Disciplinary Counsel v. Hartley

[This opinion has been published in Ohio Official Reports at 177 Ohio St.3d 261.]

DISCIPLINARY COUNSEL v. HARTLEY.

[Cite as Disciplinary Counsel v. Hartley, 2024-Ohio-5232.]

Attorneys—Misconduct—Violations of the Rules of Professional Conduct,

including committing illegal acts adversely reflecting on the lawyer’s

honesty or trustworthiness— Indefinite suspension.

(No. 2024-1098—Submitted September 17, 2024—Decided November 5, 2024.)

ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme

Court, No. 2023-001.

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The per curiam opinion below was joined by KENNEDY, C.J., and FISCHER,

DEWINE, DONNELLY, STEWART, and DETERS, JJ. BRUNNER, J., did not participate.

Per Curiam.

{¶ 1} Respondent, Aaron Paul Hartley, of Kettering, Ohio, Attorney

Registration No. 0083170, was admitted to the practice of law in Ohio in 2008. On

November 1, 2021, this court imposed an interim remedial suspension on Hartley

based on allegations that he had engaged in conduct that violated the Rules of

Professional Conduct and that he posed a substantial threat of serious harm to the

public. See Disciplinary Counsel v. Hartley, 2021-Ohio-3893. That suspension

remains in effect.

{¶ 2} In a February 2023 complaint, relator, disciplinary counsel, charged

Hartley with six violations of the Rules of Professional Conduct arising out of

conduct related to his misdemeanor convictions for assault, disorderly conduct,

telecommunications harassment, and menacing.

{¶ 3} The parties submitted stipulated exhibits and stipulations of fact and

aggravating and mitigating factors. After a hearing, a three-member panel of the

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Board of Professional Conduct found that Hartley committed all the violations

charged in the complaint and recommended as the appropriate sanction an

indefinite suspension. The panel further recommended that certain conditions be

placed on Hartley’s reinstatement to the practice of law. The board adopted the

panel’s findings of fact and misconduct and its recommended sanction. The parties

did not file any objections.

{¶ 4} After reviewing the record and our applicable precedent, we adopt the

board’s findings of misconduct and its recommended sanction.

I. MISCONDUCT

{¶ 5} Hartley’s misconduct underlying this case resulted in his convictions

for five offenses: assault, disorderly conduct on two separate occasions,

telecommunications harassment, and menacing.

A. Assault Conviction

{¶ 6} One night in January 2020, Hartley contacted L.T., whose adult son

Hartley had previously represented in a criminal matter. Over several hours,

Hartley and L.T. spoke by phone and exchanged text messages. Sounding

inebriated, Hartley repeatedly insisted that L.T. come to his home. L.T. declined,

but out of concern for his well-being, she said she would talk with him if he came

to her residence.

{¶ 7} When Hartley arrived at L.T.’s home, he was visibly intoxicated.

While at the home, Hartley made several inappropriate and sexually charged

comments about L.T.’s 13-year-old daughter, E.T. L.T. asked Hartley to leave, but

he refused. L.T. then attempted to call 9-1-1, prompting a physical struggle, during

which Hartley tried to take her cellphone. When police officers arrived, they

observed that Hartley’s speech was loud and slurred, that he was stumbling, and

that he smelled of alcohol.

{¶ 8} Hartley was charged with one count of assault, a first-degree

misdemeanor in violation of R.C. 2903.13. Shortly thereafter, L.T. filed for and

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received a criminal protection order protecting E.T. and herself from Hartley. In

July 2021, a jury found Hartley guilty of the assault charge. He was sentenced to

180 days in jail with 170 days suspended, fined $1,000 with $850 suspended, and

ordered to serve three years of supervised probation; the probation conditions

included his payment of $2,000 in restitution for damage he had caused to L.T.’s

home. See State v. Hartley, Kettering M.C. No. 20CRB00148. The Second District

Court of Appeals affirmed Hartley’s conviction. State v. Hartley, 2023-Ohio-158

(2d Dist.).

