Disciplinary Counsel v. Doumbas

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

Disciplinary Counsel v. Doumbas, Slip Opinion No. 2017-Ohio-550.]

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. 2017-OHIO-550

DISCIPLINARY COUNSEL v. DOUMBAS.

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

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

2017-Ohio-550.]

Attorneys—Misconduct—Felony convictions—Committing an illegal act that

adversely reflects on honesty—Engaging in conduct that is prejudicial to

the administration of justice—Indefinite suspension.

(No. 2016-1149—Submitted January 11, 2017—Decided February 21, 2017.)

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

Court, No. 2014-018.

_______________________

Per Curiam.

{¶ 1} Respondent, Marc George Doumbas of Strongsville, Ohio, Attorney

Registration No. 0074028, was admitted to the practice of law in Ohio in 2001. We

suspended Doumbas’s license on an interim basis, effective January 10, 2014,

following his convictions for two felony counts of bribery arising from his

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representation of a client in a criminal proceeding. See In re Doumbas, 138 Ohio

St.3d 1225, 2014-Ohio-23, 3 N.E.3d 1207.

{¶ 2} In a March 3, 2014 complaint, relator, disciplinary counsel, charged

Doumbas with violations of Prof.Cond.R. 8.4(b) (prohibiting a lawyer from

committing an illegal act that reflects adversely on the lawyer’s honesty or

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

prejudicial to the administration of justice) related to his criminal convictions. The

parties entered into joint stipulations of fact, misconduct, and aggravating and

mitigating factors. They jointly recommended that Doumbas be indefinitely

suspended from the practice of law but disagreed as to whether he should receive

credit for the time he has served under the interim felony suspension.

{¶ 3} After hearing testimony from Doumbas and a character witness, a

panel of the Board of Professional Conduct adopted the parties’ stipulations and

recommended that he be indefinitely suspended from the practice of law, with credit

for the time he has served under the interim felony suspension. The panel also

recommended that he be required to pay his criminal fine and court costs plus the

costs of his disciplinary proceedings before he may petition this court to reinstate

his license. The board adopted the panel’s findings of fact and misconduct and its

recommended sanction.

{¶ 4} We adopt the board’s report and recommendation and indefinitely

suspend Doumbas from the practice of law in Ohio, with credit for the time he has

served under his interim felony suspension.

Misconduct

{¶ 5} Doumbas and attorney G. Timothy Marshall represented Thomas

Castro in a criminal proceeding in which Castro was charged with rape. The board

found that following Castro’s guilty plea to two counts of sexual battery, Doumbas

and Marshall discussed the need to assemble a mitigation package to support their

request for a sentence that would include no jail time for Castro. Thereafter,

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Marshall and Castro’s business attorney, Anthony Calabrese, offered substantial

payments to Castro’s two sexual-assault victims as “civil settlements,” purportedly

to show that Castro had made restitution for his criminal conduct.

{¶ 6} Doumbas, Castro, Marshall, and Calabrese were indicted in

connection with their efforts to bribe Castro’s victims to induce them to support

leniency in Castro’s sentence. The state alleged that Marshall and Calabrese

intended to bribe the victims by offering them monetary settlements that were

contingent upon their making requests that the sentencing judge not impose jail

time on Castro. Although there was no evidence that Doumbas had directly

promised, offered, or given anything of value to the witnesses, the state alleged that

he had been aware that Marshall and Calabrese had made or intended to make the

settlement proposals and he had shared Castro, Marshall, and Calabrese’s criminal

intent, and therefore, the state alleged, he was complicit in the bribery.

{¶ 7} A jury convicted Doumbas of two of the three third-degree felony

counts of bribery for which he was indicted. On December 4, 2013, he was

sentenced to concurrent one-year prison terms and up to three years of postrelease

control and ordered to pay a “$10,000 fine on each count, concurrent.”

{¶ 8} Doumbas completed his prison sentence, and no postrelease control

was ordered. At the time of his June 2, 2016 hearing in this matter, he had not paid

any portion of his fine or court cost—which at the time of his sentencing totaled

approximately $12,500. Doumbas continues to maintain his innocence. However,

the Eighth District Court of Appeals affirmed Doumbas’s convictions, finding that

there was sufficient evidence to support the jury’s verdict and that the verdict was

not against the manifest weight of the evidence. State v. Doumbas, 8th Dist.

