Summary
In Cleveland Bar Assn. v. Fatica (1971), 28 Ohio St.2d 40, this court permanently disbarred an attorney convicted of soliciting and accepting a bribe.
Summary of this case from Medina County Bar Assn. v. HaddadOpinion
No. D.D. 71-5
Decided November 3, 1971.
Attorneys at law — Misconduct — Permanent disbarment from practice of law — Acts warranting — Bribery.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline.
In February 1964, respondent, an attorney at law duly admitted to practice in Ohio, was engaged in the practice of law in the city of Cleveland and also held the office of city councilman, then serving his second two-year term as councilman for Ward 19.
R.C. 4303.261, enacted by the Ohio General Assembly, effective September 16, 1963 (130 Ohio Laws 1006), provides that the Director of Liquor Control shall notify the clerk of the legislative authority of a municipal corporation of the filing of any application for the issuance or transfer of certain liquor permits for a place of business within the corporate limits of the municipal corporation; authorized the legislative authority, by resolution, to object to the issuance of the permit "as to the reputability of the applicant or as to the suitability of the location," and to send a certified copy of such resolution to the director. It also provides for a hearing in the event such objections were made, at which the "legislative authority * * * shall give testimony in support of its written objection."
One Gus Stassis filed an application for transfer of a liquor license from a downtown area to a location at 116th Street and Euclid Avenue, within Ward 19. After objection was made to respondent by a person or persons within the ward, the city council apparently adopted a resolution objecting to such transfer. Thereafter, a hearing was scheduled before a referee in the Department of Liquor Control. Prior to the hearing, according to respondent, Stassis sent several emissaries to see him requesting that he withdraw his objections, to which respondent replied that he was merely objecting on behalf of certain constituents, that the objection was filed and that "it is up to the board what they will do."
Respondent appeared and testified at the hearing. Thereafter, the Director of Liquor Control denied the transfer of the permit.
Subsequent to the denial of the application for transfer, respondent, after first discussing the matter with an intermediary, one Tony Cesa, met with Stassis. Respondent claims that Stassis persuaded him to act as his attorney to obtain transfer of the permit; that he agreed to do so for a fee of $5,000, $1,500 to be paid in cash, and the balance of $3,500 in a promissory note payable one year after receipt of the liquor permit.
At sometime prior to February 18, 1964, the day scheduled for the payment of the $1,500, Stassis had contacted the police. On February 18, 1964, Stassis, "wired for sound," met with respondent and paid him $1,500, at which time the police walked in and arrested respondent.
He was indicted, both for soliciting and for accepting money, to "influence him (Fatica) with respect to his official duty, or to influence his (Fatica's) action, vote, opinion or judgment" (R.C. 2917.01) relative to "withdrawing his objection and opposition as a councilman and as a member of the legislative authority of the city of Cleveland, to the application and transfer of a state liquor permit to 11611 Euclid Avenue, Cleveland, Ohio."
Subsequently, respondent was convicted, but the conviction was reversed upon appeal because of comment by the prosecutor on the failure of respondent to testify. At a second trial, respondent was again convicted. No appeal was taken and on March 29, 1968, respondent was placed on two years' probation.
Apparently because respondent, on February 1, 1965, had agreed in writing to refrain from the practice of law during the pendency of all appellate proceedings, relator, the Cleveland Bar Association, filed no formal charges until October 8, 1970, subsequent to the expiration of respondent's two-year probation, and after respondent had informed the Association in May 1970 of his desire to re-enter the practice of law.
After a hearing before a panel of the Board of Commissioners on Grievances and Discipline, the board recommended that respondent be permanently disbarred from the practice of law.
The matter is now before this court for consideration of the report of the board and the objections of the respondent.
Mr. William A. Klein, Mr. Thomas P. Meaney, Jr., and Mr. Gordon T. Canning, for relator.
Mr. George H. Faust, for respondent.
While formally conceding that his "conviction of a crime involving moral turpitude" (Rule XVIII [5] [a], Rules of Practice of this court) requires some disciplinary action, it is asserted on behalf of respondent that his actions constituted merely a "mistake in judgment" warranting only a public reprimand.
The testimony heard by the panel consisted essentially of witnesses as to respondent's good character, both before and after 1964; the testimony of a psychologist who tested respondent just prior to the hearing and who expressed the opinion that respondent "asserts to be a person of good character" and "does not present as a person with a character defect"; and the testimony of respondent himself.
Basically, the testimony of respondent, as well as that of his character witnesses, portrays a person of exemplary qualities, who made a single unfortunate mistake, who has paid his debt to society therefor, and who should not be further punished by disbarment from the practice of law.
The concept of disbarment is that it is not a matter of punishment to the individual so involved. Essentially, considerations of public protection and the good name of an ancient and honored profession are involved.
While conviction of a crime involving moral turpitude does not automatically require permanent disbarment, but may under some circumstances warrant only the lesser penalty of indefinite suspension, we know of no case where such a conviction has been followed by a mere public reprimand by this court. See Lawyer Discipline: The Ohio Story, by Professor Oliver Schroeder, Jr., wherein our disciplinary cases are digested and summarized.
Moreover, the degree of "moral turpitude" is of vital concern in evaluating the damage done to the public confidence so essential to a working interrelationship between the bench, the bar, and the public.
From a careful review of the evidence it appears that, even now, respondent either does not fully appreciate or fails to acknowledge the extent to which he violated basic principles of professional conduct. He still insists that his relationship to Stassis was merely that of attorney and client, and that if only he had had the opportunity of another council meeting, after February 18, 1964, he could have "revealed his position on representing of Stassis to council."
A civilized society cannot long remain without implicit confidence in those who occupy responsible positions of public trust, including both public officials, and members of the bar who are "officers of the court." The solicitation and acceptance of a bribe by such a person is, by its very nature, so serious as to warrant, if not to compel, permanent removal from such a position of trust.
The General Assembly has prescribed disqualification from "public office or appointment under this state" for all persons convicted of a violation of R.C. 2917.01. Thus respondent may never again occupy public office regardless of whether he has otherwise "paid his debt to society" by meeting the terms of his probation, and regardless of "rehabilitation."
While such disqualification from public office is not binding on this court in imposing discipline upon attorneys, the same considerations, except in the most unusual circumstances, should impel this court to permanently disbar those convicted of soliciting and accepting bribes to influence their public duties.
Applying those considerations to this case, the report of the board is confirmed, and judgment is rendered permanently disbarring respondent from the practice of law.
Report confirmed and judgment accordingly.
O'NEILL, C.J., SCHNEIDER, HERBERT, DUNCAN, STERN and LEACH, JJ., concur.
CORRIGAN, J., not participating.