The opinion
[This opinion has been published in Ohio Official Reports at 87 Ohio St.3d 221.]
OFFICE OF DISCIPLINARY COUNSEL v. KINANE.
[Cite as Disciplinary Counsel v. Kinane, 1999-Ohio-33.]
Attorneys at law—Misconduct—Permanent disbarment—Conviction of theft in
office.
(No. 99-1164—Submitted August 25, 1999—Decided November 10, 1999.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 98-53.
__________________
{¶ 1} In August 1997, respondent, Donald E. Kinane, Jr. of Cincinnati,
Ohio, Attorney Registration No. 0023958, an assistant county public defender, was
charged with theft in office for appropriating bond money that had been paid by
and was to be returned to the defendants he had represented. Respondent entered a
plea of guilty and was sentenced to two years in prison, with the entire term
suspended and respondent placed on probation for five years and ordered to make
complete restitution. In November 1997, based on this criminal conviction, we
suspended respondent for an interim period. In re Kinane (1997), 80 Ohio St.3d
1453, 686 N.E.2d 526.
{¶ 2} On August 10, 1999, relator, Office of Disciplinary Counsel, filed a
complaint charging respondent with several disciplinary violations based on the
events related to his criminal conviction. Unable to serve the complaint on the
respondent, the Sheriff of Hamilton County served the Clerk of the Supreme Court
as provided by Gov.Bar R. V(11)(B). After respondent failed to answer, the matter
was submitted to a panel of the Board of Commissioners on Grievances and
Discipline of the Supreme Court (“board”) on relator’s motion for default.
{¶ 3} The panel found that from 1993 until early 1997, respondent was a
public defender who represented numerous criminal defendants in the Miamisburg
SUPREME COURT OF OHIO
Municipal Court and the Montgomery County Court of Common Pleas. During
this time, respondent routinely received checks representing the return of bond
money posted by his clients. Instead of turning the bond money over to the clients
after the subtraction of court costs and fines, respondent endorsed the checks, paid
the costs and fines, and retained the balance in his own account.
{¶ 4} Relator presented evidence that from February 1993 until March
1997, respondent received one hundred twenty-nine checks that should have been
returned to the persons posting bonds. The panel cited a specific example of such
conduct in the case of David C. Lambert, who was arrested in June 1996 for a
misdemeanor and posted a $250 bond. On July 1, 1996, the bond was amended to
“own recognizance.” A check for $250 was made payable to respondent who, as a
public defender, was representing Lambert, and the check was endorsed by
respondent. On July 15, 1996, the case was dismissed with no cost, but Lambert
did not receive a return of his $250. The panel also cited similar conduct in the
case of Sheba Davis, who was arrested for a traffic violation in July 1996 and
posted a $450 bond. Respondent, who was assigned by the public defender’s office
to represent Davis, told her the fine amount would be close to the bond amount and
had her sign a forfeit of her bond. The bond was later amended to “own
recognizance,” and a check was made out to respondent for $425, being the $450
bond amount less a $25 clerk fee. Respondent endorsed the check and retained the
proceeds.
{¶ 5} The panel concluded, in regards to the Lambert and Davis matters,
that respondent violated DR 1-102(A)(3) (engaging in illegal conduct involving
moral turpitude), 1-102(A)(4) (engaging in conduct involving dishonesty, fraud,
deceit, or misrepresentation), 1-102(A)(5) (engaging in conduct prejudicial to the
administration of justice), and 1-102(A)(6) (engaging in conduct that adversely
reflects on the lawyer’s fitness to practice law), 7-101(A)(3) (intentionally
prejudicing or damaging client during the course of the professional relationship),
2
January Term, 1999
and 9-102(B)(4) (failing to promptly pay or deliver to the client the funds in the
possession of the lawyer which the client is entitled to receive). The panel further
concluded, as to the other specific instances investigated by the sheriff, that by
retaining bond money, respondent again violated the above-cited Disciplinary
Rules.
{¶ 6} The panel recommended that the respondent be indefinitely
suspended from the practice of law. The board adopted the findings, conclusions,
and recommendation of the panel.
__________________
Johathan E. Coughlan, Disciplinary Counsel, and Lori J. Brown, First
Assistant Disciplinary Counsel, for relator.
__________________
Per Curiam.
{¶ 7} We adopt the findings and conclusions of the board but not its
recommendation. As we said in Cleveland Bar Assn. v. Belock (1998), 82 Ohio
St.3d 98, 100, 694 N.E.2d 897, 899, “the continuing public confidence in the
judicial system and the bar requires that the strictest discipline be imposed in
misappropriation cases.” Respondent’s pattern of betraying the trust and
confidence of clients was particularly egregious since he was a public defender.
{¶ 8} Respondent is hereby disbarred from the practice of law in Ohio.
Costs are taxed to respondent.
Judgment accordingly.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
__________________
3