Mahoning County Bar Association v. Atway.

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

Mahoning Cty. Bar Assn. v. Atway, Slip Opinion No. 2018-Ohio-10.]

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. 2018-OHIO-10

MAHONING COUNTY BAR ASSOCIATION v. ATWAY.

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

may be cited as Mahoning Cty. Bar Assn. v. Atway, Slip Opinion No.

2018-Ohio-10.]

Attorneys—Misconduct—Felony conviction for conspiring to prevent another

person from freely exercising a legal right—Representing a client using

means that have no other purpose than to embarrass or harass a third

person—Committing illegal act reflecting adversely on lawyer’s honesty or

trustworthiness—Engaging in conduct prejudicial to administration of

justice—Two-year suspension with no credit for time served.

(No. 2017-1082—Submitted September 13, 2017—Decided January 3, 2018.)

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

Court, No. 2016-064.

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SUPREME COURT OF OHIO

Per Curiam.

{¶ 1} Respondent, Neal Ghaleb Atway, of Youngstown, Ohio, Attorney

Registration No. 0059252, was admitted to the practice of law in Ohio in 1992. In

April 2016, we suspended his license on an interim basis after receiving notice that

he had been convicted of a felony. In re Atway, 146 Ohio St.3d 1216, 2016-Ohio-

1452, 51 N.E.3d 648. In December 2016, relator, Mahoning County Bar

Association, charged him with violating several professional-conduct rules as a

result of his conviction. After a hearing, the Board of Professional Conduct found

that Atway engaged in most of the charged misconduct and recommended that we

suspend him for two years, with credit for time served under the interim felony

suspension. Neither party has objected to the board’s recommendation.

{¶ 2} Upon our review of the record, we adopt the board’s findings of

misconduct and agree that a two-year suspension is appropriate in this case.

However, we decline to grant credit for time served under the interim felony

suspension.

Misconduct

{¶ 3} This matter involves Atway’s 2012 representation of Charles Muth.

In early 2012, state authorities investigated Muth for allegedly asking an associate

to fire gunshots into what Muth believed was the home of Mohd Rawhneh. During

the state’s investigation of the shooting, police discovered a large marijuana-

growing operation in Muth’s home, which resulted in federal authorities

commencing a separate investigation of him. Atway agreed to represent Muth in

the federal matter, and Atway’s law partner, Scott Cochran, agreed to represent

Muth in the state court proceeding.1

{¶ 4} By June 2012, Atway had negotiated a plea agreement in the federal

matter. At his disciplinary hearing, Atway testified that although he had negotiated

1

Relator separately charged Cochran with professional misconduct relating to his representation

of Muth. See __ Ohio St.3d __, 2018-Ohio-4, __ N.E.3d __.

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January Term, 2018

Muth’s mandatory five-year prison term down to a six-month sentence, Muth

requested that Atway find a way for him to avoid any time in prison. Atway then

approached the government’s attorney, who indicated that Muth could potentially

avoid prison by proving that his life was threatened for cooperating with authorities

or by providing incriminating evidence about either public corruption or a lawyer.

At the time, Atway believed that the government’s attorney wanted Muth to

cooperate against a local attorney who the government suspected was involved in

Muth’s marijuana operation. Atway relayed this information to his client.

{¶ 5} According to Atway, Muth had also asked him to approach Rawhneh

about entering into a monetary settlement with Muth, which Muth hoped would

prevent Rawhneh from testifying against him at his sentencing hearings. Atway

testified that he had repeatedly told Muth that they could not prevent Rawhneh from

appearing at Muth’s sentencing hearings but Muth had nonetheless requested that

Atway attempt a settlement.

{¶ 6} Unbeknownst to Atway, Muth had also contacted the FBI and alleged

that Atway and Rawhneh were attempting to extort money from him. As a result,

the FBI began recording communications between Atway and Muth and,

separately, Atway and Rawhneh. According to Atway, the FBI recorded dozens of

his communications with both his client and Rawhneh.

{¶ 7} In November 2012, Atway learned that he was under FBI

investigation, and in 2014, the federal government charged him with violating the

Hobbs Act, obstruction of justice, making a false statement to law enforcement, and

two other offenses. Atway pled not guilty to all charges. After a five-week trial in

February and March 2015, the judge declared a mistrial due to juror misconduct.

The judge later acquitted Atway on two counts, and the government indicated its

intent to retry him on the remaining charges. By October 2015, however, Atway

and the government reached an agreement: Atway would plead guilty to a new

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SUPREME COURT OF OHIO

charge of violating 18 U.S.C. 241, a class C felony, and the government would

dismiss all charges in the original indictment.

{¶ 8} Under 18 U.S.C. 241, persons are prohibited from conspiring with

others to injure, oppress, threaten, or intimidate any person in the free exercise and

enjoyment of a legal right. Atway admitted that he had violated the statute by

entering into a conspiracy to deprive Muth of his right to effective assistance of

counsel. Specifically, Atway admitted that he had lied to Muth about his

interactions and communications with Rawhneh. Atway also acknowledged that

he made vulgar and disparaging comments in his communications with Rawhneh

while discussing the potential settlement. At his January 2016 sentencing, the judge

fined Atway $2,000 and placed him on probation for three years, with four months

under house arrest. Atway paid the fine and served the house arrest, and in March

2017, the court terminated Atway’s probation early for good behavior.

