Disciplinary Counsel v. Burkhart

[This opinion has been published in Ohio Official Reports at 75 Ohio St.3d 188.]

OFFICE OF DISCIPLINARY COUNSEL v. BURKHART.

[Cite as Disciplinary Counsel v. Burkhart, 1996-Ohio-121.]

Attorney at law—Misconduct—Two-year suspension with credit for time served

from November 12, 1993, with conditions for reinstatement—Convictions

for theft in office and receiving stolen property.

(No. 95-1196—Submitted November 7, 1995—Decided March 5, 1996.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 93-74.

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{¶ 1} In a complaint filed on December 6, 1993, relator, Office of the

Disciplinary Counsel, charged respondent, Gladys F. Burkhart of Crestline, Ohio,

Attorney Registration No. 0022735, with one count of misconduct involving

violations of DR 1-102(A)(3) (illegal conduct involving moral turpitude), 1-

102(A)(4) (conduct involving fraud, deceit, dishonesty, or misrepresentation) and

1-102(A)(6) (conduct that adversely reflects on attorney’s fitness to practice law).

A panel of the Board of Commissioners on Grievances and Discipline of the

Supreme Court (“board”) heard the matter on May 10, 1995.

{¶ 2} The parties stipulated at the hearing to the facts underlying the

charged misconduct and to respondent’s violation of DR 1-102(A)(4) and (6), in

part, as follows:

“1. Respondent *** was admitted to practice law in the State of Ohio on

May 8, 1967. Respondent is subject to the Code of Professional Responsibility and

the Rules for the Government of the Bar of Ohio.

“2. On November 12, 1993, pursuant to Gov.Bar R. V, §5(A)(2), the

Supreme Court of Ohio indefinitely suspended Respondent from the practice of law

for her felony convictions. ***.

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“3. In July of 1979, Respondent was appointed Secretary of the Ohio

Optical Dispensers Board, an administrative board functioning under the statutes

of the State of Ohio. Respondent has also maintained a part-time legal practice in

Crestline, Ohio.

“***

“5. On or about September 30, 1993, a jury found Respondent guilty on

two counts of Theft in Office in violation of O.R.C. §2921.41, felonies of the third

degree; and a single count of Receiving Stolen Property in violation of O.R.C.

§2913.51, a felony of the fourth degree. ***

“6. On November 4, 1993, Respondent was sentenced to eighteen month

sentences on both the Theft in Office counts and a one-year sentence on the

Receiving Stolen Property count [said sentences to run concurrently]. The court

suspended the prison sentence, and Respondent was placed on probation for three

(3) years. Respondent was required to, inter alia, pay restitution of $8,291.64 and

a fine of $1,000.00, as conditions of her probation. ***

“7. Respondent acknowledges that her conduct violated DR 1-102(A)(4)

*** and, DR 1-102(A)(6) ***.”

{¶ 3} Respondent was convicted of theft in office and receiving stolen

property because while serving as Executive Secretary or Executive Director of the

Ohio Optical Dispensers Board (“OODB”), she made personal telephone calls at

public expense, she falsified travel vouchers, and she took a typewriter and

answering machine for her personal home use. Respondent admitted her

wrongdoing and expressed her remorse at the hearing. She explained that she had

not been able to obtain approval of legitimate OODB expenses for various

administrative reasons and had falsified the travel vouchers to receive the

reimbursement to which she considered herself entitled. She assured the panel that

she did not personally profit from the falsified vouchers. Respondent also

explained that she had taken the office equipment only after it had been replaced

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by OODB, and she had used it, at least in part, to conduct OODB business from her

home. Respondent has since returned the office equipment to OODB.

{¶ 4} The panel found that respondent violated DR 1-102(A)(4) and (6), but

did not find a violation of DR 1-102(A)(3). In response to relator’s contention that

a theft in office conviction necessarily constitutes illegal conduct involving moral

turpitude, the panel determined that respondent’s offenses were committed, in the

main, to receive reimbursement for expenses paid on OODB’s behalf and that this

circumstance redeemed what might otherwise be considered a base, vile or

depraved act in violation of DR 1-102(A)(3).

{¶ 5} In recommending a sanction for respondent’s misconduct, the panel

considered the testimony of five character witnesses and thirty-two letters from

respondent’s friends, professional acquaintances, and other members of her

community. All expressed their confidence in her integrity apart from the acts

leading to her felony convictions. The panel also considered respondent’s

undisputed competence as a practitioner, her prior unblemished legal career, and

the devastating effect of the convictions on her personal life.

{¶ 6} Relator suggested that respondent receive an indefinite suspension;

however, the panel saw no reason to conduct the character and competence review

required to gain reinstatement from an indefinite suspension. The panel instead

recommended the sanction suggested by respondent—a two-year suspension from

the practice of law with credit for the period of respondent’s suspension that began

on November 12, 1993.

{¶ 7} The board adopted the panel’s report, including its findings of fact,

conclusions of law and recommendation.

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Geoffrey Stern, Disciplinary Counsel, and Alvin E. Mathews, Assistant

Disciplinary Counsel, for relator.