B. First Disorderly-Conduct Conviction

{¶ 9} In August 2020, Hartley and his wife, C.H., had an argument at their

home. C.H. alleged that Hartley grabbed her, threw her down, and stepped on her

neck with his foot; Hartley denied these allegations. Two days later, Hartley was

charged with one count of domestic violence, a first-degree misdemeanor in

violation of R.C. 2919.25. Later that day, C.H. filed for and received an ex parte

domestic-violence civil protection order. The next week, C.H. filed for divorce.

{¶ 10} In March 2022, Hartley pleaded no contest to, and was found guilty

of, an amended charge of disorderly conduct, a fourth-degree misdemeanor in

violation of Kettering Cod.Ord. 648.04(a)(1). He was sentenced to a fully

suspended term of 30 days in jail, fined $250 with $200 suspended, and ordered to

serve three years of supervised probation with conditions. See State v. Hartley,

Kettering M.C. No. 20CRB00992.

C. Second Disorderly-Conduct Conviction

{¶ 11} In October 2020, Hartley was with his two daughters, eight-year-old

N.H. and six-year-old A.H., at his law office. According to a detective’s statement

of facts filed in the Kettering Municipal Court, Hartley grabbed N.H., who was

sitting in a chair, by the neck and squeezed her neck with his hand, leaving her

unable to breathe. The detective further stated that while holding her neck, Hartley

lifted N.H. from the chair and told her to “shut up” before releasing her.

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{¶ 12} M.A.M., the girls’ mother, filed for and received an ex parte

domestic-violence civil protection order protecting N.H. and A.H. Hartley was

charged with one count of domestic violence, in violation of R.C. 2919.25; two

counts of child endangering, in violation of R.C. 2919.22(A) and (B); and one count

of assault, in violation of R.C. 2903.13—all first-degree misdemeanors. A jury

found Hartley not guilty of domestic violence and assault, and the prosecution

dismissed the R.C. 2919.22(B) child-endangering count. The jury could not reach

a verdict on the other child-endangering count, so the judge scheduled another trial

on that count.

{¶ 13} Before the second trial, Hartley pleaded no contest to an amended

charge of disorderly conduct, a fourth-degree misdemeanor in violation of

Kettering Cod.Ord. 648.04(a)(2). He was found guilty and sentenced to 30 days in

jail with 28 days suspended and credit for two days served. He was also fined $250

with $200 suspended and ordered to serve three years of supervised probation with

conditions. See State v. Hartley, Kettering M.C. No. 20CRB01311.

D. Telecommunications-Harassment Conviction

{¶ 14} In September and October 2021, Hartley made a series of posts and

comments aimed at C.H. on his public Facebook account, which featured more than

500 friends, including judges, Dayton-area attorneys, and clerks of court. These

posts included vulgar references to C.H.—calling her a “simple cunt,” a “whore,”

an “awful, evil, malicious, wicked[] woman,” a “sociopath,” and a “pathological

liar.” In one post, Hartley stated that he had a video of C.H. engaging in sexual

activity and threatened to release it, and in another post, he accused C.H. of

extortion and adultery. Hartley’s posts included hashtags of C.H.’s maiden,

married, and current last names.

{¶ 15} Based on Hartley’s Facebook posts, he was charged with one count

of violating a protection order, in violation of R.C. 2919.27(A)(1), and two counts

of telecommunications harassment, in violation of R.C. 2917.21(B)(1) and

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(B)(2)—all first-degree misdemeanors. Hartley pleaded no contest to, and was

found guilty of, one of the telecommunications-harassment counts, and the

remaining charges were dismissed. He was sentenced to a fully suspended term of

180 days in jail, fined $1,000 with $950 suspended, and ordered to serve five years

of supervised probation with conditions. See State v. Hartley, Kettering M.C. No.

21CRB01432.

E. Menacing Conviction

{¶ 16} Hartley and M.A.M. entered into a shared-parenting agreement for

N.H. and A.H. in 2017. In August 2021, attorney Michelle Maciorowski, who

represented M.A.M. in the custody case, filed a motion to terminate the agreement

and to award M.A.M. full custody and child support. The motion alleged that

Hartley had “been acting erratically and ha[d] a history of making threats of

violence towards [M.A.M.] and the children’s step-father” and referred to the

criminal cases then pending against Hartley.

