Ohio State Bar Assn. v. Johnson

[This decision has been published in Ohio Official Reports at 96 Ohio St.3d 192.]

OHIO STATE BAR ASSOCIATION v. JOHNSON.

[Cite as Ohio State Bar Assn. v. Johnson, 2002-Ohio-3998.]

Attorneys at law Misconduct—Indefinite suspension—Committing extortion while

serving as a state senator—Conviction for interfering with commerce by

extortion under color of official right in violation of Section 1951, Title

18, U.S.Code.

(No. 2001-2204—Submitted March 12, 2002—Decided August 21, 2002.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 01-05.

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Per Curiam.

{¶1} We must decide in this case how to appropriately sanction an attorney

who committed extortion while serving as a state senator. The Board of

Commissioners on Grievances and Discipline of the Supreme Court recommended

that respondent, Jeffery D. Johnson of Cleveland, Ohio, Attorney Registration No.

0025058, be permanently disbarred from the practice of law in Ohio after finding

him in violation of 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 that is prejudicial to the

administration of justice), and 1-102(A)(6) (engaging in conduct that adversely

reflects on a lawyer’s fitness to practice law). However, because we believe that

respondent may, with committed efforts to rehabilitate, someday be capable of

contributing professionally to the community again, we have decided to suspend

respondent indefinitely from the practice of law.

{¶2} Respondent served in the Ohio Senate from 1990 until 1999. In 1999,

he was convicted of three counts of interfering with commerce by extortion under

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color of official right in violation of Section 1951, Title 18, U.S.Code (the “Hobbs

Act”). He was sentenced to 15 months’ incarceration, one year of supervised

release, 250 hours of community service, and payment of a small assessment. His

convictions were affirmed in United States v. Johnson (Sept. 5, 2000), C.A. 6 No.

99-3259, unreported, 2000 WL 1290317.

{¶3} Respondent was convicted of these crimes because in his capacity as

a state senator, he induced various grocers and others to either give money to his

election campaigns or to lend him money as a quid pro quo for his efforts on their

behalf before government agencies. In exchange for payoffs based loosely on the

value of the benefit to the contributor, respondent helped these constituents obtain

lottery licenses, Women, Infants, and Children Program grocery contracts, liquor

permits, and other governmentally regulated privileges. Respondent was caught

and stopped largely because one of the grocers cooperated in an FBI investigation

of his activities.

{¶4} We suspended respondent from the practice of law for an interim

period on September 15, 2000, after receiving a certified copy of the judgment entry

of his conviction. In re Johnson (2000), 90 Ohio St.3d 1410, 735 N.E.2d 451.

{¶5} On February 5, 2001, relator, Ohio State Bar Association, filed a

complaint charging that respondent’s conviction and the conduct underlying it

violated the Code of Professional Responsibility. A panel of the board heard the

cause, found the cited misconduct, and recommended that respondent be

permanently disbarred. The board adopted the panel’s findings, conclusions, and

recommended sanction.

{¶6} We concur in the board’s findings and conclusion that respondent

violated DR 1-102(A)(3), 1-102(A)(4), 1-102(A)(5), and 1-102(A)(6). We also

acknowledge that the board’s recommendation in this case is based firmly on

precedent establishing that permanent disbarment is the accepted sanction when

attorneys in public office commit extortion. Disciplinary Counsel v. DiCarlantonio

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January Term, 2002

(1994), 68 Ohio St.3d 479, 628 N.E.2d 1355; Disciplinary Counsel v. Mosely

(1994), 69 Ohio St.3d 401, 632 N.E.2d 1287. But after reviewing the testimony,

exhibits, and arguments of counsel, we are persuaded that the mitigation evidence

justifies a sanction less severe than permanent disbarment.

{¶7} In executing our constitutional responsibility to oversee the practice of

law in this state, our duty requires us to do more than just protect the public from

those ethically unfit to represent them. We must also be careful not to deprive the

public of those who, through sufficient rehabilitation, may be able to recover their

ethical orientation and serve competently in a professional capacity. Thus, when

an attorney has committed misdeeds that otherwise might have warranted

disbarment, we have considered the attorney’s community service as evidence that

he might be able to reform and have imposed an indefinite suspension from the

practice of law. Columbus Bar Assn. v. Elsass (1999), 86 Ohio St.3d 195, 713

N.E.2d 421. In fact, the severity of our disciplinary measures is often tempered in

consideration of an attorney’s previously unblemished professional record and

good public works. See Columbus Bar Assn. v. Culbreath (2000), 88 Ohio St.3d

271, 732, N.E.2d 985 (six-month suspension stayed with probation and mentoring

ordered based on community leader’s service) and Disciplinary Counsel v. Suarez

(1998), 84 Ohio St.3d 4, 701 N.E.2d 683 (no actual suspension where attorney had

no prior disciplinary infractions and dedicated her professional services to the

community).

{¶8} The facts considered mitigating by the board were the absence of any

prior instances of professional discipline against respondent, his cooperation in this

disciplinary process, and numerous favorable character references, many from

professional and community leaders. To this we add the fact that respondent at one

time effectively served the community. Even in sentencing respondent, United

States District Court Judge Kathleen M. O’Malley acknowledged letters from

supporters documenting his contributions, and that support, in combination with

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the relatively low degree of culpability she assessed, caused her to significantly

depart from sentencing guidelines and reduce his sentence dramatically.

{¶9} Respondent has unquestionably violated his oath of public office and

betrayed the public trust. His misconduct constitutes egregious violations of the

Code of Professional Responsibility. But he may someday be able to demonstrate

the ethical conduct that Ohio attorneys must practice. Because this possibility

exists, we find the sanction of indefinite suspension to be appropriate. Accordingly,

we order that respondent be suspended indefinitely from the practice of law. Costs

are taxed to respondent.

Judgment accordingly.

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

LUNDBERG STRATTON, JJ., concur.

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John J. Mueller and Eugene P. Whetzel, for relator.

Ben E. Espy, for respondent.

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