Opinion
No. 92-2161
Submitted February 3, 1993 —
Decided May 12, 1993.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Supreme Court, No. 91-21.
On November 8, 1990, respondent, James R. Columbro of Westlake, Ohio, Attorney Registration No. 0000420, pled guilty to twenty counts of drug abuse in violation of R.C. 2925.11, and sixteen counts of theft in office in violation of R.C. 2921.41. Respondent was fined $100, and sentenced to one and one-half years in prison.
The facts giving rise to respondent's criminal convictions involve respondent's actions while an assistant prosecuting attorney for Cuyahoga County. Respondent, professing to need the evidence in criminal cases in which he was involved, would "sign-out" cocaine held as evidence by the Cleveland Scientific Investigation Unit ("SIU"). This activity continued until sometime in 1990 when respondent returned a packet of evidence that revealed that the heat seal on the packet had been breached, and cocaine was missing from the packet. It was determined, and respondent admitted, that he had, on various occasions, taken cocaine from the SIU for his personal drug dependency.
The record indicates that respondent's primary responsibilities concerned rape and murder cases, and not drug cases.
On January 16, 1991, this court indefinitely suspended respondent from the practice of law pursuant to former Gov.Bar R. V(9)(a)(iii), and ordered the matter referred to relator, Office of Disciplinary Counsel, for investigation and commencement of disciplinary proceedings. Relator, on August 5, 1991, filed a two-count complaint with the Board of Commissioners on Grievances and Discipline of the Supreme Court ("board") against respondent, alleging that respondent violated 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 prejudicial to the administration of justice); and 1-102(A)(6) (engaging in conduct that adversely reflects on one's fitness to practice law).
Thereafter, the parties submitted joint stipulations in which respondent admitted to pleading guilty to various counts involving drug abuse and theft in office. Respondent also admitted that his conduct constituted violations of DR 1-102(A)(3), (4), (5) and (6). Further, each party recommended, inter alia, a sanction of indefinite suspension.
On April 3, 1992, a panel of the board held a hearing with respect to relator's complaint. At the hearing, respondent essentially explained that in order to cope with certain personal problems and various job-related pressures, he began to drink heavily. Respondent further explained that this activity continued until he developed an ulcer, at which time the physical pain and discomfort as a result of consuming alcohol became so great respondent could no longer drink. Thereafter, respondent sought cocaine, by way of the SIU, in order to cope with everyday problems and pressures. Respondent also maintained that all cocaine taken by him from the SIU was used only for his personal consumption, and that the evidence taken did not involve pending criminal cases. Additionally, respondent presented character letters from numerous attorneys, all of whom praised respondent's competency and integrity as an attorney and prosecutor.
Evidence submitted by the relator mainly focused on when the cocaine was taken by respondent from the SIU. Relator presented a witness who, for the most part, testified that at least one, and possibly a total of three, criminal convictions occurred after the respondent had removed cocaine from the SIU. The relator, however, did not present any evidence demonstrating that any rights were violated or that any prosecutions were compromised as a result of respondent's actions.
At the conclusion of the hearing, relator recommended that respondent be indefinitely suspended from the practice of law without credit for time served. Respondent agreed that an indefinite suspension was proper, but requested that credit be given for the period of time already served.
Based on the evidence presented, the panel found that respondent violated DR 1-102(A)(3), (4), (5) and (6). The panel concluded that respondent's actions were more "egregious" than the situation found in Akron Bar Assn. v. Chandler (1992), 62 Ohio St.3d 471, 584 N.E.2d 677, and recommended that respondent be permanently disbarred from the practice of law. The conclusions reached by the panel were based on the fact that respondent had pled guilty to multiple counts of theft in office, and that respondent, at the time of the Disciplinary Rule violations, was an assistant prosecutor.
The board adopted the panel's findings of fact, conclusion of law and recommendation. The board further recommended that costs be taxed to respondent.