{¶ 17} After the motion was filed, Hartley made public threats against

Maciorowski on his Facebook account. In one post, Harley called Maciorowski a

“fat cunt” and a “moron” and stated that he was “still waiting on [her] thanks for a

bullet not being placed in [her] brain.” In other posts, he called her a “liar” and, in

explaining that she should not “fuck with” his family, wrote that “he [would]

fucking roll [her]” and added: “Words, actions, have consequence. :).”

{¶ 18} In response, Maciorowski filed a police report. She believed that

Hartley posed a “legitimate threat to her personal safety,” and she took preventative

actions in her personal life, such as installing new security equipment and warning

relatives about Hartley. Hartley was charged with three first-degree misdemeanor

counts of telecommunications harassment, in violation of R.C. 2917.21(A)(1),

(B)(1), and (B)(2), and one fourth-degree misdemeanor count of menacing, in

violation of R.C. 2903.22. Hartley pleaded no contest to, and was found guilty of,

the menacing count, and the remaining charges were dismissed. He was sentenced

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to a fully suspended term of 30 days in jail, fined $250 with $200 suspended, and

ordered to serve three years of supervised probation with conditions. See State v.

Hartley, Kettering M.C. No. 21CRB01431.

F. Disciplinary Hearing

{¶ 19} Prior to Hartley’s disciplinary hearing, the parties jointly

recommended an indefinite suspension with credit for time served under his interim

remedial suspension. But at the hearing, counsel informed the panel that this was

no longer the case and relator argued against credit for time served.

{¶ 20} The panel noted that throughout the hearing, it was difficult to obtain

clear and definite answers from Hartley and he frequently rambled on without

directly answering a question. It stated that Hartley had offered alternative

explanations for the criminal charges filed against him; had placed blame for his

convictions on the victims of his criminal acts, the courts, or his counsel; and had

alleged that some of the charges were merely attempts to hurt him. The panel

described Hartley as an “arrogant, trying, taxing, and exasperating” witness. For

example, Hartley replied to a question from his counsel with the following

observation: “The law is lesser because I’m not a part of it now.”

{¶ 21} One topic of discussion at the hearing was the reports of a board-

appointed psychiatrist who had independently evaluated Hartley. Although those

medical reports were transmitted to this court under seal, at the hearing, Hartley’s

counsel discussed some of the findings contained in the reports and Hartley

described various mental-health conditions he had been diagnosed with. Those

conditions include autistic-spectrum disorder, “other specified personality disorder

with borderline features,” “other specified trauma and stressor-related disorder,”

and a “history of alcohol use disorder, in apparent remission.” Hartley testified that

some of these conditions, such as autism, had contributed to his criminal and rule-

violating misconduct.

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G. Violations of the Rules of Professional Conduct

{¶ 22} Based on Hartley’s conduct, the board found that he committed five

violations of Prof.Cond.R. 8.4(b) (prohibiting a lawyer from committing an illegal

act that reflects adversely on the lawyer’s honesty or trustworthiness)—one each

for the misdemeanor convictions to which his misconduct had contributed—and

one violation of Prof.Cond.R. 8.4(h) (prohibiting a lawyer from engaging in

conduct that adversely reflects on the lawyer’s fitness to practice law). In accord

with Disciplinary Counsel v. Bricker, 2013-Ohio-3998, the board determined that

the facts underlying the combination of Hartley’s misdemeanor convictions and his

“threatening, vile, disparaging, vulgar, and demeaning statements” in his Facebook

posts about his ex-wife and her attorney were sufficiently egregious to prove the

Prof.Cond.R. 8.4(h) violation. We agree with these findings of fact and misconduct.

II. SANCTION

{¶ 23} When imposing sanctions for attorney misconduct, we consider all

relevant factors, including the ethical duties that the lawyer violated, the

aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions

imposed in similar cases. We have consistently recognized that “the goal of

disciplinary proceedings is not to punish the errant lawyer, but to protect the

public.” Toledo Bar Assn. v. Hales, 2008-Ohio-6201, ¶ 21. And “[w]hile

consistency is also a goal, ‘we examine each case individually and impose the

discipline we believe appropriate based on the unique circumstances of each

case.’” Id., quoting In re Disciplinary Action Against Ruffenach, 486 N.W.2d 387,

390 (Minn. 1992).

