Summary
suspending an attorney for one year for his participation in a ticket-fixing operation that resulted in his conviction for misdemeanor offenses
Summary of this case from Disciplinary Counsel v. MartinezOpinion
No. D.D. 88-6
Submitted July 27, 1988 —
Decided October 19, 1988.
Attorneys at law — Misconduct — One-year suspension — Convictions of attempted tampering with records, falsification, and attempted obstruction of justice.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Supreme Court, No. 13-87-B.
On May 8, 1987, relator, Disciplinary Counsel, filed a complaint against respondent, Michael John Smakula, alleging that respondent had been convicted of three misdemeanors: attempted tampering with records, in violation of R.C. 2923.02 and 2913.42; falsification, in violation of R.C. 2921.13(A)(1); and attempted obstruction of justice, in violation of R.C. 2923.02 and 2921.32. Relator charged that respondent had thereby violated DR 1-102(A)(3) (illegal conduct involving moral turpitude), 1-102(A)(4) (conduct involving dishonesty, fraud, deceit, or misrepresentation), and 1-102(A)(5) (conduct prejudicial to the administration of justice). In his answer, respondent admitted to the convictions, but requested permission to offer mitigating evidence. Accordingly, the matter was heard by a panel of the Board of Commissioners on Grievances and Discipline of the Supreme Court on December 7, 1987.
Respondent was admitted to the practice of law in Ohio in 1976. He joined the Cuyahoga County Prosecutor's office as an assistant prosecutor in 1977. While working in that office, respondent became acquainted with Harry M. Darmour, a bailiff for one of the judges of the Court of Common Pleas of Cuyahoga County.
Over the next eight years, respondent and Darmour became friends. Darmour, however, was involved in an alleged traffic-ticket fixing operation in which he would arrange for the dismissal or "killing" of traffic-related charges. While the details of this operation are not clear from the record, it seems that Darmour made rounds to various restaurants and other locations on Saturday mornings in order to do "favors" for his "clients."
Respondent began accompanying Darmour on his regular Saturday routes. Respondent testified that he never saw Darmour take money on these occasions and that he believed that Darmour was paying the fines and court costs out of his own pocket. Respondent explained that he went with Darmour because Darmour would sometimes need "help" with his "business." In these instances, Darmour would refer defense work to respondent. Because respondent hoped to build a private practice, he accepted the cases that Darmour gave him.
The criminal charges resulted from an April 1985 meeting that respondent had arranged between Darmour and another assistant prosecutor. The meeting was arranged because the assistant prosecutor had a client who had received two traffic tickets, one of which required an appearance in the Parma Municipal Court, and the client did not want to miss work in order to appear. The meeting took place on a Saturday in a Parma beverage store. Present in the back room of the store that day were respondent, the other assistant prosecutor, Darmour, and George Novicky, then a Parma Municipal Court Judge. After Darmour invited respondent and the other prosecutor to walk outside the store, he told them that he needed $100 to "kill" the client's tickets. At that point, the other prosecutor reconsidered "do[ing] business" with Darmour and rejected the deal. The client's tickets were dismissed the following week, however, without his making an appearance.
Novicky later resigned from the municipal court bench and surrendered his certificate of admission to the Bar of Ohio because of this transaction.
Thereafter, respondent was questioned in connection with an investigation that was being conducted by the Federal Bureau of Investigation and the Cuyahoga County Prosecutor into Darmour's activities. Although respondent was cautioned about discussing the investigation with anyone, he called Darmour after his session with an FBI agent. Respondent claimed that he contacted Darmour because he was incensed that Darmour, a friend, had involved him in Darmour's criminal scheme. Respondent attested that he did not call to warn Darmour about the investigation.
Respondent was discharged from his position as an assistant prosecutor and was later indicted for his participation in Darmour's ticket-fixing operation. Respondent ultimately pled guilty to the three misdemeanor charges pursuant to a plea agreement and was sentenced to a total of ninety days in the Cuyahoga County Jail. Respondent's sentence was subsequently reduced, however, and he was ordered to complete one hundred twenty-five hours of community service for the Legal Aid Society of Cleveland.
Criminal charges were also brought against Darmour and Novicky.
In light of the foregoing evidence, the board found that respondent had violated DR 1-102(A)(3), 1-102(A)(4), and 1-102(A)(5). In so finding, the board noted that respondent's misconduct was largely the result of his naivete and poor judgment. Before making its recommendation, the board considered the testimony of character witnesses, including that of a Cuyahoga County court of common pleas judge and a Cuyahoga County court of appeals judge, who testified that respondent was a competent, honest and fair attorney. The board also had before it respondent's testimony that he received no money from Darmour other than that to which he was entitled for legal services. The board recommended that respondent be suspended from the practice of law in Ohio for one year.
J. Warren Bettis, disciplinary counsel, and Mark H. Aultman, for relator.
Gold, Rotatori, Schwartz Gibbons Co., L.P.A., and Gerald S. Gold, for respondent.
This court concurs in the board's findings and its recommendation. Respondent is hereby suspended from the practice of law in Ohio for one year. Costs taxed to respondent.
Judgment accordingly.
MOYER, C.J., SWEENEY, LOCHER, HOLMES, DOUGLAS, WRIGHT and H. BROWN, JJ., concur.