Opinion
No. 102
Decided March 11, 1970.
Attorneys at law — Misconduct — Conspiring to embezzle — Aiding and abetting to defraud — Discipline warranted — Suspension from practice for indefinite period.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline.
On July 28, 1968, relator, the Cleveland Bar Association, instituted these proceedings before the Board of Commissioners on Grievances and Discipline of this court seeking the disbarment of respondent because of his conviction of crimes involving moral turpitude.
On November 15, 1963, respondent had been convicted by a federal court judge of conspiring with one Gold to embezzle from Cosmopolitan Small Business Investment Corporation in violation of Sections 371 and 657 of Title 18, U.S. Code, and also of aiding and abetting Gold to defraud that company in violation of Sections 2(a) and 657 of Title 18.
That judgment was affirmed by the United States Court of Appeals ( United States v. Zimmerman, 374 F.2d 241), and, on March 24, 1969 respondent's petition for certiorari was denied by the United States Supreme Court ( 89 S. Ct. 1196).
The Board of Commissioners on Grievances and Discipline found that defendant had been convicted of crimes involving moral turpitude and recommended that respondent be suspended from the practice of the law for an indefinite period. The cause is now before this court on respondent's objections to the findings of the Board of Grievances and Discipline.
Mr. Ron Tonidandel, Mr. William Falsgraf and Mr. Thomas J. Miller, for relator.
Mr. Gerald A. Messerman, for respondent.
Rule XVIII, 5(a), of the Rules of Practice of the Supreme Court, defines "misconduct" as including "the commission or conviction of a crime involving moral turpitude." (Emphasis added.)
Respondent concedes that the crimes for which he was convicted are crimes "involving moral turpitude," within the meaning of those words as used in Rule XVIII, 5(a). Respondent apparently recognizes that he should therefore be disciplined by this court for such misconduct.
He argues, however, that the record in the criminal case and the other evidence presented to us do not show that respondent knew that Gold was embezzling from and defrauding Cosmopolitan Small Business Investment Corporation. However, such knowledge was a necessary element of the crimes of which the federal court found him guilty.
Hence, the majority of this court is of the opinion that the respondent should at least be suspended from the practice of the law for an indefinite period.
The respondent's objections to the report and recommendation of the Board of Commissioners on Grievances and Discipline are overruled and respondent is suspended from the practice of law for an indefinite period.
Judgment accordingly.
TAFT, C.J., LEACH, O'NEILL, HERBERT and CORRIGAN, JJ., concur.
SCHNEIDER and DUNCAN, JJ., concur in part.
LEACH, J., of the Tenth Appellate District, sitting for MATTHIAS, J.
SCHNEIDER and DUNCAN, JJ., concur in the first two paragraphs of the Per Curiam opinion.
However, we have searched the record without avail for any evidence from which a reasonable inference may be drawn that, as the majority puts it, respondent "knew that Gold was embezzling from and defrauding Cosmopolitan Small Business Investment Corp." We recognize further that such knowledge must be presumed to have been found by the federal district court which found respondent guilty.
Admittedly, we do not sit to review that conviction but are, however, charged with the duty to review independently the record for the degree of culpability in assessing discipline for the breach of our canons. See Toledo Bar Assn. v. Lichota, 15 Ohio St.2d 217.
Our conclusion is, notwithstanding the judgment of the federal district court, that respondent was guilty of no more than a failure to exercise that care which is to be expected of a reasonably prudent attorney at law and, therefore, his discipline should be limited to a public reprimand.