Disciplinary Counsel v. Anthony

[Cite as Disciplinary Counsel v. Anthony, 138 Ohio St.3d 129, 2013-Ohio-5502.]

DISCIPLINARY COUNSEL v. ANTHONY.

[Cite as Disciplinary Counsel v. Anthony, 138 Ohio St.3d 129,

2013-Ohio-5502.]

Attorney misconduct—Theft conviction—Conduct involving dishonesty, fraud,

deceit, or misrepresentation—Indefinite suspension.

(No. 2013-0226—Submitted April 10, 2013—Decided December 24, 2013.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 11-086.

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SYLLABUS OF THE COURT

An attorney’s suspension for failure to comply with attorney-registration

requirements is prior discipline and therefore is an aggravating factor

pursuant to BCGD Proc.Reg. 10(B)(1)(a).

____________________

Per Curiam.

{¶ 1} Respondent, Mark Allan Anthony of Dayton, Ohio, Attorney

Registration No. 0056048, was admitted to the practice of law in Ohio in 1991. In

2005, we suspended Anthony’s license for failing to register, and in 2009, we

suspended him again for failing to comply with continuing-legal-education

requirements. In 2011, we imposed an interim felony suspension based on his

theft conviction for embezzling money from his employer, St. Francis de Sales

Catholic Church, in Lebanon, Ohio. In re Anthony, 128 Ohio St.3d 1490, 2011-

Ohio-2221, 946 N.E.2d 760. All of these suspensions remain in effect.

{¶ 2} Based on Anthony’s felony conviction, relator, disciplinary

counsel, charged him with violations of the Code of Professional Responsibility

and the Rules of Professional Conduct. A three-member panel of the Board of

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Commissioners on Grievances and Discipline conducted a hearing, in which the

parties submitted stipulated facts and misconduct and jointly recommended a

sanction of an indefinite suspension. The parties, however, could not agree on

whether restitution should be a condition of Anthony’s possible reinstatement to

the practice of law. The panel accepted the parties’ stipulated facts and

misconduct and recommended that Anthony be indefinitely suspended and that

reinstatement be conditioned on the successful completion of a treatment plan for

Anthony’s gambling addiction and the establishment of a plan to pay restitution.

The board adopted the panel’s findings of fact, conclusions of law, and

recommended sanction, and neither party has objected to the board’s report.

{¶ 3} Upon review of the record, we accept the board’s findings of fact

and misconduct and impose an indefinite suspension subject to payment of

restitution as a condition of reinstatement.

Misconduct

{¶ 4} In 2004, Anthony voluntarily ceased the active practice of law and

focused on his employment as the business manager at St. Francis de Sales

Catholic Church. Over a period of almost four years, Anthony embezzled church

funds to pay for personal expenses and to maintain a gambling addiction.

Specifically, Anthony wrote at least 60 checks to himself or to cash from parish

funds, withdrew cash from various church accounts, and improperly used the

parish credit card more than 60 times. In February 2007, Anthony pled guilty to

grand theft, and the Warren County Court of Common Pleas sentenced him to a

12-month prison term and ordered him to pay restitution to St. Francis. After

Anthony had served four months in prison, the court modified his sentence to five

years of community control.

{¶ 5} The record here does not clearly set forth how much money

Anthony took from St. Francis. The parties stipulated, and the board found, that

Anthony “misappropriated approximately $118,000 in parish funds,” and the trial

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court ordered that he pay $118,891 in restitution. However, the parties also

stipulated that Gallagher Bassett Services, Inc., a firm hired by the Archdiocese of

Cincinnati to administer its insurance claims, calculated St. Francis’s total loss at

$127,649.15. When a panel member asked about this discrepancy at the hearing,

Anthony stated that he had “no idea how they came to their numbers,” and relator

explained that the prosecutor used the $118,891 figure, but the archdiocese and

St. Francis concluded that the total loss was more than that amount based on the

Gallagher Bassett findings.

{¶ 6} We agree with the board’s conclusion that Anthony violated DR 1-

102(A)(3) (prohibiting a lawyer from engaging in illegal conduct involving moral

turpitude), 1-102(A)(4) (prohibiting a lawyer from engaging in conduct involving

dishonesty, fraud, deceit, or misrepresentation), and 1-102(A)(6) (prohibiting a

lawyer from engaging in conduct that adversely reflects on the lawyer’s fitness to

practice law).1

Anthony’s criminal restitution order

{¶ 7} At the time of Anthony’s thefts, the Archdiocese of Cincinnati

maintained an employee-dishonesty insurance policy with Lloyd’s of London.

