Disciplinary Counsel v. McNeal

[Cite as Disciplinary Counsel v. McNeal, 131 Ohio St.3d 224, 2012-Ohio-785.]

DISCIPLINARY COUNSEL v. MCNEAL.

[Cite as Disciplinary Counsel v. McNeal, 131 Ohio St.3d 224, 2012-Ohio-785.]

Attorneys—Misconduct—Multiple violations of Rules of Professional Conduct,

including engaging in conduct involving dishonesty, fraud, deceit, or

misrepresentation and failing to cooperate in a disciplinary

investigation—One-year suspension.

(No. 2011-1732—Submitted December 7, 2011—Decided March 1, 2012.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 11-032.

__________________

Per Curiam.

{¶ 1} Respondent, Earl Darren McNeal of Columbus, Ohio, Attorney

Registration No. 0059218, was admitted to the practice of law in Ohio in 1992.

On April 11, 2011, relator, disciplinary counsel, filed a complaint alleging that

McNeal, a former lieutenant colonel in the United States Air Force Reserve Judge

Advocate General Corps, had resigned from the Air Force rather than face formal

separation procedures. The basis for McNeal’s resignation was an investigation

and report of the Air Force Office of Special Investigations finding that he had

violated the Uniform Code of Military Justice by submitting false pay forms to

obtain $6,518.54 in pay for hours he had not worked and using his military

LexisNexis account for personal purposes related to his private law practice.

{¶ 2} Relator mailed several letters of inquiry to McNeal. Although they

were not returned by the post office, McNeal did not respond. He failed to appear

for a deposition after a subpoena was hand delivered to his office and did not

respond to relator’s letter informing him of the termination of the investigation.

He ignored the investigator’s in-person suggestion that he contact relator and

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failed to respond to relator’s notice of intent to file a formal complaint.

Moreover, he did not answer relator’s complaint, which was served at his office

via certified mail.

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

on Grievances and Discipline considered relator’s motion and supporting

evidence and found, by clear and convincing evidence, that McNeal violated

Prof.Cond.R. 8.4(c) (prohibiting a lawyer from engaging in conduct involving

dishonesty, fraud, deceit, or misrepresentation), (d) (prohibiting a lawyer from

engaging in conduct that is prejudicial to the administration of justice), and (h)

(prohibiting a lawyer from engaging in conduct that adversely reflects on the

lawyer’s fitness to practice law), as well as 8.1(b) (prohibiting a lawyer from

knowingly failing to respond to a demand for information by a disciplinary

authority during an investigation) and Gov.Bar R. V(4)(G) (requiring a lawyer to

cooperate with a disciplinary investigation). The board adopted the master

commissioner’s findings of fact and misconduct, as do we.

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

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

See Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio St.3d 424, 2002-Ohio-4743, 775

N.E.2d 818, ¶ 16. They found only one aggravating factor—that McNeal failed to

cooperate in the disciplinary proceeding—and one mitigating factor—that he did

not have a prior disciplinary record. See BCGD Proc.Reg. 10(B)(1)(e) and

(B)(2)(a). While the master commissioner adopted relator’s recommendation that

McNeal be suspended from the practice of law for one year, the board

recommends that he be indefinitely suspended from the practice of law in Ohio.

{¶ 5} We have previously imposed a six-month conditionally stayed

suspension on an attorney who had recklessly submitted inaccurate time records

while working as a public servant, sometimes claiming to have worked full days

for the Ohio State Barber Board when he had spent part of the day attending court

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proceedings for his private legal clients. See Disciplinary Counsel v. Carroll, 106

Ohio St.3d 84, 2005-Ohio-3805, 831 N.E.2d 1000, ¶ 4-6, 15. Like McNeal,

Carroll did not have a prior disciplinary record. See BCGD Proc.Reg.

