DISCIPLINARY COUNSEL v. RIDENBAUGH
No. 2008-2493
Supreme Court of Ohio
Submitted April 8, 2009-Decided August 20, 2009
[Cite as Disciplinary Counsel v. Ridenbaugh, 122 Ohio St.3d 583, 2009-Ohio-4091.]
{11} Respondent, Aaron Anthony Ridenbaugh of Cuyahoga Falls, Ohio, Attorney Registration No. 0076823, was admitted to the practice of law in Ohio in 2003. On February 7, 2008, we suspended respondent‘s license to practice on an interim basis pursuant to
{12} The Board of Commissioners on Grievances and Discipline now recommends that we indefinitely suspend respondent‘s license to practice. The recommendation is based on the board‘s findings that respondent‘s acts of voyeurism and use of child pornography, which led to his felony convictions, breached ethical standards incumbent on lawyers in this state. We accept the board‘s findings that respondent engaged in professional misconduct and the recommendation for an indefinite suspension; however, we also grant respondent credit for the time his license has been under interim suspension.
{13} Relator, Disciplinary Counsel, charged respondent with violations of the former Code of Professional Responsibility and the current Rules of Professional Conduct.1 A panel of three board members heard the case, including the parties’ stipulations to charged misconduct, and recommended that this court suspend respondent from practice for two years, order him to comply with various restrictions during that time, and deny his request for credit for the interim suspension of his license. The board adopted the panel‘s findings of misconduct
{14} Respondent objects to the board‘s recommendation, arguing that the board had no justification for augmenting the sanction recommended by the panel and that an indefinite suspension is too severe. Respondent asks that we (1) impose a two-year suspension with a stay of the last year on conditions resembling those recommended and (2) grant credit for the time served on the interim suspension to offset any suspension period we impose. For the reasons expressed below, we overrule the objections to the indefinite suspension, but sustain the objection to the denial of interim suspension credit.
Misconduct
{15} Respondent began engaging in the activities that would lead to his arrest sometime in late 2004, when while walking around his apartment complex he discovered that he could sometimes hear people inside an apartment having sexual relations. He started placing a recording device inconspicuously outside apartment windows so that he could record residents’ sexual activity and later listen to the recording for sexual gratification. Respondent continued to make these secret recordings until May 21, 2007, when a resident spied him placing a recording device outside a bedroom window. Law enforcement apprehended respondent later the same day, and he confessed to surreptitious recordings.
{16} A search of respondent‘s apartment revealed other evidence of illicit conduct-possession of child pornography. Police discovered three videos and hundreds of photos and digital images showing minors in various stages of nudity. Respondent later revealed that he began obtaining child pornography near the end of 2006. Officers also found that respondent had made a peephole allowing him to view the female resident in an adjoining apartment.
{17} Respondent was indicted on three counts of intercepting wire, oral, or electronic communications in violation of
{18} After a presentence investigation, respondent was sentenced on November 21, 2007, to a 48-month prison term. He was granted early judicial release in mid-January 2008, after serving only 56 days. He was then placed on community
{19} Respondent has admitted violations of DR 1-102(A)(3), prohibiting a lawyer from engaging in illegal conduct involving moral turpitude, and Prof. Cond.R. 8.4(b), prohibiting a lawyer from committing an illegal act that reflects adversely on the lawyer‘s honesty or trustworthiness. He also admits violations of DR 1-102(A)(6) and Prof.Cond.R. 8.4(h), both prohibiting a lawyer from engaging in conduct that adversely reflects on the lawyer‘s fitness to practice law. We accept these stipulations and find the requisite clear and convincing evidence that respondent committed this professional misconduct.
Sanction
{110} In determining the appropriate sanction to impose for attorney misconduct, “we consider the duties violated, the actual or potential injury caused, the attorney‘s mental state, the existence of aggravating or mitigating circumstances, and sanctions imposed in similar cases.” Stark Cty. Bar Assn. v. Ake, 111 Ohio St.3d 266, 2006-Ohio-5704, 855 N.E.2d 1206, ¶ 44. We then weigh the aggravating and mitigating factors to decide whether circumstances warrant a more lenient or a harsher disposition. See BCGD Proc.Reg. 10(B). Because each disciplinary case involves unique facts and circumstances, we are not limited to the factors specified in the rule and may take into account all relevant factors in determining which sanction to impose. BCGD Proc.Reg. 10(A) and (B).
{111} Respondent has conceded that he violated the duties to the public and legal profession set forth in DR 1-102(A)(3), Prof. Cond.R. 8.4(b), DR 1-102(A)(6), and Prof.Cond.R. 8.4(h). As to the harm posed by this misconduct, the board concluded:
{12} “The offenses committed by Respondent were despicable acts. In the case of the voyeurism Respondent‘s fetishes led him to intrude into the most intimate aspects of the lives of unsuspecting individuals, many of whom felt compelled to relocate after Respondent‘s activity was unveiled. And in the case of the child pornography, Respondent‘s viewing of minors for sexual gratification provides direct financial and other support for an insidious subculture that victimizes the most defenseless of our society.”