Cuyahoga No. 100777, 2015-Ohio-3026, appeal not accepted, 144 Ohio St.3d

1460, 2016-Ohio-172, 44 N.E.3d 288. The appellate court subsequently denied

Doumbas’s App.R. 26 motion to reopen his appeal. State v. Doumbas, 8th Dist.

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Cuyahoga No. 100777, 2016-Ohio-956, appeal not accepted, 146 Ohio St.3d 1430,

2016-Ohio-4606, 52 N.E.3d 1430.

{¶ 9} The parties stipulated and the board found that Doumbas committed

an illegal act that adversely reflects on his honesty or trustworthiness in violation

of Prof.Cond.R. 8.4(b) and that his actions were also prejudicial to the

administration of justice in violation of Prof.Cond.R. 8.4(d). No objections have

been filed, and we adopt the board’s findings of fact and misconduct.

Sanction

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

several relevant factors, including the ethical duties the lawyer violated, the

aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions

imposed in similar cases.

{¶ 11} The board understood Doumbas’s desire to demonstrate to the

sentencing judge that Castro had compensated his victims for the harm that they

had suffered from his sexual assaults. But it also concluded that any reasonable

lawyer would have recognized the inherent risk that any settlement offer made to

the victims in those circumstances could be interpreted as an attempt to influence

their statements at the perpetrator’s sentencing hearing. Although there was no

evidence that Doumbas directly promised, offered, or gave anything of value to the

victims, the jury and the court of appeals determined that there was sufficient

circumstantial evidence of his complicity in the acts of bribery. And the board

reasoned that, as Castro’s designated trial counsel, Doumbas must be held

accountable for the negotiations that he left to the discretion of Marshall and

Calabrese and the harm that they produced. The board also noted that Doumbas

has denied any criminal culpability at trial, on appeal, and in this disciplinary matter

and has indicated that he intends to collaterally attack his convictions in the federal

courts upon exhausting available state remedies. Therefore, the board adopted the

parties’ two stipulated aggravating factors—the vulnerability of and resulting harm

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to the victims and Doumbas’s refusal to acknowledge the wrongful nature of his

misconduct. See Gov.Bar R. V(13)(B)(7) and (8). The board also found that

Doumbas had offered no justification for his failure to pay his criminal fine and

court costs other than his ongoing efforts to overturn his convictions, and

consequently, it identified his failure to pay them as an additional aggravating

factor.

{¶ 12} As mitigating factors, the parties stipulated and the board found that

Doumbas has no prior discipline, he has served the period of incarceration imposed

for his criminal offense, and he has demonstrated a cooperative attitude toward the

disciplinary proceedings. See Gov.Bar R. V(13)(C)(1), (4), and (6). They also

acknowledged that Doumbas submitted positive character evidence. A friend and

client of Doumbas, Steven Boukis, testified that Doumbas had handled

approximately 25 cases for him and his family and that he had referred

approximately 40 other people to him for legal representation—all of whom

informed him of their satisfaction with Doumbas’s representation. While he

understood the seriousness of Doumbas’s criminal convictions and the disciplinary

charges, Boukis testified that he and his friends and acquaintances would not

hesitate to employ him as their attorney if his license is reinstated.

{¶ 13} Doumbas also submitted six character letters—including two from

judges of the Cuyahoga County Court of Common Pleas—attesting to his

dedication and skill as an advocate and to his reputation for honesty and integrity.

See Gov.Bar R. V(13)(C)(5). And despite Doumbas’s insistence that he was

wrongly convicted, the board found that he was “contrite and remorseful in his

testimony,” that he was sincere in describing the serious effects his convictions

have had on him personally and professionally, and that he is unlikely to engage in

similar misconduct in the future.

{¶ 14} The parties jointly recommended and the board agreed that Doumbas

should be indefinitely suspended from the practice of law for his misconduct. In

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considering that recommendation, the board compared Doumbas’s conduct to that

of the other attorneys—Martinez and Calabrese—disciplined for their roles in the

Castro bribery matter.1

{¶ 15} Martinez represented one of Castro’s victims in settlement

negotiations with Calabrese. For his role in the bribery scheme, he pleaded no

contest to obstructing official business, a second-degree misdemeanor, and was

sentenced to ten days in jail, all suspended; three months of probation; 25 hours of

community service; and a $750 fine. State v. Martinez, Cuyahoga C.P. No. CR-13-

580051-A. We suspended his license to practice law in Ohio for six months, all

stayed on the condition that he engage in no further misconduct. Disciplinary

Counsel v. Martinez, 146 Ohio St.3d 212, 2016-Ohio-2709, 54 N.E.3d 1210.

