Summary
indicating that an attorney was indefinitely suspended for participation in a drug smuggling operation while in law school and prior to admission, although not convicted until after admission
Summary of this case from In the Matter of Ronald D. MikusOpinion
No. D.D. 88-15
Submitted September 27, 1988 —
Decided December 14, 1988.
Attorneys at law — Misconduct — Indefinite suspension — Convictions of conspiring to sell marijuana and tax evasion based on events which occurred before respondent became attorney.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Supreme Court, No. 31-86-B.
Relator, Disciplinary Counsel, filed the instant complaint against respondent, Jonathan F. Clark, alleging that he had pleaded guilty to and been convicted of conspiring to sell, give or distribute more than five pounds of marijuana in violation of Commonwealth of Virginia Code Sections 18.2-256 and 18.2-22, a felony, and that he had thereby violated DR 1-102(A)(3) (engaging in illegal conduct involving moral turpitude) and DR 1-102(A)(6) (engaging in conduct that adversely reflects on an attorney's fitness to practice law). Relator thereafter amended the complaint by adding a second count alleging that respondent had pleaded guilty to and been convicted of tax evasion in violation of Section 7201, Title 26, U.S. Code, another felony. Count II similarly charged that this conduct violated DR 1-102(A)(3) and 1-102(A)(6).
Respondent answered the amended complaint by admitting both convictions. However, he also moved to dismiss the action on the ground that the complaint failed to state an offense for which respondent could be subjected to professional sanctions. Respondent's motion was overruled and the matter was subsequently heard by a panel of the Board of Commissioners on Grievances and Discipline of the Supreme Court.
The events leading to respondent's convictions are not in dispute. While attending the University of Toledo, College of Law, respondent was involved in an international drug smuggling ring. Sometime in 1982, he helped unload approximately 11,500 pounds of marijuana from a boat docked in Middlesex County, Virginia, so that the marijuana could be distributed for sale under the supervision of Steve Coghlin, one of respondent's high school friends. Prior to the boat's arrival, respondent lived in a "safe house" for approximately one month in order to make the house look occupied and thus conceal the purpose for which it had been rented — mainly to receive large deliveries of marijuana. After respondent returned to the Toledo area, respondent assisted Drew Burkhart, one of the others who had unloaded the marijuana, in removing the inner workings of two newly purchased television sets and filling them with money so that the money could be transported secretly. Respondent was paid $40,000 for his efforts.
In 1983, the year before respondent graduated from law school, Coghlin asked respondent to hold at least $1,000,000 for safe keeping as Coghlin wanted to avoid having such a large sum in his possession with others knowing about it. Respondent stored the currency for about three weeks. During that period, he prepared bundles of money to be used in paying people involved in Coghlin's operation. Pursuant to another Coghlin request, respondent also placed approximately $500,000 of the currency in gutted television sets and transported the sets in a rented car to Florida so that they could be shipped to Colombia. Respondent received $20,000 for performing these tasks.
Respondent graduated from law school in late May 1984, about the time of Coghlin's arrest for his drug smuggling ventures. Respondent went on to take and pass the July 1984 bar examination. After taking his professional oath, respondent was admitted to the practice of law in Ohio in November 1984.
Respondent was thereafter convicted in 1986 for his 1982 activities by the Circuit Court of Middlesex County, Virginia. In 1987, he was convicted for his 1983 activities by the United States District Court for the Northern District of Ohio, Western Division. Respondent was automatically suspended from the practice of law in Ohio pursuant to Gov. Bar R. V in May 1985.
Based on the foregoing facts, the panel concluded that respondent had violated DR 1-102(A)(3) and 1-102(A)(6). Before making its recommendation, the panel considered, among other things, respondent's expression of remorse, and the mitigating testimony of his minister and that of one of his employers. Also submitted for the panel's review was a substantial collection of correspondence in which the writers described respondent's character favorably and supported respondent's readmittance to the Ohio Bar. Thereafter, the panel recommended that respondent be indefinitely suspended from the practice of law in Ohio. The board, however, rejected the panel's recommendation, and recommended that respondent be permanently disbarred.
Swidler Berlin, Andrew L. Lipps and Henry Kishman, for relator.
J. Warren Bettis, disciplinary counsel, and Karen B. Hull, for respondent.
The gravamen of respondent's position in this case is twofold. He first contends that since DR 1-102(A) refers specifically to conduct committed by lawyers, this court cannot discipline him for acts committed prior to his being admitted to the bar. Second, respondent asserts that the board's recommendation of permanent disbarment is unduly harsh.
DR 1-102(A) provides, in pertinent part:
"A lawyer shall not:
"* * *
"(3) Engage in illegal conduct involving moral turpitude.
"* * *
"(6) Engage in any conduct that adversely reflects on his fitness to practice law."
Respondent emphasizes that he committed his illegal acts prior to attaining his attorney status. Therefore, according to his argument, he has not engaged in any illegal conduct as a lawyer, such that DR 1-102(A)(3) may be applied to him. Respondent raises a similar claim with respect to his having violated DR 1-102(A)(6).
However, because respondent was convicted for his offenses after he became a member of the Ohio Bar, we do not find it necessary to pass upon whether he may be disciplined for conduct committed before his admission. Clearly, an attorney's conviction of felony charges relating to drug smuggling and tax evasion reflects adversely on his fitness to practice law. Furthermore, we find respondent's violation of DR 1-102(A)(6) so serious that it warrants severe disciplinary measures, regardless of whether he also violated DR 1-102(A)(3).
However, in light of the mitigating evidence presented, we do not consider permanent disbarment an appropriate sanction under these circumstances. Respondent has not been shown to be so lacking in character and fitness that he should be forever forbidden from regaining his professional status. Accordingly, we order that respondent be suspended indefinitely from the practice of law in Ohio and that he pay the costs of this proceeding.
Judgment accordingly.
MOYER, C.J., SWEENEY, LOCHER, DOUGLAS and H. BROWN, JJ., concur.
HOLMES and WRIGHT, JJ., dissent.
Under the circumstances of this case, I would permanently disbar the respondent.
WRIGHT, J., concurs in the foregoing dissenting opinion.