The opinion
[This opinion has been published in Ohio Official Reports at 177 Ohio St.3d 235.]
DISCIPLINARY COUNSEL v. MCCLAIN.
[Cite as Disciplinary Counsel v. McClain, 2024-Ohio-5197.]
Attorneys—Misconduct—Criminal conduct—Conduct that adversely reflects on
the lawyer’s fitness to practice law—Two-year suspension with credit for
time served under an interim felony suspension.
(No. 2024-0848—Submitted July 23, 2024—Decided November 1, 2024.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2023-038.
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The per curiam opinion below was joined by FISCHER, DEWINE,
DONNELLY, STEWART, EDELSTEIN, and DETERS, JJ. KENNEDY, C.J., concurred in
part and dissented in part and would not award credit for time served under the
interim felony suspension. CARLY M. EDELSTEIN, J., of the Tenth District Court of
Appeals, sitting for BRUNNER, J.
Per Curiam.
{¶ 1} Respondent, William Allen McClain, of Franklin, Ohio, Attorney
Registration No. 0082054, was admitted to the practice of law in Ohio in 2007.
{¶ 2} On March 15, 2023, we suspended McClain from the practice of law
on an interim basis following his February 2023 convictions for two counts of
aggravated assault, felonies of the fourth degree, and one count of inducing panic,
a felony of the fifth degree. In re McClain, 2023-Ohio-790. The convictions arose
from an incident in which McClain, after an evening of drinking with his girlfriend
and others, became heavily intoxicated, displayed aggressive and violent behavior,
and discharged a firearm. The incident ended with McClain’s arrest.
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{¶ 3} In a November 2023 complaint, relator, disciplinary counsel, charged
McClain with a single violation of Prof.Cond.R. 8.4(h) (conduct that adversely
reflects on the lawyer’s fitness to practice law) arising from his conduct and the
resulting convictions.
{¶ 4} The parties submitted stipulations of fact, misconduct, and
aggravating and mitigating factors. They also submitted 17 stipulated exhibits. A
three-member panel of the Board of Professional Conduct conducted a hearing at
which it heard McClain’s testimony. The panel issued a report finding that
McClain committed the charged misconduct and recommending that he be
suspended from the practice of law for two years, with credit for the time he has
served under the March 15, 2023 interim felony suspension. The panel also
recommended that McClain’s reinstatement be conditioned on his (1) complying
with the terms of his criminal sentence, including his three-year period of
community control, (2) complying with the terms of his three-year Ohio Lawyers
Assistance Program (“OLAP”) contract, (3) complying with the terms of an agreed
entry from his divorce case, (4) complying with the treatment recommendations of
his mental-health professionals, and (5) submitting proof from a qualified
healthcare professional that McClain can return to the competent, ethical, and
professional practice of law. The board adopted the panel’s findings of fact and
misconduct and its recommended sanction. No objections have been filed.
{¶ 5} After a review of the record, we adopt the board’s findings of
misconduct and its recommended sanction.
FINDINGS OF FACT AND MISCONDUCT
{¶ 6} Before the events giving rise to this matter, McClain was a Judge
Advocate General and chief of the Labor and Employment Law Division of the
Office of the Staff Judge Advocate in the 88th Air Base Wing at Wright Patterson
Air Force Base. In that capacity, he provided legal support to officers, enlisted
airmen, Air Force civilians, contract employees, and military retirees.
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{¶ 7} The relevant facts took place on Saturday evening, October 29, 2022,
and early the next morning. McClain and his girlfriend (now fiancée), Jennifer
Miller, were at a bar, along with Miller’s adult daughter, Brianne Cash, and Cash’s
friends Marissa Wallace and Destiny Oakes (now known as Destiny Benton). At
some point, McClain, who was intoxicated, became aggravated and belligerent.
The group decided to leave the bar, and McClain walked off into the parking lot.
{¶ 8} When Miller and Benton approached McClain to convince him to
leave with them, McClain assaulted Miller. Benton came to Miller’s defense, and
McClain attempted to kick Benton. Because of McClain’s actions, the four women
left the bar without him.
{¶ 9} The women eventually returned to McClain’s home, where McClain
and Miller lived. The women decided to hide or remove the numerous guns that
McClain kept in the house, given his conduct earlier that night, his level of
intoxication, and his impending return. As Miller was coming from upstairs to
notify the others that she had found one of the guns, McClain appeared.
{¶ 10} McClain became enraged, smashed a bottle in the kitchen, and threw
miscellaneous items around the house. A melee ensued. McClain shoved Cash to
the ground, and the other women intervened. In the chaos, Cash grabbed a kitchen
knife and stabbed McClain in his torso.
