DISCIPLINARY COUNSEL v. BENNETT
No. 2009-1100
Supreme Court of Ohio
Submitted August 11, 2009—Decided February 4, 2010
124 Ohio St.3d 314, 2010-Ohio-313
{11} Rеspondent, Clyde Bennett II, formerly of Mason, Ohio, Attorney Registration No. 0059910, was admitted to the practice of law in Ohio in 1992. On February 15, 2008, we suspended respondent‘s license to praсtice on an interim basis pursuant to
{12} The Board of Commissioners on Grievances and Disciplinе recommends that we now suspend respondent from practice for one year and give him credit for the time his license has been under the interim suspension. The board madе this recommendation based on findings that respondent had structured financial transactions to avoid federal reporting requirements for transfers in excess of $10,000, the illegal cоnduct that led to his conviction. We agree that respondent violated ethical standards incumbent upon Ohio attorneys but hold that an indefinite suspension, with credit for the interim suspension, is the appropriate sanction.
{13} Relator, Disciplinary Counsel, charged respondent with violating two Disciplinary Rules of the Code of Professional Responsibility: DR 1-102(A)(4) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation) and 1-102(A)(6) (a lawyer shall not engage in conduct that adversely reflects on the lawyer‘s fitness to practice law). The parties waived an evidentiary hearing and filed agreed stipulations in which respondent admitted the cited misconduct and the parties propоsed that he receive a one-year suspension with credit for the time served since his February 15, 2008 interim suspension. A panel of three board members recommended acceptance of the agreed stipulations and proposed sanction. The board adopted the panel‘s report, accepting the stipulations and recommendation.
{14} The parties stipulated to respondent‘s violations of DR 1-102(A)(4) and (6), and to the following underlying facts:
{15} 1. “On September 26, 2007, respondent pled guilty to a one-count Bill of Information alleging a Class C Felony in violation of
{16} 2. “On December 28, 2007, U.S. District Court Judge Thomas Rose sentenced respondent to 24 months in prison аnd a $4,000 fine.”
{17} 3. “Under
{18} 4. “At all times herein, respondent was aware of such regulations.”
{19} 5. “Structuring occurs when a person conducts one or more currency transactions at one or more financial institutions (or different branches of the same financial institution), on one or more days. One does this with the purpose of evading currency transaction reporting requirements. Structuring includes breaking down a single sum of currency over $10,000 into smaller sums or conducting a series of case [sic] transactions all at or below $10,000 with the purpose of evading currency transaction reporting requirements.”
{110} 6. “During a five-month period, respondent unlawfully structured approximately $124,300 with various financial institutions located around Cincinnati, Ohio for the express purpose of evading the above-mentioned reporting requirements.”
{111} 7. “A majority of $124,300 was currency respondent had obtained from previously cashed paychecks thаt were issued to respondent by his employer ***”
{112} 8. “A certain unspecified portion of the currency transactions identified below originated from income that respondent received, but improperly failed to report and account to the Internal Revenue Service. The following paragraphs illustrate respondent‘s criminal activity.”
{113} 9. “On August 15 and 16, 2002, respondent unlawfully structured $18,000 in U.S. Currency by making the following deposits:
- “$4,000 at Fifth Third Bank, 916 Main St., Cincinnati
- “$5,000 at Fifth Third Bank, 201 E. Fourth St., Cincinnati
- “$3,000 at Fifth Third Bank 38 Fountain Square, Cincinnati
- “$6,000 at Fifth Third Bank, 916 Main St., Cincinnati.”
- “$7,000 at Fifth Third Bank, 38 Fountain Square, Cincinnati
- “$8,000 at Fifth Third Bank, 916 Main St., Cincinnati
- “$5,000 at Fifth Third Bank, 38 Fountain Square, Cincinnati
- “$3,000 at Fifth Third Bank, 5th & Broadway, Cincinnati
- “$6,300 at Fifth Third Bank, 201 E. Fourth St., Cincinnati.”
{115} 11. “Between September 18, 2002 and September 20, 2002, respondent unlawfully structured $20,000 in U.S. Currency by making the following deposits:
- “$5,000 at Fifth Third Bank, 38 Fountain Square, Cincinnati
- “$8,000 at Fifth Third Bank, 38 Fountain Square, Cincinnati
- “$7,000 at Fifth Third Bank, 38 Fountain Square, Cincinnati.”
{116} 12. “Between September 23, 2002 and September 27, 2002, the respondent unlawfully structured $32,000 in U.S. Currency by making the following deposits:1 [Footnote sic.]
- “$8,000 at Fifth Third Bank, 916 Main St., Cincinnati
- “$7,000 at Fifth Third Bank, 38 Fountain Square, Cincinnati
- “$3,000 at Fifth Third Bank, 38 Fountain Square, Cincinnati
- “$4,000 at Fifth Third Bank, 5th & Broadway, Cincinnati
- “$4,000 at Fifth Third Bank, 38 Fountain Square, Cincinnati
- “$6,000 at Fifth Third Bank, 38 Fountain Square, Cincinnati.”