{¶ 9} Based on Atway’s federal conviction, the parties stipulated and the

board found that he had violated Prof.Cond.R. 4.4 (prohibiting a lawyer, while

representing a client, from using means that have no substantial purpose other than

to embarrass, harass, delay, or burden a third person), 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).

{¶ 10} We accept the stipulated findings of misconduct.

Sanction

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

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

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

imposed in similar cases.

Aggravating and mitigating factors

{¶ 12} The board did not find any aggravating factors in this case.

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January Term, 2018

{¶ 13} In mitigation, the board found that Atway has no prior disciplinary

record, he lacked a dishonest or selfish motive, he made full and free disclosures to

relator and the board, and criminal sanctions have been imposed for his misconduct.

See Gov.Bar R. V(13)(C)(1), (2), (4), and (6). The board also determined that

Atway submitted evidence demonstrating good character and an excellent

reputation in the Youngstown legal community, noting that two Assistant United

States Attorneys testified on Atway’s behalf in his criminal trial, even though their

associates were prosecuting the case against Atway. See Gov.Bar R. V(13)(C)(5).

In addition, the board noted that Atway’s conduct did not harm Muth, who received

only a one-month reduction in his prison sentence for cooperating with authorities

against Atway. The parties also stipulated—and the board agreed—that restitution

should not be an issue in this proceeding, because Muth has filed a separate civil

lawsuit against Atway.

Applicable precedent

{¶ 14} To support its recommended sanction, the board reviewed a number

of cases involving attorneys whose misconduct resulted in felony convictions. For

example, the board cited Disciplinary Counsel v. Cohen, 142 Ohio St.3d 471, 2015-

Ohio-2020, 32 N.E.3d 455, in which an attorney representing a criminal defendant

paid money to a prosecution witness and talked to the witness about traveling out

of state. The attorney later pled guilty to attempted tampering with evidence and

attempted obstruction of justice, and we indefinitely suspended him, without credit

for time served under his interim felony suspension.

{¶ 15} The board also cited Disciplinary Counsel v. Doumbas, 149 Ohio

St.3d 628, 2017-Ohio-550, 76 N.E.3d 1185, in which an attorney was found

complicit in his associates’ efforts to bribe a client’s victims into supporting a more

lenient sentence for the client. Based on the attorney’s bribery conviction, we

indefinitely suspended him but granted credit for time served under the interim

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SUPREME COURT OF OHIO

felony suspension, which we had imposed over three years before our final

disciplinary order.

{¶ 16} On the lower end of sanctions, the board reviewed Disciplinary

Counsel v. Pappas, 141 Ohio St.3d 1, 2014-Ohio-3676, 21 N.E.3d 260, in which

an attorney made multiple false statements—including to a court, a federal grand

jury, and disciplinary authorities—in an attempt to protect a long-time friend. After

the attorney was convicted of a felony for lying to federal authorities, we suspended

him for two years, with no credit for time served under his interim felony

suspension. The board also cited Disciplinary Counsel v. Mahin, 146 Ohio St.3d

312, 2016-Ohio-3336, 55 N.E.3d 1108, in which an attorney misappropriated funds

from his former law firm and was later convicted of fifth-degree-felony theft.

Based on the parties’ consent-to-discipline agreement, we suspended him for two

years, with the second year conditionally stayed, and granted him credit for time

served under his felony suspension.

{¶ 17} The board concluded that Atway’s misconduct—which it

characterized as “essentially lying to his client”—was less egregious than the

criminal conduct in the above-cited cases. The board also described Atway’s

behavior as “a one-time, out of character mistake” by a well-respected member of

the local bar and found that his criminal conduct was the result of “highly unusual

facts.” Based on Atway’s testimony, the parties’ stipulations, and the mitigating

evidence, the board ultimately recommended a two-year suspension, with credit for

time served under Atway’s interim felony suspension.

{¶ 18} We agree with the board that this case presents an unusual set of

facts and that Atway’s conduct was less serious than the criminal conduct in some

of the cases cited above. We also agree that a two-year suspension is the

appropriate sanction in this case, especially given the presence of several mitigating

factors and the absence of any aggravating factors. However, Atway pled guilty to

a felony for entering into a conspiracy to deprive a client of his right to effective

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January Term, 2018

assistance of counsel. “Few infractions impugn the integrity of the legal profession

more than an attorney’s criminal acts interfering with the fair administration of

justice.” Cohen, 142 Ohio St.3d 471, 2015-Ohio-471, 32 N.E.3d 455, ¶ 8. Given

the nature of Atway’s conviction, we find no compelling reason to grant credit for

time served under the interim felony suspension.

Conclusion

{¶ 19} For the reasons explained above, Neal Ghaleb Atway is suspended

from the practice of law in Ohio for two years, with no credit for time served under

his interim suspension. Costs are taxed to Atway.

Judgment accordingly.

O’CONNOR, C.J., and O’DONNELL, KENNEDY, and FISCHER, JJ., concur.

FRENCH, O’NEILL, and DEWINE, JJ., dissent, and would grant credit for time

served under interim suspension.

_________________

David Comstock Jr. and J. Michael Thompson, Bar Counsel, for relator.

John B. Juhasz; and Maro & Schoenike Co. and Lynn Maro, for respondent.

_________________

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