{¶ 11} The four women left the house and ran into the surrounding
neighborhood. McClain pursued them with a gun. At least one of the women
knocked on doors and rang doorbells of neighboring homes, triggering doorbell
security cameras to record. McClain caught Miller and Cash, pointed his gun at
them, and held them at point-blank range. As they begged him not to shoot,
McClain attempted to grab and kick at them. McClain then lost his footing and fell.
McClain fired one shot into the air and returned home.
{¶ 12} A neighbor camping in his backyard with his wife and children that
night was awakened by sounds of chaos. He moved his family to safety and called
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9-1-1. Police arrived, followed by the Warren Tactical Response Unit (“TRU”), a
special-weapons-and-tactics team (“SWAT”). McClain held himself inside the
home, where he had access to numerous guns, for several hours. After failed
attempts to negotiate a surrender, the Warren TRU deployed gas canisters through
the residence’s windows. Thirty minutes later, McClain surrendered and was taken
into custody.
{¶ 13} On January 4, 2023, McClain executed a waiver of indictment
acknowledging that he would be charged with the following:
• two counts of aggravated assault, fourth-degree felonies, in violation of
R.C. 2903.12(A)(2) and (B), with firearm specifications;
• one count of domestic violence, a first-degree misdemeanor, in violation of
R.C. 2919.25(A) and (D)(2);
• two counts of assault, first-degree misdemeanors, in violation of R.C.
2903.13(A) and (C);
• one count of inducing panic, a fifth-degree felony, in violation of R.C.
2917.31(A)(3) and (C)(4)(a), with a firearm specification; and
• one count of using weapons while intoxicated, a first-degree misdemeanor,
in violation of R.C. 2923.15(A) and (B).
The same day, McClain pleaded guilty to all charges. At McClain’s sentencing on
February 22, 2023, the court ordered McClain to do the following:
• serve three years of community control on basic probation;
• serve 100 hours of community service;
• undergo mental-health and drug/alcohol-abuse counseling;
• not contact Cash, Wallace, or Benton;
• forfeit seven firearms;
• pay court costs; and
• pay $649 in restitution to Wallace.
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{¶ 14} In McClain’s disciplinary case, the parties stipulated and the board
found that McClain’s illegal conduct adversely reflects on his fitness to practice
law, in violation of Prof.Cond.R. 8.4(h).
SANCTION
{¶ 15} When imposing sanctions for attorney misconduct, we consider all
relevant factors, including the ethical duties that the attorney violated, the
aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions
imposed in similar cases.
{¶ 16} In terms of aggravating factors, the parties stipulated and the board
found that McClain committed multiple offenses. See Gov.Bar R. V(13)(B)(4). In
addition, the parties stipulated and the board found six mitigating factors: McClain
lacked a prior disciplinary record, see Gov.Bar R. V(13)(C)(1), he lacked a
dishonest or selfish motive, see Gov.Bar R. V(13)(C)(2), and he made full and free
disclosure to the board and exhibited a cooperative attitude toward the disciplinary
proceedings, see Gov.Bar R. V(13)(C)(4). He also presented evidence of his good
character or reputation, see Gov.Bar R. V(13)(C)(5), had other penalties or
sanctions imposed for his misconduct, see Gov.Bar R. V(13)(C)(6), and underwent
other interim rehabilitation, see Gov.Bar R. V(13)(C)(8). The board also found
mitigating McClain’s acceptance of responsibility for his misconduct and his
acknowledgement of his wrongdoing, and it noted the rehabilitative efforts
McClain has undertaken to address his mental-health and substance-abuse issues.
{¶ 17} During relator’s investigation into this matter, McClain provided
relator with evidence of some of the measures he has taken in response to the
underlying incident. This evidence includes two letters from the University of
Cincinnati Lindner Center of Hope, one verifying his diagnoses of severe alcohol-
use disorder, depression, anxiety, and posttraumatic stress disorder and another
stating that McClain had completed an intensive outpatient program. The clinical
director of the program said that McClain was “looked upon as a leader by his
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peers” and “was a pleasure to have in group.” McClain also provided a letter from
the United States Department of Veterans Affairs verifying his completion of a
course in cognitive behavioral therapy for depression. In addition, McClain has
been attending Alcoholics Anonymous (“AA”) meetings and provided his AA
attendance sheets from December 2022 to March 2024.
{¶ 18} McClain has also been subject to and complied with certain
conditions separate from his criminal sentence. In a July 2023 court filing, McClain
agreed to participate in the Soberlink Program. That program required McClain to
provide a breath sample for alcohol testing before, during, and after visiting with
his children. McClain has never tested positive for alcohol under this program.
The agreed entry also requires McClain to provide proof three times a year that he
is continuing the mental-health treatment recommended by his care providers.
