Opinion

Disciplinary Counsel v. Scott (Slip Opinion)

  • 2019 Ohio 5194
Court
Ohio Supreme Court
Filed
Dec 18, 2019
Status
Published
On the bench
Per Curiam
Cited by
0 cases
Authority
More cited than 9.8%

The opinion

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

Disciplinary Counsel v. Scott, Slip Opinion No. 2019-Ohio-5194.]

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. 2019-OHIO-5194

DISCIPLINARY COUNSEL v. SCOTT.

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

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

2019-Ohio-5194.]

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

Conditionally stayed one-year suspension.

(No. 2018-1435—Submitted September 11, 2019—Decided December 18, 2019.)

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

Court, No. 2018-021.

__________________

Per Curiam.

{¶ 1} Respondent, Terrence Kensley Scott, of Columbus, Ohio, Attorney

Registration No. 0082019, was admitted to the practice of law in Ohio in 2007. In

an April 30, 2018 complaint, relator, disciplinary counsel, alleged that Scott

engaged in dishonesty, fraud, deceit, or misrepresentation as well as illegal acts that

adversely reflect on his honesty and trustworthiness. Specifically, relator alleged

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that Scott affixed preprinted Universal Product Code (“UPC”) labels for low-cost

items onto more expensive merchandise at a Walmart store and scanned the

fraudulent labels to purchase items for less than their actual price.

{¶ 2} The parties entered into stipulations of fact, misconduct, and

aggravating and mitigating factors. After a hearing before a panel of the Board of

Professional Conduct, the board issued a report recommending that Scott be

suspended from the practice of law for six months, all stayed on the condition that

he commit no further misconduct. We accept the board’s findings of misconduct,

but we suspend Scott from the practice of law for one year, fully stayed on the

condition that he commit no further misconduct.

Misconduct

{¶ 3} The parties stipulate that on December 23, 2017, Scott stole multiple

items from a Walmart store in Whitehall, Ohio. Before entering the store, he

duplicated the UPC labels for low-cost items found in his home. He took those

duplicate labels to Walmart and affixed them to more expensive items. Scott then

scanned the newly affixed UPC labels at the self-checkout in two transactions and

paid a total of $27.35 for items that had an actual value of $367.21.

{¶ 4} A Walmart asset-protection associate noticed that the items Scott had

scanned rang up incorrectly and notified a police officer who was working special

duty at the store. The officer and the associate observed Scott scan multiple items,

including electronics and rugs, that rang up as cheaper food items. After

completing his transactions, Scott attempted to exit the store. The Walmart

associate stopped him in the store vestibule, recovered the merchandise, and

informed Scott that there was a police officer waiting outside. The officer observed

Scott leave the store and identified himself as a police officer. Scott turned away

from the officer, who then fired his taser, striking Scott in the back. Scott fell and

hit his head on the concrete. Officers placed him in handcuffs and, upon searching

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January Term, 2019

him, found more than 100 additional UPC labels. Scott was transported to a local

hospital, where he received several stitches before being transported to jail.

{¶ 5} Scott was charged with misdemeanor counts of theft by deception,

possession of criminal tools, and obstructing official business. On February 6,

2018, he pleaded guilty to a third-degree-misdemeanor count of criminal mischief.

He received a suspended ten-day jail sentence and was ordered to pay a fine of

$185. Scott paid the fine, and the case was closed.

{¶ 6} The parties stipulated and the board found that Scott’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) and 8.4(c)

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

or misrepresentation). We adopt these findings of misconduct.

Sanction

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

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.

{¶ 8} There is just one aggravating factor present—Scott’s dishonest and

selfish motive. See Gov.Bar R. V(13)(B)(2). As for mitigating factors, the parties

stipulated and the board found that Scott has no prior disciplinary record, had self-

reported his misconduct, had exhibited a cooperative attitude toward the

disciplinary proceedings, and had had other sanctions imposed for his misconduct.

See Gov.Bar R. V(13)(C)(1), (4), and (6). They also acknowledged that Scott had

submitted five letters and the testimony of two witnesses with knowledge of his

misconduct—all attesting to his good character and reputation. See Gov.Bar R.

