Disciplinary Counsel v. McAuliffe

[Cite as Disciplinary Counsel v. McAuliffe, 121 Ohio St.3d 315, 2009-Ohio-1151.]

DISCIPLINARY COUNSEL v. MCAULIFFE.

[Cite as Disciplinary Counsel v. McAuliffe,

121 Ohio St.3d 315, 2009-Ohio-1151.]

Judges — Misconduct — Federal convictions for crimes involving arson, fraud,

and conspiracy — Respondent disbarred.

(No. 2008-1200 — Submitted August 26, 2008 — Decided March 19, 2009.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 05-037.

__________________

Per Curiam.

{¶1} Respondent, Don S. McAuliffe, Attorney Registration No.

0014629, formerly of Pickerington, Ohio, was admitted to the practice of law in

Ohio in 1972 and became a judge of the Fairfield County Municipal Court in

1997. The Board of Commissioners on Grievances and Discipline found that

McAuliffe violated the Code of Professional Responsibility and the Code of

Judicial Conduct by burning down his house in order to defraud an insurance

company, committing several federal felonies in the process. The board

recommended McAuliffe’s permanent disbarment. McAuliffe objects to the

board’s report and recommendations. We overrule the objections and order that

McAuliffe be permanently disbarred.

The Criminal and Disciplinary Proceedings against McAuliffe

{¶2} In 2003, the Grand Jury for the United States District Court for the

Southern District of Ohio indicted McAuliffe on two counts of mail fraud, one

count of use of fire to commit mail fraud, one count of conspiracy to use fire to

commit mail fraud, and two counts of money laundering. McAuliffe was found

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guilty of these offenses on February 13, 2004, and was sentenced on December

16, 2004.

{¶3} On January 24, 2005, we suspended McAuliffe’s license to

practice law pursuant to Gov.Bar R. V(5)(A)(4) (automatic interim suspension for

felony conviction). In re McAuliffe, 104 Ohio St.3d 1455, 2005-Ohio-235, 821

N.E.2d 572.

{¶4} Later that year, relator, Disciplinary Counsel, filed a complaint

charging McAuliffe with violating two canons of the Code of Judicial Conduct

and four provisions of the Code of Professional Responsibility. However, the

parties notified the Board of Commissioners on Grievances and Discipline that

McAuliffe had filed an appeal of his convictions. Pursuant to Gov.Bar R.

V(5)(C), the board stayed the disciplinary proceeding pending the conclusion of

the criminal appeal.

{¶5} After successfully appealing his sentence, McAuliffe was

resentenced on December 20, 2005. As part of his sentence, McAuliffe was fined

$150,000 and ordered to make restitution to the Grange Insurance Company in the

amount of $235,000, plus interest. McAuliffe paid both amounts.

{¶6} McAuliffe also appealed the judgment of conviction, but to no

avail; the United States Court of Appeals for the Sixth Circuit affirmed his

convictions and sentences on June 22, 2007. United States v. McAuliffe (C.A.6,

2007), 490 F.3d 526. The United States Supreme Court denied McAuliffe’s

petition for certiorari on October 15, 2007, concluding the appellate review of

McAuliffe’s case. See McAulife [sic] v. United States (2007), __ U.S. __, 128

S.Ct. 442, 169 L.Ed.2d 309.

{¶7} After the board lifted its stay of this disciplinary matter, a panel of

the Board of Commissioners on Grievances and Discipline held a hearing on

April 10, 2008. McAuliffe stipulated that he had been convicted of the crimes

charged in the federal indictment, even while claiming to be innocent of those

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charges. He specifically declined to present any mitigating evidence at the

hearing, on the ground that presenting such evidence would be inconsistent with

his protestations of innocence.

{¶8} At the hearing, McAuliffe, through counsel, informed the panel

that he intended to collaterally attack his convictions by filing a motion to vacate,

set aside, or correct his sentence under Section 2255, Title 28, U.S.Code, a

provision that authorizes procedures and remedies for attacks on criminal

sentences. (After the hearing, McAuliffe did in fact file such a motion, pro se, in

the federal district court.) McAuliffe asked the panel to stay the proceeding and

continue his indefinite suspension “until the conclusion of all his legal

proceedings, including the [Section 2255] motion.” In the alternative, he asked

that the panel “certify” questions of law to this court concerning whether a judge

convicted of a felony could receive a punishment other than disbarment.

{¶9} Despite McAuliffe’s refusal to offer evidence of mitigation, the

panel found that mitigating factors did exist. See Section 10 of the Rules and

Regulations Governing Procedure on Complaints and Hearings Before the Board

of Commissioners on Grievances and Discipline (“BCGD Proc.Reg.”). The panel

cited McAuliffe’s lack of a record of previous discipline, the fact that he made

restitution to his victim, and his cooperation in the disciplinary proceedings.