{¶ 19} As evidence of McClain’s good character and reputation, four letters
were provided. Darryl Brown, who currently serves as the senior supervising
attorney in the 88th Air Base Wing Legal Office, wrote that McClain is a highly
respected person and professional, that he has endured challenging life events, and
that he has extreme regret and remorse for his offenses. Lieutenant Colonel
Christopher Stallkamp, the Staff Judge Advocate for the 179th Airlift Wing in
Mansfield, Ohio, wrote that McClain’s conduct during the underlying incident was
out of character and that he typically has a “clear headed calming presence.” Polly
Sandness, a United States Air Force Colonel, wrote that she has known and
respected McClain since 2014, that he has a “calm head” and “warm heart,” and
that he has the fortitude and character to grow from every experience. Finally,
Colonel Teresa Edwards, Esq., Air National Guard Assistant to the Air Combat
Command Staff Judge Advocate at Langley Air Force Base, Virginia, wrote that
McClain is the “consummate professional attorney and military leader” and that his
misconduct was completely out of character for him.
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{¶ 20} The board concluded that the incident in this case was caused by
McClain’s excessive consumption of alcohol and untreated mental-health issues
and that McClain, “when sober, is a respectful and compassionate person, a loving
father, and a hardworking and talented attorney.” The board also acknowledged
that McClain has served the United States honorably since age 18, including three
six-month deployments overseas.
{¶ 21} As part of McClain’s recovery, he entered into a three-year contract
with OLAP in December 2022, and he has stayed sober since the date of the
underlying incident.
{¶ 22} In reaching its recommended sanction, the board relied on four cases.
In Warren Cty. Bar Assn. v. West, 1995-Ohio-333, the attorney became intoxicated
at his office and threatened suicide. His mother arrived, as did others and the police.
At one point, the attorney emerged from the building holding his mother’s arm with
one hand while waiving a gun with the other. His mother was able to escape her
son’s grasp. He also made threats to the police, and at one point discharged his gun,
although no one was shot. Eventually, the attorney got behind the wheel of a police
cruiser and backed it toward another cruiser. He exited that vehicle, still waving
the gun, until eventually one officer persuaded him to put the gun down. The
attorney pleaded guilty to carrying a concealed weapon, a felony.
{¶ 23} While our opinion mentioned no aggravating or mitigating factors,
the attorney had entered into a treatment program, participated in OLAP, and
submitted testimony in support of his competence and integrity as a practitioner.
Id. at ¶ 6. We determined that the attorney violated a former disciplinary rule
equivalent to Prof.Cond.R. 8.4(h)—engaging in conduct that adversely reflects on
an attorney’s fitness to practice law—and suspended him from the practice of law
for two years, with one year of the suspension stayed on conditions and with credit
given for the time he had served under an interim felony suspension. Id. at ¶ 11.
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{¶ 24} In Disciplinary Counsel v. Howard, 2009-Ohio-4173, a police
officer was outside the attorney’s home investigating a stolen vehicle. In doing so,
the officer shined a searchlight through his window. In response, the attorney fired
multiple shots at the officer from his home. This action culminated in a standoff
with the police and ended when a SWAT team fired tear gas into the home and
forced the attorney out of the house. The attorney pleaded guilty to assault with a
deadly weapon, a felony of the second degree, and inducing panic, a felony of the
fifth degree.
{¶ 25} The board found mitigating that the attorney had practiced law for
nearly 30 years with no discipline, that he had cooperated during the disciplinary
proceedings, that he had acknowledged his conduct and convictions, that other fines
and penalties had been imposed, and that he had presented evidence of good
character and reputation. Id. at ¶ 15. But the board found that the aggravating
circumstances overwhelmed any mitigation because the attorney had “twice shot a
loaded handgun at a uniformed police officer at close range.” Id. at ¶ 16. Having
suspended the attorney’s law license on an interim basis, we determined that he had
committed two violations of the disciplinary rules, including a violation of today’s
equivalent of Prof.Cond.R. 8.4(h), and we suspended him from the practice of law
for two years with credit for the time he had served under his interim felony
suspension and with conditions on his readmission. Id. at ¶ 3, 22, 24.
{¶ 26} In Disciplinary Counsel v. Whitfield, 2012-Ohio-2708, the attorney
had had an altercation with another man at a bar and hit him with a glass bottle,
causing glass to lodge in the victim’s eye, among other injuries. The attorney
pleaded guilty to one count of aggravated assault, a fourth-degree felony. In
addition, he had practiced law in Kentucky without being licensed there.
{¶ 27} In mitigation, the board found no prior discipline, no dishonest or
selfish motive, the imposition of other penalties and sanctions, and full and free
disclosure to the board and a cooperative attitude during the disciplinary
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proceedings. Id. at ¶ 9-10. We considered physical harm to the victim to be an
aggravating factor. Id. at ¶ 11. After suspending the attorney’s law license on an
interim basis, we determined that he violated Prof.Cond.R. 8.4(h) and 5.5(a)
(prohibiting a lawyer from practicing law in a jurisdiction in violation of the
regulation of the legal profession in that jurisdiction) and suspended him from the
practice of law for two years, with credit for the time he had served under his
interim suspension. Id. at ¶ 7, 14.
