Opinion
No. 90-826
Submitted June 19, 1990 —
Decided October 17, 1990.
Attorneys at law — Misconduct — Two-year suspension — Conviction for perjury.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Supreme Court, No. 89-58.
In a complaint filed October 24, 1989, relator, Office of Disciplinary Counsel, charged that respondent, Quentin M. Derryberry II, had violated, inter alia, DR 1-102(A)(3) (engaging in illegal conduct involving moral turpitude), 1-102(A)(4) (engaging in conduct involving fraud, deceit, dishonesty, or misrepresentation), and 1-102(A)(6) (engaging in conduct that adversely reflects on an attorney's fitness to practice law). In his answer, respondent admitted that he had been convicted of violating Section 1623, Title 18, U.S. Code (perjury), as alleged in the complaint, but he denied that he had thereby violated the cited Disciplinary Rules. The matter was heard by a panel of the Board of Commissioners on Grievances and Discipline of the Supreme Court on February 2, 1990.
According to the testimony and exhibits presented at the hearing, respondent was convicted of perjury because he violated his oath while testifying at a hearing on a request that he be removed as trustee of a bankrupt debtor's estate. Specifically, respondent testified that he had never possessed any part of certain creditor contributions that had been given to a third party when, in fact, the third party had given respondent at least one of the creditors' checks, apparently as part of a $27,500 personal loan. Later during that hearing, however, respondent admitted that he had received this check.
In addition to perjury, respondent was initially convicted of embezzling bankruptcy funds in violation of Section 153, Title 18, U.S. Code. However, the United States Court of Appeals for the Sixth Circuit reversed the embezzlement conviction at the same time it affirmed the perjury conviction. See United States v. Derryberry (C.A. 6, 1988), 856 F.2d 196 (not recommended for full-text publication). The court of appeals nevertheless affirmed respondent's sentence, which included a three-year probation period in lieu of a suspended two-year term of imprisonment and a condition that respondent make restitution in the amount of $8,500.
On August 31, 1987, shortly after he began serving his probation, respondent was suspended indefinitely from the practice of law in Ohio pursuant to Gov. Bar R. V(9)(a)(iii). Respondent has complied with the conditions of both his suspension and his probation, although he is presently challenging the restitution requirement. Respondent was scheduled to complete his probation on June 21, 1990.
Based on the foregoing, the panel found that respondent had violated DR 1-102(A)(3), (4), and (6). Before making its recommendation, the panel considered two character witnesses and numerous letters from attorneys and members of respondent's community. All praised respondent's competence and integrity. The panel also considered respondent's active participation in civic and professional organizations and his seventeen years of experience as a trustee in bankruptcy actions. Moreover, the panel suggested that respondent's perjury conviction may have been partly due to an overly zealous prosecution.
The panel recommended that respondent be indefinitely suspended from the practice of law, but that he be given credit, pursuant to Gov. Bar R. V(25), for time served under the suspension imposed on August 31, 1987. The board adopted the panel's findings; however, it recommended only a two-year suspension with credit for time served.
J. Warren Bettis, disciplinary counsel, Carl J. Corletzi and Harald F. Craig III, for relator.
Kenneth W. Sullivan, for respondent.
Having thoroughly reviewed the record, we agree with the board's findings of misconduct. We also agree with the board's recommendation, to which neither party has objected. Accordingly, respondent is hereby ordered suspended from the practice of law in Ohio for two years, but he is to be credited for the time he has served under our order of August 31, 1987. Costs taxed to respondent.
Judgment accordingly.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.