imposing an indefinite suspension for two incidents of drunk driving and failure to register
How later courts described this case
- imposing an indefinite suspension for two incidents of drunk driving and failure to register
Written by the judges who cited it.
The opinion
[This opinion has been published in Ohio Official Reports at 74 Ohio St.3d 146.]
OFFICE OF DISCIPLINARY COUNSEL v. PINCUS.
[Cite as Disciplinary Counsel v. Pincus, 1995-Ohio-174.]
Attorneys at law—Misconduct—Indefinite suspension with credit for time of
voluntary interim suspension—Convictions for drug abuse—Habitual late
payment of attorney registration fees—Failure to complete required amount
of continuing legal education hours for 1989-1990 biennium period and late
payment of resulting sanction—Practicing law while not registered as an
attorney.
(No. 94-2348—Submitted September 12, 1995—Decided December 6, 1995.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 93-03.
__________________
{¶ 1} In an amended complaint filed on February 7, 1994, relator, Office of
Disciplinary Counsel, charged respondent, Michael Allen Pincus, last known
address, Lakewood, Ohio, Attorney Registration No. 0008519, with five counts of
professional misconduct involving violations of, inter alia, DR 1-102(A)(3) (illegal
conduct involving moral turpitude) and 1-102(A)(6) (conduct that adversely
reflects on fitness to practice law); and Gov.Bar R. VI(1) (failure to timely register
as an attorney), VII(2)(A) (unauthorized practice of law), and X(3) (failure to
comply with continuing legal education requirements). A panel of the Board of
Commissioners on Grievances and Discipline of the Supreme Court (“board”)
heard the matter on October 7, 1994.
{¶ 2} The parties stipulated at the hearing to most of the facts alleged in the
complaint. With respect to the first two counts, the stipulations established that, on
March 18, 1992, respondent was convicted of driving under the influence (“DUI”)
and sentenced to ninety days in jail. Eighty-seven days of his sentence and a $200
SUPREME COURT OF OHIO
fine were suspended on the condition that he complete one year of probation and
attend Alcoholics Anonymous (“AA”) meetings.
{¶ 3} On April 13, 1992, due to conduct arising out of the same incident
that led to his DUI conviction, respondent was indicted for one count of drug abuse
in violation of R.C. 2925.11, a fourth-degree felony. Respondent pleaded no
contest to the indictment and was granted treatment in lieu of conviction. He was
placed on probation for eighteen months and ordered to attend Narcotics
Anonymous (“NA”), obtain psychiatric counseling, and submit to random testing
for substance abuse. On November 19, 1993, respondent pleaded guilty to another
charge of drug abuse arising from his possession of cocaine. On December 17,
1993, he was sentenced to six month’s incarceration for the second drug-abuse
conviction and six month’s incarceration, to be served concurrently, for having
failed to successfully complete the rehabilitative probation ordered for his first
drug-abuse charge. On April 13, 1994, respondent was granted shock probation
and placed on probation for two years.
{¶ 4} With respect to the third count, the stipulations established that
respondent paid his attorney registration fees for the 1987-1989 biennium period
over one year late, that he paid his registration fees for the 1989-1991 biennium
period over three years late, and that he paid his fees for the 1991-1993 biennium
period almost one year late.
{¶ 5} With respect to Count IV, the stipulations established that respondent
failed to complete the required amount of continuing legal education credit hours
for the 1989-1990 biennium period, that he was fined $610 as a sanction, and that
he did not pay this sanction until February 26, 1993.
{¶ 6} With respect to Count V, the stipulations established that respondent
was not registered as an attorney in Ohio from September 1, 1987 to September 13,
1988, but nevertheless practiced law, providing representation in at least five
separate cases.
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January Term, 1995
{¶ 7} From this evidence, the panel concluded that respondent had violated
DR 1-102(A)(3) and (6), and Gov.Bar R. VI(1), VII(2)(A), and X. In
recommending a sanction for this misconduct, the panel considered testimony and
correspondence from many of respondent’s professional acquaintances and friends,
all of whom described his honesty, integrity and competence. The panel also
considered respondent’s efforts to recover from alcohol and cocaine addiction,
which included his frequent attendance at AA or NA meetings and his submission
to random testing for substance abuse. The panel was convinced of respondent’s
sincere desire to maintain sobriety and was impressed with his support system.
However, it was concerned that respondent had been in recovery, which he
distinguished from the sobriety he had apparently maintained since his
incarceration, only six months. Indeed, respondent readily confessed that he had a
strong dependence on counseling and support meetings and that he needed to attend
such meetings nearly every day.
{¶ 8} Respondent’s comparatively brief recovery period, coupled with his
prior relapse during the rehabilitation period offered after his first drug-abuse
conviction, persuaded the panel to reject the sanction respondent suggested -- a
two-year suspension, with one year stayed, providing respondent complies with
various conditions during a probation period of unspecified length. The panel
instead recommended, consistent with relator’s suggestion, that respondent receive
an indefinite suspension from the practice of law. The board agreed, adopting the
panel’s findings of fact, conclusions of law, and recommendation.
__________________
Geoffrey Stern, Disciplinary Counsel, and Lori J. Brown, Assistant
Disciplinary Counsel, for relator.
Koblentz & Koblentz, Richard S. Koblentz and Peter A. Russell, for
respondent.
__________________
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SUPREME COURT OF OHIO
Per Curiam.
{¶ 9} Upon review of the record, we concur in the board’s findings of
misconduct. We also agree with its recommendation, but with some modification.
{¶ 10} Under Gov.Bar R. V(5)(A), attorneys in this state are subject to an
automatic interim suspension from the practice of law upon conviction of a felony;
however, in respondent’s case, no order of interim suspension was ever issued.1
Notwithstanding this, respondent stopped practicing law voluntarily at least as of
his sentencing in December 1993 because he no longer trusted his commitment to
his clients or his judgment on their behalf.. For this reason, we are inclined to
temper the indefinite suspension we agree is appropriate for respondent’s
misconduct and allow credit for his self-imposed interim suspension from the date
of his sentencing.
{¶ 11} Accordingly, we order that respondent be suspended indefinitely
from the practice of law in Ohio, but he is granted credit for the time of his voluntary
interim suspension from December 17, 1993. Costs taxed to respondent.
Judgment accordingly.
MOYER, C.J., DOUGLAS, WRIGHT, RESNICK and PFEIFER, JJ., CONCUR.
F.E. SWEENEY and COOK, JJ., concur in part and dissent in part.
__________________
COOK, J., concurring and dissenting.
{¶ 12} I would indefinitely suspend respondent with no credit for time
served.
F.E. SWEENEY, J., concurs in the foregoing opinion.
1. Pursuant to Gov.Bar R. V(5)(A), a judgment entry of conviction was certified to this court for
respondent’s first drug-abuse conviction, but an order of interim suspension did not follow,
apparently due to his treatment in lieu of conviction. The judgment entry for respondent’s second
drug-abuse conviction was not certified, nor was the judgment entry for the first conviction
recertified upon sentencing.
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