Summary
In Columbus Bar Assn. v. Harris (1982), 1 Ohio St.3d 33, we issued a one-year suspension to an attorney convicted of aggravated assault which is a violation of R.C. 2903.12 and also a fourth-degree felony.
Summary of this case from Muskingum Cty. Bar Assn. v. WorkmanOpinion
D.D. No. 82-18
Decided July 14, 1982.
Attorneys at law — Misconduct — One-year suspension — Acts warranting.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline.
The respondent, James R. Harris, was admitted to the practice of law in this state in April 1972.
On July 22, 1981, respondent pleaded guilty to the offense of aggravated assault in violation of R.C. 2903.12, a felony of the fourth degree. Respondent's sentence to the Columbus Correctional Facility for one to five years was suspended. He was placed on probation conditioned upon his paying a fine of $2,000, serving 15 consecutive weekends at the Franklin County Corrections Center and making full restitution to the victim. On October 19, 1981, respondent was indefinitely suspended from the practice of law pursuant to Gov. R. V(8).
Respondent's conviction was based on an incident which occurred on December 5, 1980. The evidence disclosed that on September 4, 1980, respondent's marriage of 11 years ended in dissolution. Respondent testified that although he went along with the dissolution he did not wish to end his marriage. On December 4, respondent resolved to attempt a reconciliation with his ex-wife, and went to his former home sometime after returning from an out of town business trip at approximately 11:00 p.m. Neither his ex-wife nor his children were there. A short time later he began looking for his ex-wife and children and eventually found his ex-wife's automobile parked in the driveway of a house belonging to a man respondent's ex-wife had dated. Respondent's knocks at the door were unheeded, and he made several telephone calls from booths, which calls were either hung-up immediately after being answered or not answered at all. After a period of time, respondent took his son's baseball bat from the back seat of his car so that he could tap on the pane of a lighted back window he otherwise could not reach. Respondent testified that during this time he became increasingly concerned about the well-being of his ex-wife and children and aggravated by the fact that he was being ignored and could not communicate with his ex-wife. He broke the glass of a door to the garage, reached in, unlocked it and entered the house, through the garage. He eventually reached a bedroom where he found his ex-wife and the owner of the premises. When the owner approached respondent, who still was holding the bat, a fight ensued. The respondent struck the owner with the bat during the course of the altercation and the owner received various serious injuries. The struggle continued downstairs and out of the house. Respondent eventually broke loose and left in his car. Several minutes later respondent was stopped by the police and taken into custody.
The record is replete with testimonials as to respondent's reputation as a respected member of the community. Among those attesting to respondent's moral character were a judge of the Common Pleas Court of Franklin County, a judge of the Franklin County Municipal Court, a Columbus city councilman, numerous Columbus attorneys, a physician, respondent's clergyman of over 20 years, his ex-wife's sister, his psychologist, several clients and other members of the community. Many expressed their belief that respondent's conduct at issue was completely incongruous with his general reputation and character and an isolated incident unlikely to recur. The Franklin County prosecuting attorney, while acknowledging the seriousness and inexcusability of respondent's conduct, also expressed an opinion that respondent's actions were the result of a sudden emotional explosion and not a studied and premeditated act. Respondent's probation officer submitted a favorable report as to respondent's conduct subsequent to his conviction.
The Board of Commissioners on Grievances and Discipline found that respondent had violated DR 1-102(A)(3), but that his conduct on December 5, 1980 did not adversely reflect on his fitness to practice law. DR 1-102(A)(6). It recommended that respondent be suspended from the practice of law for a period of one year commencing October 19, 1981, the date of his suspension pursuant to Gov. R. V(8).
Mr. David S. Bloomfield and Mr. John B. Rohyans, for relator.
Mr. Daniel D. Connor, for respondent.
This court concurs with the board's finding that respondent's actions upon which his conviction was based constituted illegal conduct involving moral turpitude in violation of DR 1-102(A)(3). See Bar Assn. v. Chvosta (1980), 62 Ohio St.2d 429 [16 O.O.3d 452]; 7 American Jurisprudence 2d 140-141, Attorneys at Law, Section 75. The board recommended that respondent be suspended from the practice of law for a one-year period commencing October 10, 1981, the date of his suspension pursuant to Gov. R. V(8). Upon a careful review of the entire record we believe respondent's conduct warrants his suspension from the practice of law for a period of one year commencing on the date of this order.
Judgment accordingly.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES and C. BROWN, JJ., concur.
I believe, at the very least, respondent's conduct mandates he be indefinitely suspended from the practice of law. Consequently, I must dissent from the majority's decision adopting the recommendation of the Board of Commissioners on Grievances and Discipline to suspend respondent from the practice of law for a period of only one year.
DR 1-102(A)(3) provides an attorney shall not "[e]ngage in illegal conduct involving moral turpitude." In determining whether the illegal conduct in question involves moral turpitude, as well as in deciding upon the appropriate disciplinary action which should be taken, one must recognize the higher standard to be applied to an attorney. As stated by this court in Cincinnati Bar Assn. v. Shott (1967), 10 Ohio St.2d 117, at page 131 [39 O.O.2d 110, at 119], "[t]he lawyer, because of his training and position of public trust, must be held to a more strict standard than the layman." Accordingly, some of the crimes involving moral turpitude which this court has determined warrant the sanctions of indefinite suspension or permanent disbarment include embezzlement, concealing stolen motor vehicles, using the mails to defraud, receiving stolen property and larceny by trick. Cleveland Bar Assn. v. Zimmerman (1970), 21 Ohio St.2d 169 [50 O.O.2d 393]; Bar Assn. of Greater Cleveland v. Simpson (1976), 48 Ohio St.2d 120 [2 O.O.3d 274]; Ohio State Bar Assn. v. Mackay (1976), 46 Ohio St.2d 81 [75 O.O.2d 155]; Cincinnati Bar Assn. v. Klatch (1971), 25 Ohio St.2d 241 [54 O.O.2d 367]; Cleveland Bar Assn. v. Corrigan (1971), 25 Ohio St.2d 290 [54 O.O.2d 395].
I fail to understand how this court can justify indefinitely suspending or disbarring an attorney for the non-violent crimes perpetrated in the above-cited cases while merely suspending this respondent from the practice of law for a period of only one year for committing a crime of violence against another individual. Once an individual has a felony record, this court should seriously consider only disbarment but certainly nothing less than indefinite suspension. Our position should be made clear, the noble profession of the law has no place for convicted felons.
While the board recommends respondent be suspended from the practice of law for one year it is well-accepted such a recommendation is not binding upon this court. See Cleveland Bar Assn. v. Fleck (1961), 172 Ohio St. 467 [17 O.O.2d 458]. Accordingly, I feel respondent's conduct clearly requires the imposition of a harsher penalty, i.e., indefinite suspension or disbarment. In my opinion a convicted felon, i.e., a person either found guilty after trial or one who pleads guilty to a felony, should lose his license and the privilege of practicing law, at the very least, for an indefinite period.