Summary
disbarring attorney who engaged in a scheme to misappropriate approximately $40,000 from his law firm over a two-year period
Summary of this case from Cincinnati Bar Ass'n v. WiestOpinion
D.D. No. 85-35
Decided January 15, 1986.
Attorneys at law — Misconduct — Permanent disbarment — Embezzlements — Failure to file certificate of registration.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Bar.
Relator, Office of Disciplinary Counsel, alleges in its complaint that respondent, Gary Zane Nothstein, was admitted to the practice of law in Ohio on April 27, 1974 and was also a member of the Bars of Maryland and the District of Columbia. Relator also alleges that from 1980 through August 1982 respondent misappropriated approximately $40,000 which should have been paid to his law firm in Maryland but was diverted to his own use. This was accomplished in part by creating "ghost" files for nonexistent clients. Upon billing these "clients," respondent would intercept the billings and write-off the amounts as non-billable. Respondent obtained the money by submitting false expense claims against these non-existent and existing client accounts.
Although respondent was treated by a psychiatrist and has been diagnosed as having, inter alia, reactive depression, it was found respondent was carrying on a practice with a major law firm in Maryland and was also writing a treatise for a major legal publisher on labor law at the time of the embezzlements. Accordingly on August 24, 1984, respondent was disbarred from legal practice in Maryland.
In addition to the embezzlements committed in Maryland, respondent failed to file a certificate of registration with the clerk of this court and pay the registration fees on November 1, 1975, and September 1, 1983, or to apply for inactive status.
This matter was heard on May 10, 1985 by a panel of the Board of Commissioners on Grievances and Discipline without respondent's presence. The record indicates that a certified mail return receipt card, dated January 23, 1985, was returned by respondent acknowledging receipt of the complaint. Subsequent certified mail return receipt cards addressed to respondent were returned unclaimed.
Based upon the foregoing evidence, the board found respondent to have violated the following Disciplinary Rules: DR 1-102(A)(3), engaging in illegal conduct involving moral turpitude, DR 1-102(A)(4), engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation, and DR 1-102(A)(6), engaging in other conduct that adversely reflects on his fitness to practice law; and to have violated Gov. Bar R. VI and VII, in failing to register or pay the registration fees to the Clerk of the Supreme Court of Ohio.
The board recommended that respondent be permanently disbarred.
Angelo J. Gagliardo, disciplinary counsel, and Karen B. Hull, for relator.
It is well-established by this court that embezzlement of funds is demonstrative of sufficient moral turpitude to justify disbarment. Bar Assn. v. McGarry (1979), 60 Ohio St.2d 168 [14 O.O.3d 406]; Lake County Bar Assn. v. Ostrander (1975), 41 Ohio St.2d 93 [70 O.O.2d 173]. Such a determination, however, is neither lightly nor automatically imposed. See, e.g., Reinstatement of Rasor (1974), 40 Ohio St.2d 25 [69 O.O.2d 127] (mitigating circumstances offered with a finding that petitioner had rehabilitated himself to justify readmission to the bar).
In the present cause respondent's apparent reluctance to offer mitigation on his own behalf, or to appear before the panel, does not help his position. A review of the record supports the board's findings and recommendation which we adopt in their totality.
It is the judgment of this court that respondent be permanently disbarred from the practice of law.
Judgment accordingly.
CELEBREZZE, C.J., SWEENEY, LOCHER, HOLMES, C. BROWN, DOUGLAS and WRIGHT, JJ., concur.