{¶ 16} In contrast, Calabrese pleaded guilty to 27 felony counts—only five

of the counts (one count of engaging in corrupt activity and four counts of bribery)

were related to his actions with regard to Castro’s victims—and was sentenced to

nine years in prison and ordered to pay hundreds of thousands of dollars in

restitution, fines, and forfeitures. Disciplinary Counsel v. Calabrese, 143 Ohio

St.3d 229, 2015-Ohio-2073, 36 N.E.3d 151, citing United States v. Calabrese,

N.D.Ohio case No. 1:11CR437; State v. Calabrese, Cuyahoga C.P. No. CR-13-

576241; and State v. Calabrese, Cuyahoga C.P. No. CR-13-571014. Based on

those convictions, we disbarred him from the practice of law in Ohio. Id. at ¶ 26.

{¶ 17} The board found that Doumbas’s misconduct was more severe than

Martinez’s but less egregious than Calabrese’s and agreed that an indefinite

suspension is the appropriate sanction. The board recommended that we credit

Doumbas for the time he has served under his January 10, 2014 interim felony

1

Marshall was convicted of orchestrating a felonious bribe of one of Castro’s victims, and his

conviction was affirmed on appeal. State v. Marshall, 8th Dist. Cuyahoga No. 100736, 2015-Ohio-

2511. He was suspended from the practice of law on an interim basis pursuant to former Gov.Bar

R. V(5)(A)(4) (now Gov.Bar R. V(18)) in January 2014. In re Marshall, 138 Ohio St.3d 1227,

2014-Ohio-24, 3 N.E.3d 1209. He died just before Doumbas’s June 2016 disciplinary hearing.

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suspension because his misconduct was a one-time violation, he presented

significant mitigating evidence, he did not profit from his misconduct, he did not

cause grave harm to others, and he appears to have been changed for the better by

the criminal and disciplinary processes.

{¶ 18} In support of the recommendation to credit Doumbas for the time he

has served under the interim suspension, the board cited several cases in which this

court granted credit for time served under an interim suspension. See, e.g.,

Disciplinary Counsel v. Gittinger, 125 Ohio St.3d 467, 2010-Ohio-1830, 929

N.E.2d 410, ¶ 47 (attorney’s misconduct was a one-time violation, there was

significant mitigating evidence, attorney did not receive any tangible personal gain

or profit from the misconduct, and the misconduct did not result in grave harm to

others); Disciplinary Counsel v. Blaszak, 104 Ohio St.3d 330, 2004-Ohio-6593,

819 N.E.2d 689, ¶ 12, 24-25 (attorney was contrite, had completed his sentence,

had cooperated, had already been suspended for more than two years under the

interim suspension, had an exemplary record of professional and community

service, and presented approximately 90 letters confirming his good character and

integrity and expressing gratitude and appreciation for his professional assistance);

Disciplinary Counsel v. Kraemer, 126 Ohio St.3d 163, 2010-Ohio-3300, 931

N.E.2d 571, ¶ 7, 14 (granting partial credit for time served when attorney accepted

responsibility and expressed sincere remorse for his conduct, the offenses occurred

over a short period of time [four months], attorney had misappropriated a

comparatively small amount of money from his firm, and the relator did not object

to giving credit). The board also recommended that Doumbas be required to fully

pay his criminal fine and court costs and the costs of his disciplinary proceedings

before he may petition for reinstatement of his license to practice law.

{¶ 19} We agree that an indefinite suspension is the appropriate sanction

for Doumbas’s misconduct and that granting credit for the time he has served is

appropriate on the facts of this case.

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{¶ 20} Accordingly, Marc George Doumbas is indefinitely suspended from

the practice of law in Ohio, with credit for the time he has served under his interim

felony suspension. At the time he files a petition for reinstatement pursuant to

Gov.Bar R. V(25), he must submit proof that his criminal fine and court costs and

the costs of his disciplinary proceedings have been paid in full. Costs are taxed to

Doumbas.

Judgment accordingly.

FRENCH, O’NEILL, FISCHER, and DEWINE, JJ., concur.

O’CONNOR, C.J., and O’DONNELL and KENNEDY, JJ., dissent and would not

grant respondent credit for time served under interim felony suspension.

_________________

Scott J. Drexel, Disciplinary Counsel, and Joseph M. Caligiuri, Chief

Assistant Disciplinary Counsel, for relator.

Marc George Doumbas, pro se.

_________________

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