Disciplinary Counsel v. Brickley

[Cite as Disciplinary Counsel v. Brickley, 131 Ohio St.3d 228, 2012-Ohio-872.]

DISCIPLINARY COUNSEL v. BRICKLEY.

[Cite as Disciplinary Counsel v. Brickley, 131 Ohio St.3d 228, 2012-Ohio-872.]

Attorneys—Misconduct—Convictions of felony theft involving client funds—

Illegal acts reflecting adversely on lawyer’s honesty—Conduct involving

deceit or dishonesty—Conduct adversely reflecting on fitness to practice

law—Permanent disbarment.

(No. 2011-1728—Submitted December 7, 2011—Decided March 6, 2012.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 10-080.

__________________

Per Curiam.

{¶ 1} Respondent, Barry Frederick Brickley, Attorney Registration No.

0011435, whose address of record is in Mansfield, Ohio, was admitted to the

practice of law in Ohio in 1984. We indefinitely suspended his license in

December 2002, and it has not been reinstated. Richland Cty. Bar Assn. v.

Brickley, 97 Ohio St.3d 285, 2002-Ohio-6416, 779 N.E.2d 750.

{¶ 2} On August 16, 2010, relator, disciplinary counsel, filed a

complaint alleging that between February and September 2006, while working as

a paralegal for a Mansfield attorney, Brickley wrote seven checks to himself from

the attorney’s client trust account without authorization and deposited them into

his personal bank account.

{¶ 3} His actions were not detected until December 2008. Brickley

pleaded no contest to felony counts of theft, forgery, and receiving stolen property

and was accepted into the Richland County prosecuting attorney’s diversion

program. Based upon this conduct, relator alleged that Brickley had violated

Prof.Cond.R. 8.4(b) (prohibiting a lawyer from committing an illegal act that

SUPREME COURT OF OHIO

reflects adversely on the lawyer’s honesty or trustworthiness), (c) (prohibiting a

lawyer from engaging in conduct involving dishonesty, fraud, deceit, or

misrepresentation), and (h) (prohibiting a lawyer from engaging in conduct that

adversely reflects on the lawyer's fitness to practice law).

{¶ 4} Before filing the complaint, relator sent two letters of inquiry to

Brickley, one at the address listed in his attorney registration and another at an

alternate Mansfield address. Both letters were returned, but one bore a

forwarding address in Savannah, Georgia. A third letter was sent to the Georgia

address and was signed for by a Jo Ann Wohlert. A fourth letter was hand-

delivered to Brickley at the Richland County Jail, but he did not respond to either

inquiry. A letter informing Brickley that the investigation had terminated with a

finding of probable cause was not returned to relator, nor was the notice of intent

to file a complaint, although the latter was signed for by someone whose signature

is illegible. Brickley did not respond to either letter. The complaint was served by

certified mail at the Savannah, Georgia address provided by the postal service, but

Brickley has not filed an answer. Therefore, on December 23, 2010, relator filed

a motion for default.

{¶ 5} A master commissioner appointed by the Board of Commissioners

on Grievances and Discipline considered relator’s motion and supporting

evidence in compliance with Gov.Bar R. V(6)(F)(1)(b) (requiring default motions

in attorney disciplinary proceedings to be supported by sworn or certified

documentary prima facie evidence). The master commissioner found by clear and

convincing evidence that Brickley had violated Prof.Cond.R. 8.4(b), (c), and (h),

as alleged in relator’s complaint. The board adopted the master commissioner’s

findings of fact and misconduct.

{¶ 6} In recommending a sanction, the master commissioner and board

considered the aggravating and mitigating factors listed in BCGD Proc.Reg. 10.

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

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January Term, 2012

N.E.2d 935, ¶ 21. As aggravating factors, the master commissioner found that

Brickley had a prior disciplinary record, engaged in a pattern of misconduct

involving multiple offenses, and failed to cooperate in the disciplinary process.

See BCGD Proc.Reg. 10(B)(1)(a), (c), (d), and (e). The sole mitigating factor was

that as of December 13, 2010, Brickley had been making restitution payments as

part of his diversion program.

{¶ 7} The master commissioner acknowledged that Brickley had been

indefinitely suspended from the practice of law and was working as a paralegal

when he committed his misconduct, and therefore could not have had clients of

his own. Nonetheless, he equated Brickley’s theft with the misappropriation of

client funds because the funds came from the client trust account of the attorney

who employed him. Observing that disbarment is the presumptive sanction for

the misappropriation of client funds, Cleveland Bar Assn. v. Dixon, 95 Ohio St.3d

490, 2002-Ohio-2490, 769 N.E.2d 816, ¶ 15, and is an appropriate sanction when

an attorney is convicted of theft offenses, Disciplinary Counsel v. Muhlbach, 104

Ohio St.3d 340, 2004-Ohio-6563, 819 N.E.2d 698, ¶ 11, the master commissioner

recommended that Brickley be permanently disbarred. The board adopted the

master commissioner’s findings of fact and misconduct, as well as his

recommended sanction.

{¶ 8} Accordingly, we permanently disbar Barry Frederick Brickley

from the practice of law in Ohio. Costs are taxed to Brickley.

Judgment accordingly.

O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,

LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.

__________________

Jonathan E. Coughlan, Disciplinary Counsel, and Heather Coglianese,

Assistant Disciplinary Counsel, for relator.

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