Disciplinary Counsel v. O'Malley
137 Ohio St. 3d 161
| Ohio | 2013Background
- Joseph P. O’Malley, admitted 1992, was criminally convicted in federal court (Aug. 2011) of misprision of a felony and making a materially false statement to federal agents relating to county-hiring and court-influence matters.
- Misconduct arose from: (1) reviewing and prompting alteration/completion of an employment application for Joseph Gallucci while assisting county auditor Frank Russo (misprision conviction), and (2) asking Russo to intervene with Judge Steven Terry to deny summary-judgment motions in a foreclosure case (impermissible influence), followed by false statements to the FBI denying those actions (false-statement conviction).
- Federal sentence: four months’ imprisonment, $10,000 fine, two years’ supervised release, and 250 hours’ community service; O’Malley served prison time and largely completed community service at the time of the discipline hearing.
- The Board of Commissioners on Grievances and Discipline adopted stipulated facts and recommended an indefinite suspension with credit for time served under an August 2011 interim felony suspension, conditioned on completion of federal supervised release before reinstatement.
- The Ohio Supreme Court adopted the board’s findings of misconduct but rejected the board’s recommended credit; the Court imposed an indefinite suspension without credit for time served and required completion of all aspects of the federal sentence before petitioning for reinstatement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether O’Malley’s actions violated Rules of Professional Conduct | Misconduct (illegal acts, dishonesty, prejudicial to justice) warranted discipline | O’Malley admitted misconduct; mitigation (no prior record, cooperation, penalties already imposed) | Court adopted board’s findings: multiple violations (Prof.Cond.R. 3.5, 8.4 variants) |
| Appropriate sanction (indefinite suspension vs. disbarment) | Indefinite suspension appropriate given similar precedent | O’Malley sought credit for time served under interim suspension | Court imposed indefinite suspension (no disbarment) but denied credit for time served |
| Whether credit for interim felony suspension should be applied | Board and respondent: credit should be given for time served under interim suspension | Relator argued sanction should not necessarily include credit; Court weighed integrity concerns | Court refused to grant credit for time served under the interim suspension |
| Reinstatement condition: completion of federal sentence | Board conditioned reinstatement on supervised-release completion | O’Malley agreed to finish supervised release before reinstatement | Court required completion of all aspects of federal sentence (including supervised release) before petitioning for reinstatement |
Key Cases Cited
- Ohio State Bar Assn. v. Johnson, 96 Ohio St.3d 192 (2002) (indefinite suspension as alternative to disbarment)
- Cincinnati Bar Assn. v. Kellogg, 126 Ohio St.3d 360 (2010) (indefinite suspension imposed for serious misconduct)
- Disciplinary Counsel v. Smith, 128 Ohio St.3d 390 (2011) (indefinite suspension with credit for interim suspension in limited circumstances)
- Disciplinary Counsel v. Rolla, 95 Ohio St.3d 27 (2002) (indefinite suspension for attorney misconduct)
- Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio St.3d 424 (2002) (factors for sanctioning attorney misconduct)