Summary
holding that conviction for soliciting a prostitute to engage in sexual activity for hire was prejudicial to the administration of justice
Summary of this case from Board of Professional Ethics v. LyzengaOpinion
No. 90-1132
Submitted July 31, 1990 —
Decided December 19, 1990.
Attorneys at law — Misconduct — Public reprimand — Convictions on charges of impersonating a peace officer and soliciting to engage in sexual activity for hire.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Supreme Court, No. 89-68.
On December 18, 1989, relator, Richland County Bar Association, filed a complaint against respondent, James E. Brightbill, based on respondent's recent convictions on charges of impersonating a peace officer and soliciting to engage in sexual activity for hire. Relator charged respondent, inter alia, with violating DR 1-102(A)(3) (engaging in illegal conduct involving moral turpitude) and 1-102(A)(5) (engaging in conduct that is prejudicial to the administration of justice). Respondent, in his answer filed January 9, 1990, admitted being charged with and convicted of the two offenses and receiving a $500 fine and suspended jail sentences.
A panel of the Board of Commissioners on Grievances and Discipline of the Supreme Court held a hearing on the matter on May 11, 1990. The evidence presented by respondent's counsel tended to show that respondent had a strong aptitude for trial work, but was somewhat naive, based on his rural upbringing. Respondent was also portrayed as curious, based on his daily encounters with the criminal element in Richland County once he began working in the prosecutor's office. Respondent admitted to consorting with prostitutes on four or five occasions during the nine months he worked at the prosecutor's office. He admitted to carrying a wallet with his assistant county prosecutor badge pinned to the inner trifold pocket, which was distinctly visible when his wallet was open; however, he stated that he did not hold himself out at any time to be a police officer. Respondent admitted that he was driving a county car on one occasion in which he engaged in sexual activity with a prostitute. Respondent also admitted asking the prostitutes he engaged to return his money to him, but states he did not attempt to coerce them to do so.
Respondent claimed he pled no contest to the criminal charges to avoid a public trial and for personal reasons. As a result of the charges, respondent was dismissed from the prosecutor's office and returned to work at the family dairy farm in Loudonville. Respondent has not practiced law since he was charged with the offenses. Respondent's ordeal was closely followed by the press and, besides costing respondent his job, it cost him the friendships of many of his peers. Respondent underwent psychological counseling after his convictions, which he testified helped him to realize that he committed the sexual offense due to excessive alcohol use and loneliness.
The panel noted that the evidence presented on respondent's charge of impersonating a peace officer could not result in a conviction because the badge at issue was not one of a peace officer. However, the panel felt itself bound by respondent's no contest plea and subsequent conviction and concluded that respondent had violated DR 1-102(A)(3) and (5). The panel recommended that respondent be suspended from the practice of law for one year. Upon review, the board agreed with the panel's findings of misconduct, but recommended a public reprimand because the misconduct did not directly relate to the practice of law and because of the trauma respondent had already experienced due to the charges, the lack of clear and convincing evidence that respondent used his position to intimidate prostitutes, and the favorable character testimony.
William Travis McIntyre, for relator.
David L. Kitzler, for respondent.
We agree with the board's findings and recommendation and hereby publicly reprimand respondent for his misconduct. Costs taxed to the respondent.
Judgment accordingly.
SWEENEY, HOLMES, DOUGLAS and H. BROWN, JJ., concur.
MOYER, C.J., WRIGHT and RESNICK, JJ., dissent.
I would suspend respondent from the practice of law in the state of Ohio for a period of six months.
I concur in the thrust and substance of Justice Resnick's dissent but not in her proposed penalty of indefinite suspension. Instead, I would suspend respondent for one year.
I vehemently dissent from the majority's granting of a public reprimand in this case. Respondent admitted that he has engaged in illicit sexual conduct with prostitutes on several occasions. Most egregious was the fact that apparently on one occasion, while using a county vehicle, he engaged the services of a prostitute and reportedly attempted to use his position as an assistant prosecutor to avoid paying for this illegal activity.
Respondent has admitted to being charged with and convicted of impersonating a peace officer and soliciting to engage in sexual activity for hire. This behavior brought disgrace not only to respondent but to the prosecutor's office and the entire legal profession. The board, in recommending a public reprimand, commented that respondent's misconduct did not directly relate to the practice of law. This statement is without foundation in fact. A lawyer's personal activities, especially those involving criminal conduct, cannot be separated from the practice of law, particularly where the conduct involves moral turpitude and is prejudicial to the administration of justice. Respondent was in fact found to have violated DR 1-102(A)(3) and (5). Due to the nature of the conduct involved herein, a public reprimand is inappropriate in my opinion. I would therefore indefinitely suspend Mr. Brightbill from the practice of law.