{13} In cases where lawyers commit sex crimes targeting children or other especially vulnerable victims, we have imposed a sanction to at once “protect the public, deter other lawyers from similar wrongdoing, and preserve the public‘s trust in the legal profession.” Disciplinary Counsel v. Goldblatt, 118 Ohio St.3d 310, 2008-Ohio-2458, 888 N.E.2d 1091, ¶ 30. Thus, in Goldblatt, we indefinitely suspended a lawyer‘s license to practice following his two felony convictions for
{15} “Although only a young lawyer having practiced less than five years before his interim suspension, Respondent does in fact have no disciplinary record.” See BCGD Proc.Reg. 10(B)(2)(a).
{16} “Respondent has fully cooperated not only in the disciplinary process, but also the judicial process as well.” See BCGD Proc.Reg. 10(B)(2)(d).
{17} “Respondent has made every attempt to rectify his misconduct by seeking and continuing treatment for the psychological and psychiatric disorders discussed below.” See BCGD Proc.Reg. 10(B)(2)(c).
{18} “There have unquestionably been other, significant sanctions that have been imposed on Respondent, many of which will continue for years, if not a lifetime.” See BCGD Proc.Reg. 10(B)(2)(f).
{19} As aggravating features, the board found:
{20} “There was clearly a selfish motive behind Respondent‘s conduct. He succumbed to his sexual fetishes without regard to the privacy and well being of his victims.” See BCGD Proc.Reg. 10(B)(1)(b).
{21} “Respondent‘s conduct involved multiple offenses that took place over a period of years.” See BCGD Proc.Reg. 10(B)(1)(d).
{22} “Respondent‘s conduct was directed at vulnerable victims, particularly with respect to his viewing child pornographic material.” See BCGD Proc.Reg. 10(B)(1)(h).
{123} Respondent claims that the board failed to adequately acknowledge his remorse and mental disability in its deliberations. As to the first factor, it is true that the board did not specify respondent‘s contrition as mitigating. We,
{124} In contrast, we find that respondent is unable, for now, to completely satisfy the test in BCGD Proc.Reg. 10(B)(2)(g)(i) through (iv) for attributing significant mitigating effect to his mental disability. For a mental disability to qualify as a mitigating factor under the rule, the record must contain evidence of the following:
{125} “(i) A diagnosis of a * * * mental disability by a qualified health care professional * * *;
{126} “(ii) A determination that the * * * mental disability contributed to cause the misconduct;
{27} “(iii) In the event of * * * mental disability, a sustained period of successful treatment; and
{1128} “(iv) A prognosis from a qualified health care professional * * * that the attorney will be able to return to competent, ethical professional practice under specified conditions.”
{29} Respondent established the first three elements of this test. Respondent‘s psychiatrist, Stephen B. Levine, M.D., is an expert in clinical sexuality, including paraphilia, a condition generated by “the clash between individual sexual interest and social rules governing sexual behavior.” Goldblatt, 118 Ohio St.3d 310, 2008-Ohio-2458, 888 N.E.2d 1091, ¶ 22. When he came under Dr. Levine‘s care in mid-June 2007, respondent had just been hospitalized as suicidal following his arrest. Dr. Levine testified to his four-pronged diagnosis of respondents mental disabilities: (1) dysthymia-a chronic low-grade depression from which respondent has suffered since childhood, (2) chronic substance abuse, mainly of marijuana, (3) paraphilia, manifested by voyeuristic and pedophiliac activity, with mixed character disorder marked by a passive, socially avoidant personality, and (4) attention deficit disorder (“ADD“), the most treatable of respondent‘s disabilities.
{130} Dr. Levine‘s testimony also unquestionably established that respondent‘s mental disabilities contributed to his ethical breaches. He explained how respondent‘s depression and sense of hopelessness traced back to his upbringing, which included abandonment in childhood by his biological father, his mother‘s contemporaneous cancer diagnosis, and a few years later, his abrupt and painful separation from his stepfather, to whom respondent had grown close, due to the stepfather‘s conviction of possession of child pornography. Overwhelmed with low self-esteem and increasingly unable to achieve sexual satisfaction, respondent fixated on “coming of age” sexuality and sex acts between pubescent minors.
{31} But with psychotherapy and medication, respondent has made strides toward managing his deviant and other unhealthy propensities. Before his incarceration in November 2007, respondent had attended weekly sessions with Dr. Levine; after prison, they met every two weeks until approximately June 2008. At that time, because he had made “reasonably” good progress but also due to his financial constraints, respondent had cut back on his appointments with Dr. Levine to just one every three and one-half weeks. He is compliant with prescribed medication, which has included Zoloft, an antidepressant, and Strattera for his ADD. Dr. Levine testified and respondent confirmed that since entering therapy, respondent has not engaged in illegal sexual activity, and random drug testing has shown that he has ceased all substance abuse.