The terms of that policy specified that the archdiocese was responsible for the

first $100,000 of any employee-dishonesty claim, and the insurer was obligated

for losses over that amount. The archdiocese created a self-insured retention

(“SIR”) fund and required its parishes and other entities to pay a predetermined

1. In its report, the panel stated its intention to dismiss the alleged violation in count two of

relator’s complaint. Gov.Bar R. V(6)(G), which permits a unanimous panel of the board to order

the dismissal of a count without referring it to the board or this court for review, requires the panel

to provide notice to counsel of record and other interested parties. The record in this case does not

establish that the panel complied with the notice requirements of that rule. Instead, the panel

certified its findings of fact and recommendations to the board in accordance with Gov.Bar R.

V(6)(H) and (I). Because the panel did not order dismissal and provide the notices required by

Gov.Bar R. V(6)(G), we treat the purported dismissal as a recommendation that count two be

dismissed. See, e.g., In re Complaint Against Harper, 77 Ohio St.3d 211, 216, 673 N.E.2d 1253

(1996); Disciplinary Counsel v. Doellman, 127 Ohio St.3d 411, 2010-Ohio-5990, 940 N.E.2d 928,

¶ 31-33. We accept that recommendation and dismiss count two.

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amount to cover any claimed losses under the policy. In 2007, the SIR fund of the

archdiocese issued payment of $100,000 to St. Francis, and in 2008, Lloyd’s of

London issued its check for $27,149.15 to St. Francis, representing the remainder

of the claimed loss less a $500 deductible.

{¶ 8} In 2011, upon learning that St. Francis had been made whole,

Anthony moved the trial court to modify its restitution order, arguing that Ohio

law prohibited restitution to a victim in an amount in excess of the victim’s actual

economic loss. The trial court agreed and terminated Anthony’s community-

control supervision. Up to that time, Anthony had paid $13,425 in restitution—

$10,000 to St. Francis and $3,425 to Lloyd’s of London. Since then, Anthony has

not paid any restitution.

Sanction

{¶ 9} When imposing sanctions for attorney misconduct, we consider

several factors, including the ethical duties violated, the actual injury caused, the

existence of any aggravating and mitigating factors listed in BCGD Proc.Reg.

10(B), and the sanctions imposed in similar cases. Stark Cty. Bar Assn. v.

Buttacavoli, 96 Ohio St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶ 16;

Disciplinary Counsel v. Broeren, 115 Ohio St.3d 473, 2007-Ohio-5251, 875

N.E.2d 935, ¶ 21. In this case, relator, the panel, and the board have

recommended an indefinite suspension; upon consideration of the relevant factors,

we adopt that recommendation, but condition reinstatement on payment of the

loss and impose other conditions.

1. Aggravating and mitigating factors

{¶ 10} The board determined that Anthony’s prior attorney-registration

suspension was an aggravating factor, but it also considered as a mitigating factor

the fact that Anthony had no prior discipline except for that suspension. We have

not always been consistent in treating attorney-registration suspensions as

aggravating factors. Compare Cleveland Metro. Bar Assn. v. Kelly, 132 Ohio

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St.3d 292, 2012-Ohio-2715, 971 N.E.2d 922, ¶ 15 (“The only mitigating factor is

that, except for his current attorney-registration suspension, [respondent] does not

have a prior disciplinary record”) with Disciplinary Counsel v. Lape, 130 Ohio

St.3d 273, 2011-Ohio-5757, 957 N.E.2d 772, ¶ 11 (citing cases holding that an

attorney-registration suspension is an aggravating factor).

{¶ 11} An attorney’s suspension for failure to comply with attorney-

registration requirements is prior discipline and therefore is an aggravating factor

pursuant to BCGD Proc.Reg. 10(B)(1)(a). A registration suspension may not

weigh heavily against a respondent when the prior discipline consists only of a

registration suspension. In this case, although respondent has also been

sanctioned for failure to comply with continuing-legal-education (“CLE”)

requirements, pursuant to Gov.Bar R. X(5)(C), a sanction imposed for CLE

noncompliance “shall not be considered in the imposition of a sanction under

Gov.Bar R. V, Section 8.”

