Disciplinary Counsel v. Ames

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as

Disciplinary Counsel v. Ames, Slip Opinion No. 2016-Ohio-7830.]

NOTICE

This slip opinion is subject to formal revision before it is published in

an advance sheet of the Ohio Official Reports. Readers are requested

to promptly notify the Reporter of Decisions, Supreme Court of Ohio,

65 South Front Street, Columbus, Ohio 43215, of any typographical or

other formal errors in the opinion, in order that corrections may be

made before the opinion is published.

SLIP OPINION NO. 2016-OHIO-7830

DISCIPLINARY COUNSEL v. AMES.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as Disciplinary Counsel v. Ames, Slip Opinion No.

2016-Ohio-7830.]

Attorneys—Misconduct—Violations of the Rules of Professional Conduct—Two-

year suspension with final six months stayed on conditions.

(No. 2016-0857—Submitted July 13, 2016—Decided November 22, 2016.)

ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme

Court, No. 2015-079.

_______________________

Per Curiam.

{¶ 1} Respondent, Arthur Arould Ames of Dayton, Ohio, Attorney

Registration No. 0018227, was admitted to the practice of law in Ohio in 1969.

On December 10, 2015, we suspended his license on an interim basis after

receiving notice that he had been convicted of theft by deception, a fifth-degree

felony, for misappropriating funds from his late brother’s estate. In re Ames, 144

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Ohio St.3d 1280, 2015-Ohio-5105, 45 N.E.3d 1024. Later that month, relator,

disciplinary counsel, charged Ames with professional misconduct based on the

facts that led to his felony conviction.

{¶ 2} The Board of Professional Conduct considered the cause on the

parties’ consent-to-discipline agreement. See Gov.Bar R. V(16). In the

agreement, Ames admitted that as executor of his brother’s estate, he

misappropriated $8,140.39 from his two nieces’ shares of the estate proceeds.

Ames also admitted that in a filing in probate court, he falsely represented that he

had his nieces’ consent to distribute additional funds to himself. Based on that

conduct, he pled guilty to theft by deception, and he agreed to waive his

executor’s fee of $2,500 and make restitution in the amount of $5,640.39. The

court sentenced him to a three-year period of community control and also ordered,

among other things, that he pay $5,640.39 in restitution to the estate at the rate of

$160 a month.

{¶ 3} The parties stipulated that Ames’s conduct violated Prof.Cond.R.

8.4(b) (prohibiting a lawyer from committing an illegal act that reflects adversely

on the lawyer’s honesty or trustworthiness), 8.4(c) (prohibiting a lawyer from

engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation),

and 8.4(d) (prohibiting a lawyer from engaging in conduct that is prejudicial to

the administration of justice).

{¶ 4} The parties also stipulated that in mitigation, Ames has no prior

disciplinary record, he made full and free disclosure to the board and had a

cooperative attitude toward the disciplinary proceedings, other penalties have

been imposed for the same misconduct, and he has acknowledged his wrongdoing

and expressed sincere remorse for the harm caused to his nieces and to the

administration of justice. See Gov.Bar R. V(13)(C)(1), (4), and (6). As for

aggravating factors, the parties stipulated that Ames had a dishonest or selfish

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motive and had committed multiple offenses. See Gov.Bar R. V(13)(B)(2) and

(4).

{¶ 5} As a sanction, the parties recommended that Ames serve a two-year

suspension with the final six months stayed and that he be given credit for the

period of his interim felony suspension. To support their recommendation, the

parties primarily rely on Disciplinary Counsel v. Kraemer, 126 Ohio St.3d 163,

2010-Ohio-3300, 931 N.E.2d 571, a case in which we suspended an attorney for

two years, with one year conditionally stayed, for misappropriating $7,157.10 in

client fees belonging to his law firm, which led to a fifth-degree-felony theft

conviction. In mitigation, the attorney in Kraemer had no disciplinary record,

paid restitution to his former employer, cooperated in the disciplinary process,

demonstrated good character and reputation, incurred other penalties or sanctions,

and demonstrated the existence of a mental disorder that contributed to the

misconduct. The factors cited in aggravation were the attorney’s dishonest or

selfish motive and his pattern of misconduct involving multiple offenses. Citing

the attorney’s acceptance of responsibility, his expression of remorse, the short

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

credited one year of the time served under his interim felony suspension against

the two-year suspension. Id. at ¶ 14.

{¶ 6} The board found that the parties’ consent-to-discipline agreement

conforms to the requirements of Gov.Bar R. V(16), and it recommends that we

adopt the agreement in its entirety, noting that Ames’s misconduct was his only

ethical misstep in more than 45 years of practice.

{¶ 7} We agree with the board that Ames engaged in the charged

misconduct and that the parties’ recommended sanction is appropriate in this case.

The circumstances here are analogous to those in Kraemer in terms of the amount

misappropriated, the rule violations, and the balance of mitigating and

aggravating factors. Therefore, a similar sanction is warranted. See also

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Disciplinary Counsel v. Mahin, 146 Ohio St.3d 312, 2016-Ohio-3336, 55 N.E.3d

1108 (suspending an attorney for two years, with the second year stayed on

conditions, and granting credit for time served under an interim felony

suspension, for misconduct that included misappropriating $15,261.97 from the

attorney’s former law firm).

{¶ 8} Accordingly, we accept the parties’ consent-to-discipline agreement.

Arthur Arould Ames is hereby suspended from the practice of law for two years

with the final six months stayed. Ames’s stayed suspension and his reinstatement

to the practice of law are conditioned on his compliance with the restitution order

entered in his criminal case and on his committing no further misconduct. If

Ames fails to comply with the conditions of the stay, the stay will be lifted and he

will serve the entire two-year suspension. Ames shall also receive credit for time

served under the interim felony suspension imposed on December 10, 2015.

Costs are taxed to Ames.

Judgment accordingly.

PFEIFER, LANZINGER, FRENCH, and O’NEILL, JJ., concur.

O’CONNOR, C.J., and O’DONNELL and KENNEDY, JJ., dissent and would

remand the cause to the Board of Professional Conduct, to reconsider the decision

to grant respondent credit for time served under interim felony suspension.

_________________

Scott J. Drexel, Disciplinary Counsel, for relator.

Arthur Arould Ames, pro se.

_________________

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