{32} Megan Robertson, a social worker for the Ohio Lawyers Assistance Program (“OLAP“), also recounted how respondent had completed a sustained period of successful treatment. She testified that respondent had completely complied with his OLAP contract and had demonstrated commitment to fulfilling the requirements of community service, sex-offender therapy, drug and alcohol therapy, and the terms of his community control. Respondent, who formerly practiced as a bankruptcy attorney, returned to his law firm as a paralegal after his incarceration, and his work remains highly regarded.3
{133} Respondent has achieved much in terms of recovery and rehabilitation and has expressed gratitude for his arrest as the catalyst for both. But given the risks associated with his misconduct, we do not at this time consider the medical testimony to be clear and convincing proof of the fourth element of the BCGD Proc.Reg. 10(B)(2)(g) test-that respondent is currently capable of returning to the competent, ethical, and professional practice of law. We acknowledge that Dr. Levine testified, to a reasonable degree of psychiatric certainty, that respondent was ready to resume his practice. We, however, find too much equivocation in Dr. Levine‘s optimism for respondent‘s immediate future.
{34} Though making a “very good prognosis” for respondent, Dr. Levine could say only that he thought respondent “may eventually get married and have a reasonably normal sexual life.” Thus, respondent has not reached normality in the area of his life that caused his ethical violations, and he therefore continues to
{135} “So I would say that he‘s not going to turn into somebody he wasn‘t before, but he‘s going to improve that-he‘s going to continue struggling with these characterological features, and I think he can have a far better adaptation. So in general, I have felt optimistic about him. It wasn‘t simply a thing that I give to people who are my patients; that is, I sell hope, yes. But I also am realistic to know that some people really can‘t and won‘t get better under my care.
{136} “Aaron, I believe, has engaged in multi-modal therapy. He‘s done that in a responsible way. He has a sense of hope for himself. And, therefore, I think I can consciously say that the prognosis is pretty good. But I can‘t predict the future. You know, I can‘t predict his economic situation. * * * But he has made significant progress.”
{137} As we explained in Disciplinary Counsel v. Parker, 116 Ohio St.3d 64, 2007-Ohio-5635, 876 N.E.2d 556, ¶ 84:
{138} “We have never allowed a lawyer who has committed misconduct because of a mental disability to continue to practice without the assurance of a qualified health-care professional, in conformity with BCGD Proc.Reg. 10(B)(2)(g)(iv), that the lawyer is able to practice safely. Evidence suggesting that the lawyer may be able to practice competently and in accordance with ethical and professional standards is not nearly enough. Our cases show that a lawyer whose diagnosed mental disability has contributed to his misconduct must provide competent proof that the disabling symptoms are fully managed currently. E.g., Disciplinary Counsel v. Bowman, 110 Ohio St.3d 480, 2006-Ohio-4333, 854 N.E.2d 480, ¶ 38; Disciplinary Counsel v. Shaw, 110 Ohio St.3d 122, 2006-Ohio-3821, 851 N.E.2d 487, ¶ 33; and Columbus Bar Assn. v. McCorkle, 105 Ohio St.3d 430, 2005-Ohio-2588, 828 N.E.2d 99, ¶ 11.” (Emphasis added in part.)
{139} Moreover, Dr. Levine conditioned his prognosis on respondent‘s long-term psychiatric treatment, stating that respondent needed continued therapy in order to feel “hopeful and responsible” and “to behave in reality, and not return to this la-la land that he existed in for so many years.” He observed that “[a] person with [respondent‘s] background could easily see a mental health professional weekly or twice a week, to gain control over the struggles I have described.” Dr. Levine acknowledged that the nearly four-week intervals between respondent‘s recent sessions is “dictated more by [respondent‘s] ability to pay, and less by his need,” an unfortunate fact confirmed by respondent.
{40} We infer from these concessions that respondent actually needs greater psychiatric oversight than he can currently afford. This leaves us in some doubt
{41} Respondent is therefore indefinitely suspended from the practice of law in Ohio. In addition to the requirements of
{1142} Costs are taxed to respondent.
Judgment accordingly.
MOYER, C.J., and PFEIFER, O‘CONNOR, LANZINGER, and CUPP, JJ., concur.
LUNDBERG STRATTON, J., concurs with the sanction but would not give credit for time served under the interim suspension.
O‘DONNELL, J., dissents and would permanently disbar respondent from the practice of law in Ohio.
Jonathan E. Coughlan, Disciplinary Counsel, and Heather L. Hissom, Assistant Disciplinary Counsel, for relator.
Richard C. Alkire Co., L.P.A., Richard C. Alkire, and Dean Nieding, for respondent.