Charles W. Kettlewell, for respondent.

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Per Curiam.

{¶ 8} Upon review of the record, we agree with the board’s findings that

respondent violated DR 1-102(A)(4) and (6), as well with its conclusion that

respondent did not violate DR 1-102(A)(3). We, therefore, reject the argument

raised in relator’s objections to the board’s report--that respondent’s theft in office

convictions involved “moral turpitude.”

{¶ 9} Acts of moral turpitude, although not subject to exact definition,

Cincinnati Bar Assn. v. Shott (1967), 10 Ohio St.2d. 117, 130, 39 O.O.2d 110, 118,

226 N.E.2d 724, 733, are characterized by “‘baseness, vileness, or the depravity in

private and social duties which man owes to his fellow man, or to society in general

***.’” State v. Adkins (1973), 40 Ohio App.2d 473, 475, 69 O.O.2d 416, 417, 320

N.E.2d 308, 310. Such acts must be measured against the accepted standards of

morality, honesty and justice prevailing upon the community’s collective

conscience, as distilled by a similarly principled judiciary. Accord In re McGrath

(1982) 98 Wash.2d 337, 342, 655 P.2d 232, 234. And, where it is not a statutorily

defined element of the charged offense, moral turpitude is a separate issue from the

finding of guilt in a criminal proceeding. Id. at 341-342, 655 P.2d at 234. Thus,

proof of a criminal conviction is generally not conclusive of the issue of moral

turpitude, which requires consideration of all the circumstances surrounding the

illegal conduct. Disciplinary Counsel v. King (1988), 37 Ohio St.3d 77, 78, 523

N.E.2d 857, 859.

{¶ 10} For these reasons, we cannot apply the per se rule relator urges and

declare respondent in violation of DR 1-102(A)(3) simply because we have done

so with respect to other attorneys convicted of felony theft offenses. See, e.g.,

Disciplinary Counsel v. Pizzedaz (1994), 68 Ohio St.3d 486, 828 N.E.2d 1359

(attorney committed five counts of theft in office, in violation of R.C. 2121.41, and

one count of tampering with records, in violation of R.C. 2913.42), and

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Disciplinary Counsel v. Koury (1990), 50 Ohio St.3d 150, 552 N.E.2d 941 (attorney

convicted of grand theft, in violation of R.C. 2913.02[A][2]). Rather, where moral

turpitude is disputed, an independent review of the circumstances underlying

criminal convictions is necessary to determine if they manifest the requisite lack of

social conscience and depravity beyond any established criminal intent. We have

conducted that review in this case and agree with the board that respondent’s crimes

were not motivated by an unmitigated interest in personal financial gain at the

expense of public or client coffers, which has been the hallmark of most theft-

related DR 1-102(A)(3) violations in the past. Accordingly, relator’s objection to

the board’s failure to find this misconduct is overruled.

{¶ 11} Relator also objects to the sanction recommended by the board,

arguing that respondent should receive an indefinite suspension with no credit for

the suspension imposed upon her felony convictions because (1) she is still on

probation for her offenses, and (2) she has not yet made complete restitution. We

agree and respondent concedes that she should serve out her probation period,

which she anticipates to end on or about November 4, 1996, and make full

restitution, including court costs, prior to reentering the practice of law. With

respect to the imposition of an indefinite suspension, however, we are confident

that respondent will never repeat her crimes and, like the board, consider further

review of her character and professional competence unnecessary.

{¶ 12} Accordingly, we order that respondent be suspended from the

practice of law in Ohio for a period of two years, and we grant her credit for the

suspension of her license on November 12, 1993; however, respondent must

complete her probation and pay full restitution, including court costs and interest at

the judgment rate, prior to her reinstatement, and in no case shall she be reinstated

prior to November 1, 1996. Costs taxed to respondent.

Judgment accordingly.

DOUGLAS, WRIGHT, RESNICK and PFEIFER, JJ., concur.

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MOYER, C.J., F.E. SWEENEY and COOK, JJ., dissent.

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COOK, J., dissenting.

{¶ 13} With all due respect, I cannot agree with the majority’s conclusion

that respondent’s conduct did not violate DR 1-102 (A)(3). The “Victim’s

Statement” in respondent’s presentence report shows that in addition to receiving

$1,193.41 from the false travel vouchers and $58 from state postage use, respondent

charged $2,560.72 in long distance telephone calls and accepted $4,479.51 from

falsifying overtime hours on time sheets.

{¶ 14} The respondent not only is charged with the responsibility to conduct

herself in accordance with the high ideals of our profession, but also, as a public

official, she had the additional trust imposed upon her by virtue of that office. Her

conduct, therefore, ought to be judged to be doubly unbefitting. No indulgence by

the disciplinary system is warranted and I would indefinitely suspend the

respondent with no credit for time served and condition reinstatement upon the

payment of full restitution, including court costs and interest at the judgment rate.

MOYER, C.J., and F.E. SWEENEY, J., concur in the foregoing dissenting

opinion.

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