Dayton Bar Association v. Ballato
143 Ohio St. 3d 76
| Ohio | 2014Background
- Thomas A. Ballato, admitted 1994, was interim-suspended in 2009 after a federal felony conviction for possession of child pornography. He served 43 months in prison and was released in 2012.
- In 2004 Ballato ordered magazines advertised online; the seller disclosed they were child pornography; an undercover delivery led to searches that uncovered three child-porn images on his office computer.
- Ballato pleaded guilty to one count of possession of child pornography, received prison, fine, community service, and lifetime supervised release with strict conditions (computer restrictions, counseling, polygraph, property searches).
- The Board found violations of DR 1-102(A)(3) (illegal conduct involving moral turpitude) and DR 1-102(A)(6) (conduct reflecting adversely on fitness to practice) based on the 2004 conduct; Rules of Professional Conduct not applied because they postdate the conduct.
- Aggravating factors: selfish motive, multiple offenses, vulnerability of victims. Mitigating factors: no prior discipline, acceptance of responsibility, cooperation, prison sentence and supervision, ongoing counseling. The board recommended indefinite suspension but declined to grant credit for interim suspension time.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ballato violated disciplinary rules by possessing child pornography | Relator: conduct violated DR 1-102(A)(3) and 1-102(A)(6) | Ballato did not contest factual findings; mitigation emphasized | Court: Adopted board findings — violations proven |
| Whether Rules of Professional Conduct apply | Relator charged both Codes | Ballato argued conduct predated RPC effective date | Court: Dismissed RPC charges; DR rules govern because conduct occurred in 2004 |
| Appropriate sanction (indefinite suspension vs. disbarment or shorter suspension) | Relator: Indefinite suspension with no credit for interim time served | Ballato sought credit for time served under interim felony suspension | Court: Indefinite suspension; no credit for interim suspension time served |
| Whether to grant credit for time served under interim felony suspension | Panel recommended credit; board recommended no credit | Ballato sought some credit to shorten time before eligibility for reinstatement | Court: Denied credit — indefinite suspension with no credit, requiring reinstatement process when ready |
Key Cases Cited
- In re Ballato, 123 Ohio St.3d 1427 (2009) (interim suspension upon notice of felony conviction)
- Dayton Bar Assn. v. Greenberg, 135 Ohio St.3d 430 (2013) (indefinite suspension without credit for possession of child pornography)
- Disciplinary Counsel v. Ridenbaugh, 122 Ohio St.3d 583 (2009) (comparison of sanctions and credit-for-time-served considerations)
- Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio St.3d 424 (2002) (factors for imposing sanctions)