BCGD Proc.Reg. 10(B)(2)(a), (c), and (d).

{¶10} However, the panel also noted that McAuliffe had acted with a

dishonest and selfish motive, had committed multiple offenses, has refused to

acknowledge the wrongfulness of his conduct, and had made restitution only

when ordered to do so. See BCGD Proc.Reg. 10(B)(1)(b), (d), and (g). Finally,

the panel noted that McAuliffe was a judge when he committed his crimes and

thus brought disrepute to the judicial system and breached the public trust. See

Canons 2 and 4 of the Code of Judicial Conduct.

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{¶11} The panel found that McAuliffe had violated DR 1-102(A)(3)

(prohibiting illegal conduct involving moral turpitude), 1-102(A)(4) (prohibiting

conduct involving dishonesty, fraud, deceit, or misrepresentation), 1-102(A)(5)

(prohibiting conduct prejudicial to the administration of justice), and 1-102(A)(6)

(prohibiting conduct that adversely reflects on a lawyer’s fitness to practice law)

and two provisions of the Code of Judicial Conduct: Canon 2 (a judge shall

comply with the law at all times) and Canon 4 (a judge shall avoid impropriety).

The panel recommended that McAuliffe be disbarred, and the board adopted the

panel’s findings of fact, conclusions of law, and recommendation.

{¶12} McAuliffe has filed objections to the board’s report and

recommendations. His first objection challenges the panel’s decision not to stay

the disciplinary proceedings pending the disposition of his Section 2255 motion.

His second challenges the panel’s denial of his request to “certify” questions of

law to this court. His third challenges the recommendation of disbarment.

McAuliffe’s First Objection

{¶13} In his first objection, McAuliffe contends that the board erred by

denying his request that the disciplinary proceeding be stayed until the conclusion

of his Section 2255 proceeding collaterally attacking his conviction.

{¶14} Gov.Bar R. V(5)(C) provides: “Any disciplinary proceeding

instituted against a justice, judge, or an attorney based on a conviction of an

offense * * * shall not be brought to hearing until all appeals from the conviction

* * * are concluded.” (Emphasis added.)

{¶15} In Bar Assn. of Greater Cleveland v. Steele (1981), 65 Ohio St.2d

1, 19 O.O.3d 120, 417 N.E.2d 104, we applied the virtually identical language of

former Gov.R. V(8)(c).1 The respondent in Steele was convicted of first-degree

1. “Any disciplinary proceeding instituted against an attorney based upon a conviction

of an offense shall not be brought to hearing until all appeals from the conviction are concluded.”

Former Gov.R. V(8)(c), quoted in Steele, 65 Ohio St.2d at 2, 19 O.O.3d 120, 417 N.E.2d 104.

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murder. After the respondent exhausted his appeals, the board held a hearing in

his case and recommended his disbarment. The respondent argued that the

disciplinary proceeding should have been deferred until final determination of his

then pending federal habeas corpus petition.

{¶16} We rejected this argument as inconsistent with the language of the

applicable rule: “The board complied with the foregoing rule by staying the

instant proceeding until respondent’s appeals were exhausted. A proceeding in

habeas corpus is not an appeal from a criminal conviction; rather, it is a distinct

collateral attack upon the petitioner’s continued confinement.” Id., 65 Ohio St.2d

at 2, 19 O.O.3d 120, 417 N.E.2d 104.

{¶17} McAuliffe’s proceeding pursuant to Section 2255, although not a

habeas corpus action, is still a collateral attack on his conviction. See, e.g.,

United States v. Addonizio (1979), 442 U.S. 178, 184, 99 S.Ct. 2235, 60 L.Ed.2d

805; Danforth v. Minnesota (2008), __ U.S. __, 128 S.Ct. 1029, 1041, 169

L.Ed.2d 859, fn.16. Hence, like the habeas proceeding in Steele, the Section 2255

proceeding is not an appeal within the meaning of Gov.Bar R. V(5)(C). Here, as

in Steele, “[t]he board complied with the * * * rule by staying the instant

proceeding until respondent’s appeals were exhausted.” Steele, 65 Ohio St.2d at

2, 19 O.O.3d 120, 417 N.E.2d 104. Under the rule, the board had no obligation to

delay McAuliffe’s hearing yet further, pending the conclusion of the Section 2255

proceeding.

McAuliffe’s Second Objection

{¶18} McAuliffe’s second objection is that the panel erred by denying his

request that it “certify” questions of law to this court. Essentially, McAuliffe

sought to raise the issue whether, in light of our decision in Disciplinary Counsel

v. Gallagher (1998), 82 Ohio St.3d 51, 693 N.E.2d 1078, a judge who has been

convicted of a felony involving moral turpitude may receive any punishment

other than disbarment.

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{¶19} Curiously, McAuliffe contends that Gallagher requires disbarment

in such circumstances. His complaint appears to be that because Gallagher

clearly requires his disbarment, there was no point in his presenting mitigating

evidence to the panel.