{¶ 24} In terms of aggravating factors, the board found that Hartley had

engaged in a pattern of misconduct, committed multiple offenses, and harmed a

vulnerable victim of his misconduct. See Gov.Bar R. V(13)(B)(3), (4), and (8). In

addition, the board found two mitigating factors: the absence of prior discipline and

the imposition of other penalties. See Gov.Bar R. V(13)(C)(1) and (6). The board

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found that Hartley’s mental-health conditions did not mitigate his misconduct under

Gov.Bar R. V(13)(C)(7), because there was no evidence of a sustained period of

successful treatment or certification from a qualified professional that Hartley will

be able to return to the competent, ethical, and professional practice of law.

{¶ 25} Further, although the board did not find that Hartley has a mental-

health, drug-abuse, or alcohol-abuse disorder requiring an impairment suspension

under Gov.Bar R. V(15)(C), the board also did not receive any evidence indicating

that Hartley is currently fit to engage in the competent, ethical, and professional

practice of law.

{¶ 26} The board ultimately determined that an indefinite suspension is the

appropriate sanction. In doing so, it relied on five cases: Columbus Bar Assn. v.

Lindner, 2017-Ohio-4362; Cleveland Metro. Bar Assn. v. Hurley, 2015-Ohio-1568;

Disciplinary Counsel v. LoDico, 2008-Ohio-2465; Disciplinary Counsel v.

Hiltbrand, 2006-Ohio-4250; and Columbus Bar Assn. v. Larkin, 2011-Ohio-762.

{¶ 27} We find Lindner particularly instructive here. In Lindner, the

attorney’s convictions arose from five separate incidents over a two-year period.

Lindner was charged with domestic violence and assault against her husband for

two of those incidents, but she later pleaded guilty to misdemeanor charges of

disorderly conduct. Lindner was also convicted of two counts of attempted child

endangerment—both second-degree misdemeanors—after her three-year-old

daughter was found bicycling outside alone while the temperature was in the

twenties and her eight-month-old daughter was found alone and crying

uncontrollably in Lindner’s home. Finally, Lindner was convicted in two separate

vehicular matters: In the first, she was convicted of leaving the scene of an accident

and falsification after she allegedly falsely claimed that her car had been stolen

several hours before the accident; in the second, she was charged with several

additional violations and was convicted of operating a vehicle while under the

influence of alcohol or drugs.

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{¶ 28} The attorney in Lindner violated Prof.Cond.R. 8.4(b), 8.4(c)

(prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit,

or misrepresentation), and 8.4(h). The aggravating factors present were a dishonest

or selfish motive, a pattern of misconduct, multiple offenses, a lack of cooperation

in the disciplinary process, and harm to vulnerable victims. Lindner at ¶ 10. As for

mitigation, Lindner had no prior discipline. Id. at ¶ 14. And even though Lindner

did not meet the requirements of Gov.Bar R. V(13)(C)(7) to establish her substance-

use disorder as a mitigating factor, we recognized that she was debilitated by

substance-abuse addiction and her dependence on her abusive husband. Id. at ¶ 14.

We ultimately determined that an indefinite suspension was the appropriate

sanction. Id. at ¶ 19. In doing so, we looked to cases involving attorneys whose

untreated substance-use disorders contributed to their multiple criminal

convictions. Id. at ¶ 17.

