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.
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{¶ 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.
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LUNDBERG STRATTON, J., concurring.
{¶ 10} I concur with the majority opinion but write separately to explain
further our decision to disbar the respondent.
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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.
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