Opinion
D.D. No. 83-2
Decided June 22, 1983.
Attorneys at law — Misconduct — Permanent disbarment — Convictions for securing writings by deception and misapplication of funds from a federally insured bank — Misuse of clients' funds — Quantum of proof required to warrant discipline or disbarment.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline.
On July 21, 1982, relators, Pickaway County Bar Association and the Office of Disciplinary Counsel, filed a complaint before the Board of Commissioners on Grievances and Discipline (hereinafter "board") against respondent, David L. Kraft. The complaint alleged that respondent's convictions in the Court of Common Pleas of Pickaway County following guilty pleas on four counts of violating R.C. 2913.43 (securing a writing by deception) constituted punishable misconduct under DR 1-102(A)(3), (4), (5), and (6) and DR 9-102 of the Code of Professional Responsibility. A supplemental complaint was filed on November 2, 1982, alleging violations of these same disciplinary rules based upon the respondent having agreed to enter a plea of guilty in the United States District Court for the Southern District of Ohio to a violation of Section 656, Title 18, U.S. Code (misapplication of funds from a federally insured bank).
Respondent's answer to both the initial and supplemental complaints acknowledged that the complaints accurately set forth the substance of both the indictments and the federal information, and either the certified judgment of respondent's eventual convictions or the plea agreement he agreed to enter on the offenses charged. The respondent, however, requested a hearing as to the allegation that the occurrences constituted violations of the disciplinary rules specified.
The matter came on for hearing before the board on November 22, 1982. The respondent was represented by counsel, and at his request, the hearing was conducted as a private matter.
At the hearing, relators introduced certified copies of the records of the Court of Common Pleas of Pickaway County and the United States District Court for the Southern District of Ohio, as referred to in the complaint and supplemental complaint. Respondent offered no evidence bearing on the issue. No witnesses were called by either party.
As evidenced by the proffered indictments, the state criminal case stemmed from respondent's misuse of significant funds entrusted to him by his clients in his capacity as their attorney; the federal charge pertained to respondent's conduct as a Director of the Ashville Bank, where he willfully and knowingly misapplied $216,500 by fraudulently causing the funds to be disbursed and then converting such funds to his own personal use.
These four felony charges involved amounts of $40,000, $220,000, $250,000, and $425,000.
The board found that such conduct violated DR 1-102(A)(3), (4), (5) and (6) and DR 9-102 as to both the initial and supplemental complaints, and recommended that respondent be permanently disbarred from the practice of law.
Respondent filed objections to the board's findings and recommendations and a brief in support of objections, alleging that the evidence was insufficient to support the board's finding that respondent engaged in conduct violative of the disciplinary rules specified.
Mr. Angelo J. Gagliardo, disciplinary counsel, Mr. Charles W. Kettlewell and Ms. Kathryn Haller, for relator Office of Disciplinary Counsel.
Mr. Allen Berger, for relator Pickaway County Bar Assn.
Messrs. Cassidy Meeks, Mr. Paul D. Cassidy and Mr. R. William Meeks, for respondent.
Respondent claims that "evidence presented in the form of certified exhibits, even though acknowledged in the answers as accurate records of the Courts, does not, in the absence of testimony or some other form of proof, establish that Respondent engaged in specific conduct sufficient to constitute violations of misconduct under DR 1-102(A)(3), (4), (5) and (6) and DR 9-102." We disagree.
It is well-established that an attorney's conduct need not be criminal to subject him to disciplinary procedures. Accordingly, the quantum of proof required to warrant discipline or disbarment is different from that demanded for conviction of a criminal charge. Ohio State Bar Assn. v. Weaver (1975), 41 Ohio St.2d 97, 100 [70 O.O.2d 175]. This court has previously held that certain conduct, as evidenced from the transcript of the convictions themselves, warrants professional discipline. E.g., Ohio State Bar Assn. v. Moore (1976), 45 Ohio St.2d 57 [74 O.O.2d 84]; Dayton Bar Assn. v. Prear (1964), 175 Ohio St. 543 [26 O.O.2d 220]. Applying this principle to the present case, we find that the documents submitted into evidence herein were sufficient to establish the underlying factual matters which served as the basis for the criminal convictions and which allegedly constitute misconduct under the disciplinary rules.
Upon a review of all the facts and circumstances as presented to the board and after careful consideration of respondent's objections, this court finds that respondent has violated DR 1-102(A)(3), (4), (5) and (6) and DR 9-102, and concurs with the recommendation of the board.
It is the judgment of this court that respondent be permanently disbarred from the practice of law.
Judgment accordingly.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and J.P. CELEBREZZE, JJ., concur.