{¶ 28} Finally, in Disciplinary Counsel v. Hoover, 2022-Ohio-769, the
attorney became so confrontational with a tenant living on his property that the
tenant locked himself inside his apartment while the attorney threatened to shoot
him with the shotgun he was holding. The attorney then grabbed a baseball bat and
shattered a glass door to the tenant’s apartment. The tenant called the police, and
when they arrived, the attorney, holding the bat, approached an officer but then
dropped the bat and was arrested. He pleaded guilty to burglary, a third-degree
felony, and aggravated menacing, a first-degree misdemeanor.
{¶ 29} In mitigation, the board found no prior discipline, full and free
disclosure to the board and a cooperative attitude toward the disciplinary
proceedings, evidence of his good character and reputation, imposition of other
penalties and sanctions, a mental disorder, acceptance of responsibility for his
misconduct, and a demonstration of remorse. Id. at ¶ 17-20. There were no
aggravating factors. Id. at ¶ 17. Having suspended the attorney’s law license on an
interim basis, we determined that he violated Prof.Cond.R. 8.4(h) and suspended
him from the practice of law for two years with credit for the time he had served
under his interim felony suspension and with conditions on his reinstatement. Id.
at ¶ 2-3, 30.
{¶ 30} We agree with the board and find these cases relevant and persuasive
in determining McClain’s sanction. A theme among these cases, which resulted in
two-year license suspensions with credit for the time served under interim felony
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suspensions, is that they involve violence with a weapon, usually a firearm. Hoover
involved the threatened discharge of a firearm, but McClain actually discharged his
firearm, as did West and Howard. Additionally, alcohol fueled McClain’s violent
behavior, as it did West’s and Whitfield’s.
{¶ 31} We take McClain’s violent and reckless acts seriously. Mixing
weapons and alcohol not only endangered the women he assaulted and threatened,
but it created a danger to the public. As in West, Howard, Whitfield, and Hoover, a
two-year suspension from the practice of law is an appropriate sanction for the
egregious conduct displayed in this case.
{¶ 32} But we also must weigh the mitigation present in this case and the
efforts at rehabilitation that McClain has undertaken since the incident. Many of
the mitigating factors here align with those found in Howard, Whitfield, and
Hoover, which all resulted in two-year suspensions with credit for the time served
under interim felony suspensions. Further, as the board acknowledged, the incident
in this case can be attributed to McClain’s excessive alcohol intake and untreated
mental- health issues. And in dealing with his alcohol abuse and mental-health
issues, McClain has taken positive steps to rehabilitate himself. Since the incident,
McClain has stayed sober, completed various programs and therapies, and regularly
attended AA.
{¶ 33} In addition, this is McClain’s first instance of attorney misconduct,
he made full and free disclosure to the board, and he was cooperative during the
disciplinary proceedings. He has also had other sanctions imposed in the form of
his criminal sentence and the agreed entry in his divorce case. Further, McClain
has taken full responsibility for his misconduct. This is evident from his
disciplinary hearing, during which he retracted his earlier complaint to a judge that
Cash had no cause to stab him and should be prosecuted for doing so. McClain
also presented supportive letters vouching for his good reputation. Finally, we
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recognize McClain’s long and continued military service to this country, including
three six-month deployments overseas.
{¶ 34} Having thoroughly reviewed the record and our applicable
precedent, we adopt the board’s recommended sanction and conclude that a two-
year suspension, with credit for the time served under the interim felony
suspension, will adequately protect the public.
CONCLUSION
{¶ 35} Accordingly, we suspend William Allen McClain from the practice
of law in Ohio for two years, with credit for the time he has served under his March
15, 2023 interim felony suspension. In addition to the general requirements of
Gov.Bar R. V(24), McClain’s reinstatement is conditioned on McClain’s
demonstrating (1) compliance with the terms of the February 22, 2023 judgment
entry of sentence in Warren C.P. No. 22CR39902, including his three-year period
of community control, (2) compliance with the terms of his three-year OLAP
contract executed on December 13, 2022, and any extension thereof, (3)
compliance with the terms of the July 25, 2023 agreed entry in Warren C.P. No.
2016DR39162, (4) compliance with the treatment recommendations of McClain’s
mental-health professionals, and (5) proof from a qualified healthcare professional,
to a reasonable degree of psychological certainty, that McClain can return to the
competent, ethical, and professional practice of law. Costs are taxed to McClain.
Judgment accordingly.
__________________
Joseph M. Caligiuri, Disciplinary Counsel, and Benjamin B. Nelson,
Assistant Disciplinary Counsel, for relator.
William Allen McClain, pro se.
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