Opinion

Disciplinary Counsel v. Gallagher

  • 82 Ohio St. 3d 51
  • 1998 Ohio 592
Court
Ohio Supreme Court
Filed
May 20, 1998
Status
Published
On the bench
Cook, J.
Cited by
12 cases
Authority
More cited than 80.4%

The opinion

[This opinion has been published in Ohio Official Reports at 82 Ohio St.3d 51.]

OFFICE OF DISCIPLINARY COUNSEL v. GALLAGHER.

[Cite as Disciplinary Counsel v. Gallagher, 1998-Ohio-592.]

Attorneys at law—Judges—Misconduct—Permanent disbarment—Conviction for

distributing cocaine.

(No. 97-2256—Submitted February 18, 1998—Decided May 20, 1998.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 96-51.

__________________

{¶ 1} While serving as an elected judge of the Court of Common Pleas of

Cuyahoga County, respondent Michael Gallagher of Brunswick, Ohio, Attorney

Registration No. 0024396, was arrested and charged with attempting to distribute

cocaine. Respondent was released on a $10,000 bond, which was later revoked

after he tested positive for cocaine and marijuana at a random drug screen. An

indictment was then filed charging respondent with five counts of violating federal

drug laws. After pleading guilty to distributing cocaine, respondent was sentenced

to twelve months in prison and fined $20,000.

{¶ 2} We disqualified respondent from acting as a judge while the

indictment was pending and until further order issued by this court. In re Gallagher

(1995), 73 Ohio St.3d 1442, 654 N.E.2d 353. Respondent did not resign from his

judgeship until seven months after his arrest. Following his conviction, we imposed

an interim suspension prohibiting respondent from practicing law in the state of

Ohio. In re Gallagher (1996), 75 Ohio St.3d 1470, 663 N.E.2d 1298.

{¶ 3} A panel of the Board of Commissioners on Grievance and Discipline

of the Supreme Court of Ohio (“board”) found upon stipulation that respondent had

violated DR 1-102(A)(3) (misconduct in engaging in illegal conduct involving

moral turpitude) and 1-102(A)(6) (misconduct in engaging in any other conduct

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that adversely reflects on his fitness to practice law). The panel recommended an

indefinite suspension with no credit for time served. The board thereafter adopted

the findings and conclusions of the panel and recommended that respondent be

suspended indefinitely from the practice of law in the state of Ohio without credit

for time served under the interim suspension. Respondent objects only to the

board’s recommendation that he get no credit for time served under the interim

suspension.

__________________

Jonathan E. Coughlan, Disciplinary Counsel, and Lori J. Brown, Assistant

Disciplinary Counsel, for relator.

Koblentz & Koblentz, Richard S. Koblentz and Peter A. Russell, for

respondent.

__________________

COOK, J.

{¶ 4} We adopt the findings and conclusions of the board, but we determine

that disbarment is the only appropriate sanction.

I

{¶ 5} Although we decide disciplinary matters on a case-by-case basis,

other similar disciplinary proceedings are helpful in determining sanctions.

Disbarment is not uncommon where DR 1-102(A)(3) and 1-102(A)(6) violations

stem from felony convictions. See Disciplinary Counsel v. Williams (1997), 80

Ohio St.3d 539, 687 N.E.2d 682 (respondent disbarred after pleading guilty to the

felonies of theft and receiving stolen property); Disciplinary Counsel v. Ostheimer

(1995), 72 Ohio St.3d 304, 649 N.E.2d 1217 (respondent disbarred following

felony convictions for forgery and attempted felonious sexual penetration);

Disciplinary Counsel v. Mosely (1994), 69 Ohio St.3d 401, 632 N.E.2d 1287 (judge

disbarred upon felony conviction for extortion). See, also, Cuyahoga Cty. Bar

Assn. v. Churilla (1997), 78 Ohio St.3d 348, 678 N.E.2d 515; Disciplinary Counsel

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January Term, 1998

v. Connaughton (1996), 75 Ohio St.3d 644, 665 N.E.2d 675; Dayton Bar Assn. v.

Bench (1994), 71 Ohio St.3d 202, 643 N.E.2d 93; and Disciplinary Counsel v.

Pizzedaz (1994), 68 Ohio St.3d 486, 628 N.E.2d 1359. These cases illustrate that

permanent disbarment is an appropriate sanction for conduct that violates DR 1-

102 and results in a felony conviction.

{¶ 6} Permanent disbarment is even more advised here because respondent

held judicial office at the time of his arrest. Judges are subject to the highest

standard of ethical conduct. Mahoning Cty. Bar Assn. v. Franko (1958), 168 Ohio

St. 17, 23, 5 O.O.2d 282, 285-286, 151 N.E.2d 17, 23; See, also, In re Complaint

Against Harper (1996), 77 Ohio St.3d 211, 673 N.E.2d 1253. Canon 1 of the Code

of Judicial Conduct states, “A judge shall uphold the integrity and independence of

the judiciary.” Canon 2 states, “A judge shall respect and comply with the law and

shall act at all times in a manner that promotes the public confidence in the integrity

and impartiality of the judiciary.” Respondent spurned these standards. We find

that disbarment is warranted under the given circumstances.