{¶20} Unfortunately, McAuliffe fails to take the next step and explain

how this set of premises leads to the conclusion he asks us to reach: that the board

should have suspended its proceedings in order to seek a ruling from this court as

to whether the panel could recommend an indefinite suspension despite

Gallagher. If, as McAuliffe contends, Gallagher clearly requires his disbarment,

there was surely no reason for the board to “certify” any questions about it to us,

even assuming that the Disciplinary Rules authorize such a procedure.

{¶21} In any event, McAuliffe cites no authority for the proposition that a

panel may (let alone must) request an advisory opinion from this court during a

disciplinary proceeding. The way to raise an issue of law in a disciplinary

proceeding is not to “certify” it to this court in midproceeding, but simply to raise

it – first to the panel, then to the board, and finally to us. Thus, the panel

committed no error by denying McAuliffe’s request, and we overrule his second

objection.

Disciplinary Violations

{¶22} Based on the record, we find that McAuliffe violated DR 1-

102(A)(3), 1-102(A)(4), 1-102(A)(5), and 1-102(A)(6) and Canons 2 and 4 of the

Code of Judicial Conduct.

{¶23} Although McAuliffe continues to deny having committed the

crimes the jury found him guilty of, “a disciplinary proceeding is not an

appropriate forum in which to collaterally attack a criminal conviction.” Bar

Assn. of Greater Cleveland v. Chvosta (1980), 62 Ohio St.2d 429, 430, 16 O.O.3d

452, 406 N.E.2d 524. The record of this case contains judgment entries reflecting

McAuliffe’s federal criminal convictions, and McAuliffe has stipulated both to

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the fact of his convictions and to the authenticity of the judgment entries. The

judgment entries of conviction are conclusive evidence that McAuliffe committed

the federal crimes in question. Disciplinary Counsel v. Woods (1986), 28 Ohio

St.3d 245, 247, 28 OBR 325, 503 N.E.2d 746.

{¶24} “[P]roof 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. Burkhart (1996), 75

Ohio St.3d 188, 191, 661 N.E.2d 1062.

{¶25} The crimes McAuliffe was convicted of involved arson, fraud, and

conspiracy. Evidence at McAuliffe’s federal trial showed that McAuliffe

conspired with a business partner to burn down McAuliffe’s house so that

McAuliffe could collect the insurance proceeds. McAuliffe tried twice to have

the house set on fire and succeeded on the second try. He then signed and

submitted to the insurance company claim forms that contained false statements.

On the claim forms, McAuliffe stated that the house was not destroyed “ ‘because

of any act or design on [his] part’ ”; that “ ‘[n]othing ha[d] been done to conceal

or misrepresent any material facts concerning this claim, nor to deceive the

company’ ”; and that he did not know the cause and origin of the fire. McAuliffe

and the company ultimately settled his claim for $235,000, which McAuliffe

spent. Pursuant to the settlement, McAuliffe signed and submitted another form

falsely stating that he did not know the origin of the fire. McAuliffe, 490 F.3d at

530, 537-538.

{¶26} On these facts, we agree that McAuliffe’s crimes involved moral

turpitude. His greed and mendacity manifest the “lack of social conscience and

depravity beyond any established criminal intent,” Burkhart, 75 Ohio St.3d at

191, 661 N.E.2d 1062, that establishes moral turpitude.

Sanction

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{¶27} Finally, we consider the appropriate sanction for the disciplinary

violations in this case. McAuliffe objects to the board’s recommendation of

disbarment and requests that we impose an indefinite suspension instead.

However, he presents no explanation as to why he deserves an indefinite

suspension.

{¶28} We have considered the mitigating factors identified by the board.

However, given our finding that McAuliffe’s conduct involved moral turpitude,

we find our words in Gallagher apposite here:

{¶29} “Mitigating factors have little relevance * * * when judges engage

in illegal conduct involving moral turpitude. * * * When a judge’s felonious

conduct brings disrepute to the judicial system, the institution is irreparably

harmed. * * * By this sanction, we aim to protect both the public and the integrity

of the judicial system itself. Mitigating factors relevant to this individual attorney

pale when he is viewed in his institutional role as a judge. We, therefore, find that

respondent deserves the full measure of our disciplinary authority.” Gallagher,

82 Ohio St.3d at 53, 693 N.E.2d 1078.

{¶30} We adopt the findings and conclusions of the board. Respondent is

hereby permanently disbarred from the practice of law in Ohio. Costs are taxed to

respondent.

Judgment accordingly.

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

O’DONNELL, LANZINGER, and CUPP, JJ., concur.

__________________

Jonathan E. Coughlan, Disciplinary Counsel, and Lori J. Brown, First

Assistant Disciplinary Counsel, for relator.

David J. Graeff, for respondent.

______________________

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