Disciplinary Counsel v. Smith
128 Ohio St. 3d 390
| Ohio | 2011Background
- Respondent Joseph H. Smith, Ohio attorney since 1989, was interim-suspended on April 24, 2009 after a felony conviction.
- In April 2010, Disciplinary Counsel filed a complaint alleging four DR violations related to tax reporting and IRS investigation conduct.
- A panel found respondent guilty of conspiracy to defraud the IRS, making false tax returns, and obstructing an IRS investigation; he was acquitted of mail fraud/conspiracy and money-laundering charges were dismissed.
- Evidence showed respondent concealed compensation from the Catholic Diocese of Cleveland by channeling funds through a codefendant’s company and two businesses; fraudulent tax documentation was used during a 1999 audit.
- Respondent received a federal sentence: 1 year and 1 day in prison, 150 hours of community service, restitution of $395,154, and two years of supervised release through January 2012; restitution will continue under a federal agreement.
- The board recommended indefinite suspension with credit for time served, conditioned on completion of federal supervised release and a final restitution agreement with the federal government.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether respondent violated ethical rules through his conduct | Smith engaged in illegal conduct involving moral turpitude and deceit. | Smith admits conduct; sanctions must reflect the record. | Yes; conduct violated DR 1-102(A)(3)-(6). |
| Appropriateness of the sanction given the conduct and consequences | Indefinite suspension warranted by pattern of misconduct and substantial penalties. | Mitigating factors warrant a less severe or tailored sanction. | Indefinite suspension with credit for time served; conditioned on supervised release and restitution agreement. |
| Whether reinstatement should be conditioned on federal supervision and restitution | Reinstatement should require compliance with federal obligations. | Conditioning reinstatement on federal outcomes is excessive. | Reinstatement conditioned on completion of federal supervised release and final restitution agreement. |
Key Cases Cited
- Dayton Bar Assn. v. Brunner, 91 Ohio St.3d 398 (2001) (indefinite suspension with credit for time served for DR 1-102(A)(4) violation; mitigating factors)
- Cincinnati Bar Assn. v. Kellogg, 126 Ohio St.3d 360 (2010) (indefinite suspension; conditioning reinstatement on term completion; multiple federal felonies)
- Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio St.3d 424 (2002) (factors for sanctions in attorney misconduct cases)