{117} 13. “Between September 28, 2002 and October 1, 2002, respondent unlawfully structured $12,000 in U.S. Currency by making the fоllowing deposits:
- “$2,500 at Fifth Third Bank, 1212 West Kemper, Cincinnati
- “$6,000 at Fifth Third Bank, 38 Fountain Square, Cincinnati
- “$3,500 at Fifth Third Bank, 201 E. Fourth St., Cincinnati.”
{118} 14. “On January 14 and 15, 2003, respondent unlawfully structured $13,000 in U.S. Currency by making the following deposits:
- “$9,000 at Fifth Third Bank, 38 Fountain Square, Cincinnati
- “$4,000 at Fifth Third Bank, 38 Fountain Square, Cincinnati.”
{119} 15. “As part of the plea agreement, respondent agreed, that if necessary, he would file corrected U.S. Federal Income Tax returns for 2003 and 2004 within 120 days of the plea.”
{121} 17. “To date, neither the IRS nor the U.S. Department of Probation has advised respondent of the need to amend his 2003 and 2004 taxes.”
{122} We accept these stipulations and find that respondent violated DR 1-102(A)(4) and (6).
Sanction
{123} In determining the appropriate sanction for a lawyer‘s misconduct, we consider sanctions imposed in similar cases and whether aggravating or mitigating factors under BCGD Proc.Reg. 10(B) weigh in favor of a harsher or more lenient disposition. Citing no aggravating featurеs, the parties stipulated to the mitigating factors that respondent (1) does not have a prior disciplinary record, (2) provided full and free disclosure to the board with a cooperative attitude toward the proceedings, and (3) offered positive character evidence. See BCGD Proc.Reg. 10(B)(2)(a), (d), and (e).
{124} The parties have also stipulated in mitigation that other penalties and sanctions have been imposed for respondent‘s illegal conduct—he was sentenced to two years in prison and ordered to pay a $4,000 fine. See BCGD Proc.Reg. 10(B)(2)(f). Although this is true, the punishment was for only a portion of the violations committed. As part of a plea agreement with prosecutors, respondent pleaded guilty to structuring $32,000 in transactions from September 23 through 27, 2002, but he admits in the stipulations in this case that he structured other transactions as well. This reduces the weight of that mitigating factor.
{125} We also find a number of aggravating factors applicable to this case that the parties, panel, and board do not mention. First, although respondent‘s motive fоr illegally structuring financial transactions is not clear from the record before us, the bill of information to which he pleaded guilty stated that he structured the $32,000 transaction by making each deposit “into another individual‘s savings account.” Respondent apparently thought it was worth the risk of prosecution for evading the reporting requirements for domestic finаncial institutions. His criminal conduct thus manifests dishonest and selfish motives, aggravating factors under BCGD Proc.Reg. 10(B)(1)(b). Respondent also engaged in his illegal activity over a five-month period, mаking 23 separate deposits at various banks, which constitutes a pattern of misconduct, an aggravating factor under BCGD Proc.Reg. 10(B)(1)(c). An indefinite suspension is therefore apрropriate.
{126} We accept the parties’ proposal to credit respondent for his interim felony suspension. In their stipulations, the parties list the following cases in
{127} “In Disciplinary Counsel v. Blaszak, 104 Ohio St.3d 330, 819 N.E.2d 689, 2004-Ohio-6593, the Supreme Court of Ohio imposed a two-year suspеnsion with credit for time served after the respondent pled guilty to selling witness testimony in a pending case. In Cuyahoga County Bar Assn. v. Garfield, 109 Ohio St.3d 103, 846 N.E.2d 45, 2006-Ohio-1935, the Ohio Supreme Court imposed an 18-month suspension with credit for time served аfter finding that the respondent pled guilty to one count of bank fraud for pledging a company‘s certificate of deposit as collateral for a personal loаn. Id. In Disciplinary Counsel v. Petroff, 85 Ohio St.3d 396, 709 N.E.2d 111, 1999-Ohio-400, the Ohio Supreme Court suspended Mark Petroff for one year with credit for time served after the respondent pled guilty to attempting to evade federal income taxеs. Id. After Attorney William Seall was sentenced to four months in prison and a $7,000 fine for conspiring to commit tax fraud, the Supreme Court of Ohio suspended Seall for one year with credit for time served under the interim suspension. Dayton Bar Assn. v. Seall, 81 Ohio St.3d 280, 690 N.E.2d 1271, 1998-Ohio-630.”
{128} Respondent is therefore indefinitely suspended from the practice of law in Ohio; however, we grant credit for the time he has served under the February 15, 2008 interim suspension order, In re Bennett, 117 Ohio St.3d 1401, 2008-Ohio-594, 881 N.E.2d 270, toward the two-year period that respondent must wait before petitioning for reinstatement under
Judgment accordingly.
MOYER, C.J., and LUNDBERG STRATTON, O‘CONNOR, O‘DONNELL, LANZINGER, and CUPP, JJ., concur.
PFEIFER, J., dissents and would impose the one-year suspensiоn recommended by the board.
Jonathan E. Coughlan, Disciplinary Counsel, and Joseph M. Caliguri, Assistant Disciplinary Counsel, for relator.
Clyde Bennett II, pro se.