Disciplinary Counsel v. Cosgrove (Slip Opinion)
2021 Ohio 2188
| Ohio | 2021Background
- Michael F. Cosgrove, admitted 2000, was placed on interim suspension July 9, 2019 after conviction for fourth-degree attempted unlawful sexual conduct with a minor.
- In November 2018 Cosgrove engaged in an online chat he believed was with a 15-year-old, solicited sexual activity, arranged a meeting, and drove to a park where the interlocutor was an undercover officer; he was arrested.
- In April 2019 he pleaded guilty to attempted unlawful sexual contact with a minor; the court designated him a Tier II sex offender, ordered forfeiture of his phone and DNA, and imposed two years community control with treatment, polygraph testing, and participation in a community-based corrections program (he served 60 days).
- Disciplinary Counsel filed a complaint alleging Cosgrove committed an illegal act adversely reflecting on his honesty, trustworthiness, and fitness to practice (Prof.Cond.R. 8.4(b) and 8.4(h)).
- The parties stipulated to the facts and misconduct and proposed an indefinite suspension; the Board recommended an indefinite suspension with no credit for time served under the interim felony suspension.
- The Ohio Supreme Court adopted the Board’s findings and recommended sanction: indefinite suspension with no credit for interim suspension; costs taxed to Cosgrove.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Cosgrove's conduct violated Prof.Cond.R. 8.4(b) and 8.4(h) | Cosgrove committed an illegal act (attempted unlawful sexual conduct with a minor) that reflects adversely on honesty and fitness | Cosgrove stipulated to the misconduct and asserted mitigating factors (no prior discipline, mental-health treatment, cooperation) | Court found violations of Prof.Cond.R. 8.4(b) and 8.4(h) |
| Appropriate disciplinary sanction (indefinite suspension; credit for interim suspension?) | Indefinite suspension with no credit for interim felony suspension is warranted to protect public and deter similar misconduct | Defense urged consideration of mitigating factors and rehabilitation when setting sanction; implicitly sought credit or lesser sanction | Court adopted indefinite suspension and denied credit for time served under the interim suspension |
| Reinstatement condition: require proof of compliance with court-ordered community control | Relator asked reinstatement be conditioned on proof of compliance with community control | Cosgrove argued that reinstatement matters should reflect his rehabilitation and compliance | Court held the requested condition is subsumed by Gov.Bar R. V(25)(D)(2) and therefore need not be separately imposed |
Key Cases Cited
- Disciplinary Counsel v. Schwarz, 160 Ohio St.3d 194 (2020) (upholding indefinite suspension for attorney who attempted to meet with undercover posing as minor)
- Disciplinary Counsel v. Goldblatt, 118 Ohio St.3d 310 (2008) (indefinite suspension for attorney who attempted to procure an underage girl via undercover agent)
- Disciplinary Counsel v. Andrews, 124 Ohio St.3d 523 (2010) (discipline for online solicitation of what attorney believed was a 13-year-old)
- Disciplinary Counsel v. Bricker, 137 Ohio St.3d 35 (2013) (recognizing conduct of this type can constitute a separate violation of Prof.Cond.R. 8.4(h))