10(B)(2)(a). But Carroll also paid full restitution to the state, pled no contest to a

second-degree misdemeanor charge of dereliction of duty, cooperated fully in the

resulting disciplinary investigation, acknowledged that his conduct reflected

adversely on his fitness to practice law, and resigned from the barber board soon

after the inaccuracies in his timesheets came to light. Carroll at ¶ 6, 10; see also

BCGD Proc.Reg. 10(B)(2)(c), (d), and (f). Although Carroll’s recordkeeping was

deficient, the board found no evidence that he had acted with a dishonest or

selfish motive. Carroll at ¶ 10; see also BCGD Proc.Reg. 10(B)(2)(b). In

contrast, McNeal’s resignation came after the Air Force conducted a three-month

investigation and initiated a separation action against him. McNeal has not

cooperated in the disciplinary investigation, and there is no evidence that he has

paid any restitution.

{¶ 6} In Disciplinary Counsel v. Kraemer, 126 Ohio St.3d 163, 2010-

Ohio-3300, 931 N.E.2d 571, ¶ 4, we disciplined an attorney who had

misappropriated nearly $7,200 by failing to remit 60 percent of the fees collected

from the cases he worked to the firm, as he had agreed. Kraemer did not have a

prior disciplinary record, paid restitution to his former employer, cooperated in

the disciplinary proceedings, and after entering a guilty plea to a fifth-degree

felony-theft charge, was sentenced to three years of community control, fined

$1,000, and ordered to pay restitution, which he did. Id. at ¶ 4, 8; see also BCGD

Proc. Reg. 10(B)(2)(a), (c), (d), (f). He also demonstrated that he had a good

character and reputation outside of the charged misconduct and that his diagnosis

of adjustment disorder with mixed conduct and emotion qualified as a mitigating

factor. Id. at ¶ 8; see also BCGD Proc.Reg. 10(B)(2)(e), (g). Aggravating factors

included Kraemer’s dishonest or selfish motive in stealing his employer’s funds

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and his pattern of misconduct involving multiple offenses. Id. at ¶ 9, see also

BCGD Proc.Reg. 10(B)(1)(b), (d).

{¶ 7} In Kraemer, we acknowledged that a period of actual suspension is

generally required for attorneys who misappropriate law-firm funds or who

engage in a course of conduct involving dishonesty, fraud, deceit, or

misrepresentation. Id. at ¶ 13. Therefore, we imposed a two-year suspension but,

citing Kraemer’s acceptance of responsibility, his expression of remorse, the short

duration of his conduct, and the absence of any objection from relator, we

credited him for time served under an interim felony suspension arising from the

same conduct. Id. at ¶ 14. We also required Kramer to participate in mental-

health counseling and complete a two-year term of monitored probation. Id. at

¶ 15.

{¶ 8} We have indefinitely suspended attorneys who have engaged in a

pattern of misappropriating funds from their law firms over a period of years.

See, e.g., Toledo Bar Assn. v. Crossmock, 111 Ohio St.3d 278, 2006-Ohio-5706,

855 N.E.2d 1215 (attorney misappropriated approximately $300,000 from his

firm over a ten-year period and provided more than $6,500 in financial assistance

to a client); Disciplinary Counsel v. Yajko, 77 Ohio St.3d 385, 674 N.E.2d 684

(1997) (attorney deliberately schemed to defraud his employer over a period of

years by retaining the firm’s share of his fees and altering records to conceal his

theft); Disciplinary Counsel v. Crowley, 69 Ohio St.3d 554, 634 N.E.2d 1008

(1994) (indefinitely suspending attorney who misappropriated over $200,000

from his law firm by submitting fraudulent expense-reimbursement requests over

several years).

{¶ 9} While McNeal’s misconduct is serious, it does not rise to the level

of misconduct in Crossmock, Yajko, or Crowley. It is more serious than Carroll’s,

however, because McNeal has failed to respond to the disciplinary proceedings.

And unlike Kraemer, McNeal has not been charged with a crime. Nor is there

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any evidence of any chemical dependency or mental disability that would require

additional monitoring, as there was in Kraemer. Having weighed McNeal’s

conduct, the aggravating and mitigating factors, and the sanctions imposed for

comparable offenses, we conclude that a one-year suspension from the practice of

law in Ohio is the appropriate sanction in this case.

{¶ 10} Accordingly, Earl Darren McNeal is hereby suspended from the

practice of law in Ohio for one year. Costs are taxed to McNeal.

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 H. Coglianese,

Assistant Disciplinary Counsel, for relator.

______________________

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