Opinion
D.D. No. 76-9
Decided November 24, 1976.
Attorneys at law — Misconduct — Acts constituting — Disbarment warranted, when.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline.
Respondent, Charles A. Simpson, Jr., was admitted to the Ohio Bar on October 27, 1967, and has since that time practiced law in the city of Cleveland, as well as serving that city as an assistant police prosecutor.
On September 24, 1973, respondent was found guilty by a jury of two counts of concealing stolen motor vehicles, in violation of R.C. 4549.04(E), and of one count of altering automobile identification, in violation of R.C. 4505.19(D), with respect to a third automobile.
Although a complaint was filed by the relator bar association in 1974, the panel of the Board of Commissioners on Grievances and Discipline elected to defer hearing until such time as respondent had exhausted his panoply of appeals, including resort to the United States Supreme Court which denied certiorari.
Ultimately, at a hearing in Cleveland, on July 22, 1976, counsel for the parties stipulated that the crimes respondent had been convicted of involved moral turpitude. The stipulation noted further that respondent had currently pending a petition for a writ of habeas corpus in the United States District Court. At the oral hearing it was noted that the petition for a writ of habeas corpus had been denied, and was presently on appeal in the United States Sixth Circuit Court of Appeals. The panel concluded that such collateral proceedings do not constitute an appeal within the meaning of Gov. R. V(8)(c).
Based upon the stipulation, the board found that respondent had violated Canon 1, DR 1-102(A)(3), of the Code of Professional Responsibility, and that he was guilty of misconduct as defined in Gov. R. V(5)(a). The board recommended that he 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 respondent's objections to the recommendation.
Meyers, Stevens Rea Co., L.P.A., Mr. John S. Rea, Mr. Edward J. Maher, Messrs. Guren, Merritt, Sogg Cohen and Mr. Richard Rivitz, for relator.
Mr. James R. Willis, for respondent.
At the outset respondent concedes that he has been convicted of offenses involving moral turpitude; nevertheless, he questions whether the recommendation of disbarment is not unduly severe. Respondent then attempts to draw a parallel between a disciplinary action and a criminal charge by stating that the case of Mullaney v. Wilbur (1975), 421 U.S. 684, 44 L. Ed. 2d 508, should be applied for its doctrine that the burden of persuasion is on the state (the board here) to show that a less severe alternative is not in order. While the application of Mullaney is novel, the argument presented is inapposite. See Ohio State Bar Assn. v. Weaver (1975), 41 Ohio St.2d 97.
Respondent concludes his objection to the recommendation of the board with the ingenuous argument that "this penalty, in a sense, is as final for a lawyer, as the death penalty is for a murderer." We reject this analogy.
Upon a careful analysis of the evidence and stipulation, this court concludes that the record supports the finding of the board that respondent has violated DR 1-102(A)(3) of the Code of Professional Responsibility. All or one of the violations of which respondent has been convicted is sufficient to constitute misconduct as defined in Gov. R. V(5)(a).
We find that the respondent's conduct as a lawyer was dishonest, deceitful and fraudulent and, as such, conclusively negates his fitness to practice law.
In view of the foregoing, it is the judgment of this court, pursuant to Gov. R. V(5)(a), that respondent be permanently disbarred from the practice of law.
Judgment accordingly.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.