II

{¶ 7} Respondent argues that his sanction should be reduced because his

misdeeds were committed while he was suffering from an addiction to cocaine. He

further argues that his commitment to remain sober, demonstrated by active

participation in Alcoholics Anonymous and the Ohio Lawyers Assistance Program,

weighs in favor of leniency. Generally, we do temper our decision where substance

abuse is involved and the respondent has demonstrated a commitment to sobriety.

See Disciplinary Counsel v. Norris (1996), 76 Ohio St.3d 93, 666 N.E.2d 1087.

Mitigating factors have little relevance, however, when judges engage in illegal

conduct involving moral turpitude.

{¶ 8} In In the Matter of Hughes (Ind. 1994), 640 N.E.2d 1065, the Indiana

Supreme Court disbarred a municipal judge following felony convictions. The

court refused to allow mitigating factors to prevent disbarment because the judicial

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system suffers institutional harm when a judge commits serious ethical violations.

The court stated:

“Though this Court considers the mitigating factors presented, they cannot

overshadow Respondent’s egregious misconduct. His acts encompass a myriad of

grave departures from the behavior expected of lawyers, especially those who have

chosen to serve in public office as judges. He engaged in dishonest acts rising to

the level of felonious conduct. He has violated the public’s trust. Such actions,

when taken by a judge, likely tend to injure the public’s confidence in the judiciary.

Where those whose job it is to enforce the law break it instead, the public rightfully

questions whether the system itself is worthy of respect.” (Citation omitted.) Id. at

1067.

{¶ 9} When a judge’s felonious conduct brings disrepute to the judicial

system, the institution is irreparably harmed. See Canon 1 of the Code of Judicial

Conduct (“An independent and honorable judiciary is indispensable to justice in

our society.”). By this sanction, we aim to protect both the public and the integrity

of the judicial system itself. Mitigating factors relevant to this individual attorney

pale when he is viewed in his institutional role as a judge. We, therefore, find that

respondent deserves the full measure of our disciplinary authority. Respondent is

hereby permanently disbarred from the practice of law in Ohio. Costs taxed to

respondent.

Judgment accordingly.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER and LUNDBERG

STRATTON, JJ., concur.

LUNBERG STRATTON, J., concurs separately.

__________________

LUNDBERG STRATTON, J., concurring.

{¶ 10} I concur with the majority opinion but write separately to explain

further our decision to disbar the respondent.

4

January Term, 1998

{¶ 11} In the past, this court has often incorporated rehabilitative measures

into the conditions of discipline imposed upon the attorney whose abuse of alcohol

and/or controlled substances has impacted upon one or more violations of the

Disciplinary Rules. Disciplinary Counsel v. Clark (1997), 78 Ohio St.3d 302, 677

N.E.2d 1181; Cincinnati Bar Assn. v. Baas (1997), 79 Ohio St.3d 293, 681 N.E.2d

421; Toledo Bar Assn. v. Bell (1997), 78 Ohio St.3d 88, 676 N.E.2d 527;

Disciplinary Counsel v. Gosling (1997), 79 Ohio St.3d 113, 679 N.E.2d 1096;

Disciplinary Counsel v. Scurry (1996), 76 Ohio St.3d 95, 666 N.E.2d 1089;

Disciplinary Counsel v. Thomas (1996), 76 Ohio St.3d 578, 669 N.E.2d 833;

Disciplinary Counsel v. Norris (1996), 76 Ohio St.3d 93, 666 N.E.2d 1087;

Disciplinary Counsel v. Brown (1996), 77 Ohio St.3d 91, 671 N.E.2d 232;

Disciplinary Counsel v. Fortado (1996), 74 Ohio St.3d 604, 660 N.E.2d 1154.

However, this case is unique. Because a judge holds a position of utmost trust in

our society, this conduct merits permanent disbarment.

{¶ 12} If the respondent was addicted to cocaine before he assumed the

bench, then he took office knowing he would adjudicate drug-related cases and

sentence drug felons while he too was violating the law.1 If he began his cocaine

use after he assumed the bench, then he deliberately and voluntarily began using

the drug knowing it was illegal while, at the same time, he was sentencing other

drug abusers for the same behavior. This is hypocrisy.

{¶ 13} Although we have accepted drug or alcohol addiction as mitigation

and we have tailored our sanctions to provide for rehabilitation, addiction is no

excuse for respondent’s decision to use cocaine for the first time. Therefore,

respondent’s presentation of mitigating evidence of his cocaine addiction provides

no justification for his initial act in violation of the law.

1. Respondent admits to abusing alcohol when he took the bench, but denies cocaine use at that

time.

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{¶ 14} In addition, although the law did not require the respondent to resign

from office upon his arrest, and he retained a presumption of innocence, respondent

knew he was using illegal substances. He had a moral obligation to resign from his

position. Yet he continued to draw his judicial salary, funded by taxpayer monies,

from August 3, 1995 until March 4, 1996. This created an appearance of

impropriety and seriously damaged the public image of the judiciary. Respondent’s

actions certainly speak to his failure to accept responsibility for his conduct and to

his lack of character.

{¶ 15} In order to restore public trust in the integrity and moral conduct of

the judiciary, this case merits serious treatment. Therefore, disbarment is the most

appropriate response for such egregious conduct.

__________________

6

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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