to practice competently and in accordance with
ethical and professional standards is not nearly enough. Our cases show that a
lawyer whose diagnosed mental disability has contributed to his misconduct must
provide competent proof that the disabling symptoms are fully managed
currently. E.g., Disciplinary Counsel v. Bowman, 110 Ohio St. 3d 480, 2006-
Ohio-4333, 854 N.E.2d 480, ¶ 38; Disciplinary Counsel v. Shaw, 110 Ohio St. 3d
122, 2006-Ohio-3821, 851 N.E.2d 487, ¶ 33; and Columbus Bar Assn. v.
McCorkle, 105 Ohio St. 3d 430, 2005-Ohio-2588, 828 N.E.2d 99, ¶ 11.”
(Emphasis added in part.)
{¶ 39} Moreover, Dr. Levine conditioned his prognosis on respondent’s
long-term psychiatric treatment, stating that respondent needed continued therapy
in order to feel “hopeful and responsible” and “to behave in reality, and not return
to this la-la land that he existed in for so many years.” He observed that “[a]
person with [respondent’s] background could easily see a mental health
professional weekly or twice a week, to gain control over the struggles I have
described.” Dr. Levine acknowledged that the nearly four-week intervals between
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respondent’s recent sessions is “dictated more by [respondent’s] ability to pay,
and less by his need,” an unfortunate fact confirmed by respondent.
{¶ 40} We infer from these concessions that respondent actually needs
greater psychiatric oversight than he can currently afford. This leaves us in some
doubt as to whether respondent can and will fully sustain the treatment regimen
that his psychiatrist insists is crucial for him to control his abnormal sexual
impulses. We order respondent’s indefinite suspension from practice and rely on
the reinstatement process to determine when respondent is capable of practicing
within ethical constraints. On the other hand, we also see no reason to prevent
respondent from attempting to qualify for reinstatement beyond the two-year bar
imposed by Gov.Bar R. V(10)(B) and therefore also afford credit for the interim
suspension of his license.
{¶ 41} Respondent is therefore indefinitely suspended from the practice of
law in Ohio. In addition to the requirements of Gov.Bar R. V(10), respondent
must upon petitioning for reinstatement show proof of (1) his compliance with the
terms of his ordered community control, (2) his compliance with his OLAP
contract, and (3) his continued psychiatric treatment and his ability to return to the
competent, ethical, and professional practice of law. Respondent is further
granted credit for time served under the February 7, 2008 suspension of his
license to practice ordered in In re Ridenbaugh, 116 Ohio St. 3d 1511, 2008-Ohio-
441, 880 N.E.2d 486.
{¶ 42} Costs are taxed to respondent.
Judgment accordingly.
MOYER, C.J., and PFEIFER, O’CONNOR, LANZINGER, and CUPP, JJ., concur.
LUNDBERG STRATTON, J., concurs with the sanction but would not give
credit for time served under the interim suspension.
O’DONNELL, J., dissents and would permanently disbar respondent from
the practice of law in Ohio.
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__________________
Jonathan E. Coughlan, Disciplinary Counsel, and Heather L. Hissom,
Assistant Disciplinary Counsel, for relator.
Richard C. Alkire Co., L.P.A., Richard C. Alkire, and Dean Nieding, for
respondent.
______________________
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