J. Warren Bettis, Disciplinary Counsel, and Karen B. Hull, Assistant Disciplinary Counsel, for relator.
Charles W. Kettlewell, for respondent.
This court finds that respondent violated DR 1-102(A)(3), (4), (5) and (6). Respondent's actions were without question serious and, as such, warrant a serious sanction. However, we have difficulty finding that the situation here is more egregious, thereby warranting a greater sanction, than that found in Akron Bar Assn. v. Chandler, supra.
As an assistant prosecutor, respondent was indeed an entrusted public servant. However, it should be emphasized that all attorneys who practice law in this state are required to maintain the utmost degree of integrity, honesty, and competence. Any Disciplinary Rule violation by any attorney licensed in this state, whether by an attorney who happens to be an assistant prosecutor or an attorney who is in private practice, is a discredit to the profession, reflecting negatively on the judicial system as a whole.
The record before us reveals that respondent's violations were a product of his substance dependency. It appears that respondent has cooperated fully with all authorities. Further, respondent has admitted to his addiction, has sought professional help, and it appears, at this juncture, that respondent has begun to make some inroads towards rehabilitation.
Our review of the record, together with the sanction imposed in Chandler, and cases cited therein, convince us that the proper sanction in this case is an indefinite suspension. Our conclusion, however, is not intended to convey that we are not aware of the severity of the respondent's conduct. We are — but it should also be remembered that an indefinite suspension does not guarantee reinstatement at the conclusion of a two-year period. When an application for reinstatement from an indefinite suspension is filed, consideration as to reinstatement is then given based upon the facts as they are known and exist at the time of the filing of the petition for reinstatement.
It is our belief that to take all hope away from this, as the record reflects, recovering individual, would not be tempering justice with mercy. Accordingly, it is ordered that respondent be indefinitely suspended from the practice of law in this state, and that respondent not be granted credit for time already served. Costs taxed to respondent.
Judgment accordingly.
A.W. SWEENEY, DOUGLAS, WRIGHT, RESNICK and F.E. SWEENEY, JJ., concur.
MOYER, C.J., and PFEIFER, J., dissent.
I respectfully dissent from the decision of the majority and would adopt the recommendation of both the Board of Commissioners on Grievances and Discipline and its panel.
The majority relies upon Akron Bar Assn. v. Chandler (1992), 62 Ohio St.3d 471, 584 N.E.2d 677, in "tempering justice with mercy" because the majority has "difficulty finding that the situation here is more egregious, thereby warranting a greater sanction," than that found in Chandler, supra.
In Chandler, respondent pleaded guilty in federal court to the fifth count of an indictment charging him with knowingly or intentionally distributing cocaine. The board found that the respondent had become a substance abuser and had apparently engaged in a "low level" enterprise to distribute cocaine as a means of supporting his dependency. Relator, Akron Bar Association, and the board's panel both recommended an indefinite suspension, but the board recommended a permanent disbarment.
The difference in the conduct of the attorney in Chandler and the attorney here is profound. Chandler engaged in the "low level" enterprise of distributing cocaine to maintain his addiction. Columbro used his access, his position of trust as an assistant prosecuting attorney, to remove cocaine from the place where evidence was held pending trial. The fact that the record reflects no actual impact on the prosecution of a case is hardly mitigating of respondent's conduct in support of his personal drug dependency. Unlike Chandler's plea to a single count, respondent here pled guilty to twenty counts of drug abuse and sixteen counts of theft in office.
The question is not, as the majority suggests, whether respondent can perhaps rehabilitate himself from his drug dependency. The issue is whether this court should, as recommended by the board, draw a line on misuse of public office where there is a potential impact upon the evidence available for prosecution in pending cases.
The panel and the board offered a bright-line message; we should apply it and disbar respondent for his blatant abuse of his public office.
PFEIFER, J., concurs in the foregoing dissenting opinion.