{¶ 29} In this case, we agree with the board that our precedent calls for the

imposition of an indefinite suspension. Like the attorney in Lindner, Hartley has

multiple criminal convictions involving violent disorderly conduct and harm to

children. Lindner and this case also share the aggravating factors of a pattern of

misconduct, multiple offenses, and vulnerable victims as well as the mitigating

factor of the absence of prior discipline. And both in Lindner and here, issues of

substance abuse played a role in the misconduct, although neither attorney was

entitled to mitigation under Gov.Bar R. V(13)(C)(7). There is also a familiar

temporal aspect between these cases. Both attorneys had a clean track record

leading up to the misconduct, but in rapid succession, they committed multiple

offenses in a short period of time—two years in Lindner and one and a half years

here. In Lindner, even though the sudden spurt of misconduct was possibly due to

substance abuse, mental-health conditions, and other situational factors, we did not

believe that the attorney was ready to resume the competent, ethical, and

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professional practice of law, 2017-Ohio-4362 at ¶ 16, and we found that an

indefinite suspension was the appropriate sanction, ¶ 18-19. So too here.

{¶ 30} All in all, Hartley has demonstrated numerous instances of conduct

that reflect poorly on the legal profession. He has been convicted of violent acts

directed at his family, including his children, and he has publicly made vulgar and

demeaning threats to not only his ex-wife but to her attorney as well. When viewed

in light of our precedent, these actions, coupled with Hartley’s conduct during his

disciplinary hearing, warrant an indefinite suspension to “protect the public,”

Hales, 2008-Ohio-6201, at ¶ 21.

{¶ 31} When deciding whether to give Hartley credit for time he has served

under his November 2021 interim remedial suspension, the board relied on the text

of the Rules for the Government of the Bar of Ohio. Gov.Bar R. V(17)(D)(2) states

that disciplinary orders imposing suspensions “may allow full or partial credit for

any period of suspension imposed under Sections 14 [interim default suspension],

15 [impairment suspension], or 18 [interim felony suspension or default under a

child-support order] of this rule.” The rule does not mention interim remedial

suspensions, which Gov.Bar R. V(19) provides for. The board invoked the maxim

of interpretation “expressio unius est exclusio alterius,” meaning that “the

expression of one thing is the exclusion of another,” Baltimore Ravens, Inc. v. Self-

Insuring Emps. Evaluation Bd., 2002-Ohio-1362, ¶ 19, to conclude that there was

no basis for awarding Hartley credit for time he had served under his interim

remedial suspension.

{¶ 32} We agree that the text of Gov.Bar R. V(17)(D)(2) does not permit an

award of credit for time served under Hartley’s interim remedial suspension. The

plain text of Gov.Bar R. V(17)(D)(2) lists various types of interim suspensions for

which credit for time served is allowed, but an interim remedial suspension is not

among them. These “circumstances support[] a sensible inference that the term left

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out must have been meant to be excluded,” Chevron U.S.A., Inc. v. Echazabal, 536

U.S. 73, 81 (2002). Therefore, Hartley is not entitled to credit for time served.

{¶ 33} Having reviewed the record and our applicable precedent, we

conclude that an indefinite suspension with no credit for time Hartley has served

under his interim remedial suspension is the appropriate sanction for his misconduct

in this case. We therefore adopt the board’s recommendation, including the

conditions on Hartley’s reinstatement to the practice of law.

III. CONCLUSION

{¶ 34} Accordingly, Aaron Paul Hartley is indefinitely suspended from the

practice of law in Ohio with no credit for time served under his November 1, 2021

interim remedial suspension. His reinstatement to the practice of law is conditioned

on (1) an independent psychological or psychiatric evaluation, conducted no more

than three months before the filing of a petition for reinstatement, by an

independent qualified healthcare professional agreed upon by the parties, (2)

evidence of compliance with any treatment recommendations of the independent

qualified healthcare professional, (3) a prognosis from the independent qualified

healthcare professional that Hartley will be able to return to the competent, ethical,

and professional practice of law, (4) evidence of a sustained period of successful

treatment of Hartley’s diagnosed conditions as identified in the board’s impairment-

examination report, and (5) proof of Hartley’s compliance with the conditions of

probation imposed in the criminal cases cited in Part I of this opinion. Costs are

taxed to Hartley.

Judgment accordingly.

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Joseph M. Caligiuri, Disciplinary Counsel, and Michelle A. Hall and

Matthew A. Kanai, Assistant Disciplinary Counsel, for relator.

Montgomery Jonson, L.L.P., and George D. Jonson, for respondent.

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