Opinion
No. 89-1237
Submitted November 8, 1989 —
Decided February 21, 1990.
Attorneys at law — Misconduct — Permanent disbarment — Obstruction of justice — Obtaining and keeping contraband sought by federal authorities.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Supreme Court, No. 88-46.
On March 10, 1987, respondent, Arthur E. Freedman, arrived at James Marthaler's home just as federal agents were concluding a search, with warrant, for cocaine. Respondent introduced himself as Marthaler's attorney.
The agents told respondent that they had seized cocaine and money and that Marthaler had agreed to cooperate and had already begun to do so. The agents agreed to meet with respondent and Marthaler the next day to negotiate a plea and for Marthaler to implicate others in drug offenses. The agents left.
Respondent and Marthaler then traveled to a bar. There Marthaler told respondent that the agents had not found everything they were looking for. Respondent and Marthaler returned to the house. Marthaler obtained a briefcase and a container holding approximately eight ounces of cocaine.
Both entered respondent's Corvette automobile and respondent drove away. During the ride, Marthaler removed the cocaine from the container and placed it in the briefcase. At Marthaler's request, respondent drove to a dumpster where Marthaler discarded the empty container. Marthaler gave the briefcase to respondent, who believed it contained papers, money, and cocaine. Respondent agreed to hold the briefcase for Marthaler so that the federal agents could not locate and seize it. Respondent planned to return the cocaine to Marthaler.
On March 11, at dinner, Marthaler confirmed for respondent that the briefcase contained cocaine, and respondent confirmed his plan to hold and then return the cocaine to Marthaler to prevent its discovery by the federal agents.
On March 12, federal agents, after receiving a tip, seized the briefcase and cocaine from respondent. Respondent had known that the agents were on their way to seize the briefcase but did not tamper with the case. He then voluntarily transferred the briefcase and its contents to the agents.
Subsequently, respondent pled guilty to one count of obstruction of justice under Sections 2 and 1503, Title 18, U.S. Code. He was sentenced to two years of incarceration and fined $50. Also, his Corvette was seized by the government.
On December 21, 1988, the Cincinnati Bar Association, relator, filed a complaint in which it alleged that these activities constituted a violation of DR 1-102(A)(3) (engaging in illegal conduct involving moral turpitude), 1-102(A)(4) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), 1-102(A)(5) (engaging in conduct that is prejudicial to the administration of justice), 1-102(A)(6) (engaging in any other conduct that adversely reflects on fitness to practice law), and Canon 9 (failing to avoid the appearance of professional impropriety). Later, relator conceded that "the gravamen of our case is not Canon 9."
Respondent admitted all the factual allegations contained in the complaint and admitted a violation of DR 1-102(A)(3). However, respondent denied violations of DR 1-102(A)(4), (5), (6) and Canon 9. A panel of the Board of Commissioners on Grievances and Discipline of the Supreme Court ("board") concluded that respondent violated DR 1-102(A)(3), (4), (5) and (6), and recommended that respondent be permanently disbarred, relying on ABA Standards for Imposing Lawyer Sanctions (1986) 36, Rule 5.11(a), which encourages disbarment if a lawyer engages in serious criminal conduct a necessary element of which includes an intentional interference with the administration of justice. The board adopted the panel's findings of fact and conclusions of law but recommended, instead, that respondent be indefinitely suspended. The board felt that respondent's conduct, although serious, was an isolated incident and that he should be given an opportunity to demonstrate his rehabilitation.
D. Michael Poast, Hollis A. Moore III, Constance A. Hill, Edwin W. Patterson III and W. Deems Clifton II, for relator.
James N. Perry, for respondent.
Respondent intended to, and for a short time did, thwart the administration of justice. He obtained and kept contraband which he knew the federal authorities, armed with a search warrant, sought. This is a serious crime. Therefore, we agree with the board's findings of fact and conclusions of law, but order that respondent be permanently disbarred. Costs taxed to respondent.
Judgment accordingly.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT and RESNICK, JJ., concur.
H. BROWN, J., dissents.
In my judgment, indefinite suspension would be the appropriate penalty in this case.