{¶ 12} In addition, other aggravating factors exist in this case: (1)

dishonest or selfish motive, (2) pattern of misconduct, (3) multiple offenses, (4)

harm to the victims of the misconduct, and (5) failure to make restitution. See

BCGD Proc.Reg. 10(B)(1)(b), (c), (d), (h), and (i). However, we reject the

board’s conclusion that Anthony submitted false evidence during the disciplinary

process, because the board fails to identify the false evidence and the record does

not support the board’s conclusion.

{¶ 13} In mitigation, the board found that Anthony disclosed his conduct

to the disciplinary board, cooperated in the disciplinary investigation, and had

already been punished for his conduct by serving a prison sentence. See BCGD

Proc.Reg. 10(B)(2)(d) and (f). At the hearing, relator argued that Anthony’s

gambling addiction could not be considered as a mitigating factor because

Anthony had not yet demonstrated a sustained period of successful treatment, as

required by BCGD Proc.Reg. 10(B)(2)(g)(iii). Anthony signed a contract with the

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Ohio Lawyers Assistance Program (“OLAP”) only three months before the panel

hearing and therefore did not establish that his addiction qualified as a mitigating

factor under BCGD Proc.Reg. 10(B)(2)(g)(iii), which requires a sustained period

of successful treatment. We nonetheless agree with the board that Anthony’s

diagnosed pathological gambling disorder, his OLAP contract, his

commencement of treatment with a clinical psychologist, and his involvement in

Gamblers Anonymous should be accorded some mitigating effect.

2. Applicable precedent

{¶ 14} To support its recommended sanction, relator cited three cases in

which we indefinitely suspended attorneys for misappropriating large amounts of

non-client funds, namely, Disciplinary Counsel v. Muntean, 127 Ohio St.3d 427,

2010-Ohio-6133, 940 N.E.2d 942 (attorney indefinitely suspended for

misappropriating nearly $50,000 from a county board while serving as the

treasurer), Disciplinary Counsel v. Kelly, 121 Ohio St.3d 39, 2009-Ohio-317, 901

N.E.2d 798 (attorney indefinitely suspended for embezzling over $40,000 from a

county humane society while serving as its volunteer treasurer), and Akron Bar

Assn. v. Smithern, 125 Ohio St.3d 72, 2010-Ohio-652, 926 N.E.2d 274 (attorney

indefinitely suspended for stealing over $100,000 from her employer law firm).

{¶ 15} In these cases, we were influenced by the relevant mitigating

factors—including restitution. In Muntean, we noted that the attorney had made

complete restitution as a condition of his criminal sentence. Id. at ¶ 5, 12. In

Kelly, we conditioned the attorney’s reinstatement on full restitution. Id. at ¶ 20.

And in Smithern, we conditioned the attorney’s reinstatement on compliance with

a settlement agreement between the attorney and the law firm’s insurer requiring

the attorney to make full restitution to the insurer. Id. at ¶ 10, 16.

{¶ 16} In addition, our recent opinion in Stark Cty. Bar Assn. v. Williams,

137 Ohio St.3d 112, 2013-Ohio-4006, 998 N.E.2d 427, while not controlling, is

useful in determining the appropriate sanction. In Williams, we permanently

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disbarred an attorney who, like Anthony, had committed theft offenses for

stealing substantial amounts of money in order to maintain a gambling addiction

and who, like Anthony, had failed to make restitution to her victims. However,

Williams showed little probability of recovery, and she continued gambling

during the pendency of her disciplinary proceedings, which violated the terms of

her community control and resulted in her serving the eight-and-a-half-year prison

sentence. Id. at ¶ 1, 23, 27. In contrast, the trial court in Anthony’s criminal case

successfully terminated him from community control in 2011. Moreover,

Anthony maintains that he has not gambled since 2007, and he has demonstrated

that he has been involved with Gamblers Anonymous since 2006. Thus, this case

is factually distinguishable from Williams.

3. Conclusion

{¶ 17} Anthony violated a private trust with his employer and caused

great harm to St. Francis de Sales Catholic Church. In addition, he has been

sanctioned for failing to register and failing to comply with CLE requirements,

and all of those sanctions remain in effect. We recognize that he also has served a

prison sentence, has been actively involved in Gamblers Anonymous, recently

signed a contract with OLAP, fully cooperated during the disciplinary process,

and has exhibited remorse. But he has paid only $13,425 in restitution, and the

SIR fund is owed $90,000 and the insurer is owed almost $24,000. On this

record, the board recommends that we indefinitely suspend Anthony and place

conditions on any potential reinstatement.

