Disciplinary Counsel v. Zaccagnini

[Cite as Disciplinary Counsel v. Zaccagnini, 130 Ohio St.3d 77, 2011-Ohio-4703.]

DISCIPLINARY COUNSEL v. ZACCAGNINI.

[Cite as Disciplinary Counsel v. Zaccagnini,

130 Ohio St.3d 77, 2011-Ohio-4703.]

Attorneys—Misconduct—Federal conviction of conspiracy—Unlawfully obtaining

county contracts for commercial property appraisals through kickbacks to

county auditor employees—Permanent disbarment.

(No. 2011-0283—Submitted April 6, 2011—Decided September 21, 2011.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 10-079.

__________________

Per Curiam.

{¶ 1} Respondent, Bruce Alan Zaccagnini, who is currently incarcerated at

the Morgantown Federal Correctional Institution, Attorney Registration No.

0034358, was admitted to the practice of law in Ohio in 1986.

{¶ 2} In May 2010, we imposed an interim felony suspension from the

practice of law against respondent after he pleaded guilty to one count of felony

conspiracy in the United States District Court for the Northern District of Ohio,

Eastern Division, and was sentenced to 60 months’ incarceration and ordered to

pay restitution of $3,215,845 to Cuyahoga County. In re Zaccagnini, 125 Ohio

St.3d 1430, 2010-Ohio-2261, 927 N.E.2d 3.

{¶ 3} On August 16, 2010, relator, Disciplinary Counsel, filed a complaint

charging respondent with a single count of professional misconduct arising from

his participation in a conspiracy to unlawfully obtain lucrative contracts to

provide appraisals of commercial real estate for the Cuyahoga County Auditor’s

Office. Respondent was served with a copy of the complaint and forwarded it to

his attorney, who requested and received an extension of time to respond.

SUPREME COURT OF OHIO

{¶ 4} Respondent did not file an answer, and relator moved for default

pursuant to Gov.Bar R. V(6)(F). A master commissioner appointed by the Board

of Commissioners on Grievances and Discipline reviewed the evidence, made

findings of misconduct and conclusions of law, and recommended that respondent

be permanently disbarred from the practice of law in Ohio, all of which the board

adopted. We adopt the board’s report and permanently disbar respondent.

Misconduct

{¶ 5} The evidence demonstrates that on October 1, 2009, respondent

pleaded guilty to one felony count of conspiracy in violation of Section 1951,

Title 18, U.S.Code. The plea agreement states that respondent participated in a

conspiracy with his law partners and others to unlawfully obtain contracts for

certain businesses, substantially controlled by one of his partners, to perform

commercial appraisals for the Cuyahoga County auditor.

{¶ 6} From March 1998 through January 2008, as a result of the

conspiracy, the businesses obtained more than $21 million in commercial

appraisal contracts with the county. During that time, respondent and his partners

paid approximately $1.4 million in kickbacks to two employees of the auditor’s

office. Respondent’s firm, in turn, performed all of the bookkeeping, invoicing,

and banking for the businesses and collected almost $9 million in fees—more

than the value of the services they provided.

{¶ 7} One of respondent’s partners died in 2006, and the law firm

dissolved. Respondent and a relative of one of his former partners formed another

business to continue the conspiracy. That business collected revenue of almost

$3.7 million, which exceeded the value of the services it provided.

{¶ 8} Based upon this conduct, the board found that respondent had

violated DR 1-102(A)(3) (prohibiting a lawyer from engaging in illegal conduct

involving moral turpitude), DR 1-102(A)(4) and Prof.Cond.R. 8.4(c) (both

prohibiting a lawyer from engaging in conduct involving dishonesty, fraud,

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January Term, 2011

deceit, or misrepresentation), DR 1-102(A)(5) and Prof.Cond.R. 8.4(d)

(prohibiting a lawyer from engaging in conduct that is prejudicial to the

administration of justice), and DR 1-102(A)(6) and Prof.Cond.R. 8.4(h)

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

lawyer’s fitness to practice law).1 We adopt the board’s findings of fact and

misconduct.

Sanction

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

relevant factors, including the ethical duties that the lawyer violated 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. In making a final

determination, we also weigh evidence of the aggravating and mitigating factors

listed in Section 10(B) of the Rules and Regulations Governing Procedure on

Complaints and Hearings Before the Board of Commissioners on Grievances and

Discipline (“BCGD Proc.Reg.”). Disciplinary Counsel v. Broeren, 115 Ohio

St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21.

{¶ 10} The board found that respondent’s lack of a prior disciplinary

record and the imposition of criminal sanctions, including incarceration and an

order of restitution, were mitigating factors. See BCGD Proc.Reg. 10(B)(2)(a)

and (f). Aggravating factors found by the board include respondent’s dishonest or

selfish motive and his “widespread pattern of criminal misconduct and corruption

that resulted in great harm to the residents of Cuyahoga County and all county

government.” See BCGD Proc.Reg. 10(B)(1)(b), (c), and (h).

1. Relator charged respondent with misconduct under applicable rules for acts occurring before

and after February 1, 2007, the effective date of the Rules of Professional Conduct, which

supersede the Disciplinary Rules of the Code of Professional Responsibility. Although both the

former and current rules are cited for the same acts, the allegations comprise a single continuing

ethical violation. Disciplinary Counsel v. Freeman, 119 Ohio St.3d 330, 2008-Ohio-3836, 894

N.E.2d 31, ¶ 1, fn. 1.

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SUPREME COURT OF OHIO

{¶ 11} Relator seeks and the board recommends respondent’s permanent

disbarment from the practice of law in Ohio.

{¶ 12} In Toledo Bar Assn. v. Ritson, 127 Ohio St.3d 89, 2010-Ohio-4504,

936 N.E.2d 931, ¶ 4, 36, we permanently disbarred an attorney who had

participated for nearly five years in a criminal conspiracy to induce real estate

professionals to join two professional organizations by falsely claiming that

members would receive errors-and-omissions insurance as a benefit of their

membership. We noted that Ritson’s actions “caused harm to approximately

3,000 victims and resulted in a restitution order totaling $3.7 million.” Id. at ¶ 34.

Here, respondent’s conduct has lasted approximately ten years, victimized every

taxpayer in Cuyahoga County, and resulted in a five-year prison sentence and a

restitution order of $3,215,845.

{¶ 13} Having reviewed the record, weighed the aggravating and

mitigating factors, and considered the sanction imposed for comparable conduct,

we adopt the board’s recommended sanction.

{¶ 14} Accordingly, Bruce Alan Zaccagnini is permanently disbarred from

the practice of law in Ohio.

{¶ 15} Costs are taxed to respondent.

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 Joseph M. Caligiuri,

Assistant Disciplinary Counsel, for relator.

______________________

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