{¶ 18} Having reviewed Anthony’s ethical violations and the aggravating

and mitigating factors, and having considered the sanctions imposed for

comparable misconduct, we accept the board’s recommended sanction. However,

we modify its recommended conditions for reinstatement. As a condition of

reinstatement in this case, Anthony is ordered to make restitution of $127,649.15,

consisting of $100,000 to the SIR fund, $27,149.15 to Lloyd’s of London, and the

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$500 deductible payable to St. Francis de Sales Catholic Church, less amounts he

has paid to date.

{¶ 19} Accordingly, Mark Allen Anthony is hereby indefinitely

suspended from the practice of law in Ohio. To petition for reinstatement,

Anthony must show (1) successful completion of an OLAP-approved treatment

plan for gambling addiction and (2) the payment of restitution in the amount of

$127,649.15. Costs are taxed to Anthony.

Judgment accordingly.

PFEIFER, O’DONNELL, KENNEDY, and O’NEILL, JJ., concur.

O’CONNOR, C.J., and LANZINGER and FRENCH, JJ., dissent.

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LANZINGER, J., dissenting.

{¶ 20} I respectfully dissent and would hold that Anthony should be

permanently disbarred, to be consistent with our recent disbarment of the attorney

in Stark Cty. Bar Assn. v. Williams, 137 Ohio St.3d 112, 2013-Ohio-4006, 998

N.E.2d 427.

{¶ 21} The majority suggests that this case is “factually distinguishable,”

majority opinion at ¶ 16, from a disciplinary case in which a woman was

disbarred even though she claimed that she had an uncontrollable gambling

problem and presented the testimony of three professionals who opined that she

could successfully return to the practice of law after treatment. The majority

emphasizes that Williams had violated terms of her community control by

continuing to gamble, apparently taking as fact Anthony’s claim that he has not

gambled since 2007. And while it is true that Anthony’s period of community

control was terminated, this termination occurred because he convinced the court

that he should not be ordered to pay restitution covered through the church’s

insurance.

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{¶ 22} Williams is instructive rather than distinguishable, setting forth the

appropriate standard for discipline in these cases:

“We have consistently recognized that the presumptive

disciplinary sanction for misappropriation of client funds is

disbarment.” Disciplinary Counsel v. Longino, 128 Ohio St.3d

426, 2011-Ohio-1524, 945 N.E.2d 1040, ¶ 39; see also

Disciplinary Counsel v. Wickerham, 132 Ohio St.3d 205, 2012-

Ohio-2580, 970 N.E.2d 932, ¶ 16 (“The presumptive disciplinary

sanction for a pattern of misconduct involving dishonesty,

misappropriation, and lack of cooperation in disciplinary

proceedings is disbarment”). In addition, disbarment is “an

appropriate sanction when an attorney is convicted of theft

offenses.” Disciplinary Counsel v. Brickley, 131 Ohio St.3d 228,

2012-Ohio-872, 963 N.E.2d 818, ¶ 7.

Id. at ¶ 24.

{¶ 23} The board had found four mitigating factors in Williams: the

absence of a prior disciplinary record, good character or reputation, imposition of

other penalties, and Williams’s acknowledgment of the wrongfulness of her

actions. But we unanimously rejected the board’s recommendation of indefinite

suspension, stating:

“ ‘The continuing public confidence in the judicial system

and the bar requires that the strictest discipline be imposed in

misappropriation cases.’ ” Disciplinary Counsel v. Kelly, 121 Ohio

St.3d 39, 2009-Ohio-317, 901 N.E.2d 798, ¶ 17, quoting Cleveland

Bar Assn. v. Belock, 82 Ohio St.3d 98, 100, 694 N.E.2d 897

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(1998). For this reason, disbarment is the “starting point for

determining the required sanction.” Id. Contrary to the board’s

recommendation, none of the mitigating factors here warrant

straying from this starting point.

Id. at ¶ 29.

{¶ 24} Thus, we made a strong statement in Williams, and we explained

to attorneys and the public at large what requires the “strictest discipline.” This is

not a case in which to back away from that pronouncement. For over four years,

Anthony embezzled more than $100,000 from the church at which he was

employed. I do not believe that the mitigating factors warrant a departure from

the sanction of disbarment.

O’CONNOR, C.J., and FRENCH, J., concur in the foregoing opinion.

____________________

Karen H. Osmond, Assistant Disciplinary Counsel, for relator.

James T. Ambrose, for respondent.

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