V(13)(C)(5). Indeed, Judge Kim Browne testified that after she offered Scott a job

as her judicial staff attorney, Scott disclosed his offense and gave her the

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opportunity to rescind the offer. Finding Scott to be forthright and remorseful for

his conduct, however, the judge hired him.

{¶ 9} The board also noted that Scott had made no attempt to minimize or

rationalize his behavior, voluntarily attended several psychotherapy sessions

shortly after he committed the theft and later had submitted to an assessment

conducted by the Ohio Lawyers Assistance Program—neither of which resulted in

findings of any substance-use or mental-health disorders.

{¶ 10} Although relator recommended that Scott be suspended from the

practice of law for one year, fully stayed on the condition that he engage in no

further misconduct, the board recommends that we impose a fully stayed six-month

suspension. In reaching that recommendation, the board considered the sanctions

we imposed for similar misconduct in three cases: Cincinnati Bar Assn. v. Moore,

143 Ohio St.3d 252, 2015-Ohio-2488, 36 N.E.3d 171; Disciplinary Counsel v.

Grigsby, 128 Ohio St.3d 413, 2011-Ohio-1446, 945 N.E.2d 512; and Disciplinary

Counsel v. Grubb, 142 Ohio St.3d 521, 2015-Ohio-1349, 33 N.E.3d 40.

{¶ 11} In Moore, we suspended an attorney from the practice of law for two

years, with the second year stayed on conditions, for engaging in a UPC label-

switching scheme like Scott’s. But prior to his arrest, Moore had used the same

subterfuge to steal expensive bottles of wine from the same store on five occasions

and had also attempted to walk out of a store without paying for 12 bottles of wine

more than ten years earlier. He also had failed to cooperate in the ensuing

disciplinary investigation and knowingly made false statements of material fact to

the relator. Thus, the board found that Scott’s conduct was not as egregious as

Moore’s.

{¶ 12} In Grigsby, we found that the attorney violated Prof.Cond.R. 8.4(b),

8.4(c), and 8.4(h) (prohibiting a lawyer from engaging in conduct that adversely

reflects on the lawyer’s fitness to practice law), based on her misdemeanor

conviction for using an employer-issued credit card for personal expenses over a

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January Term, 2019

period of more than two years. Two aggravating factors were present: a dishonest

or selfish motive and a pattern of misconduct. But Grigsby had made prompt

restitution to her employer and, like Scott, had no prior discipline, had self-reported

her misconduct, and had fully cooperated in the disciplinary process. We

suspended her from the practice of law for 18 months, all stayed on conditions.

{¶ 13} And in Grubb, we disciplined an attorney who had been convicted

of a single misdemeanor count that adversely reflected on her fitness to practice

law—namely, complicity to commit workers’ compensation fraud for providing

money to a client who was receiving temporary-total-disability benefits. Mitigating

factors included the absence of prior discipline, payment of restitution, evidence of

Grubb’s good character and reputation, and the imposition of other sanctions. We

found that Grubb’s misconduct was not as serious as Grigsby’s because Grubb did

not violate Prof.Cond.R. 8.4(c) and no aggravating factors were present.

Consequently, we imposed a stayed six-month suspension for Grubb’s misconduct.

{¶ 14} Scott’s misconduct is more serious than Grubb’s because Scott

engaged in dishonest conduct in violation of Prof.Cond.R. 8.4(c), but his single

charged instance of misconduct is not as egregious as Grigsby’s misconduct, which

occurred over a period of more than two years. Scott also presented mitigating

evidence of good character and reputation that was lacking in Grigsby.

{¶ 15} Despite finding that this case “falls squarely between Grigsby and

Grubb,” the board recommends that we impose the same stayed six-month

suspension that we imposed in Grubb.

{¶ 16} We agree that the facts in this case fall squarely between Grigsby

and Grubb, and we find that it is analogous to another case cited by the board—

Disciplinary Counsel v. Nass, 65 Ohio St.3d 160, 602 N.E.2d 610 (1992). Nass

had been convicted of petty theft after she was caught placing over $400 of

department-store merchandise into a bag containing other purchases. Nass received

a suspended 180-day jail sentence and was ordered to pay a fine of $420 and to

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perform 100 hours of community service. We found that Nass’s conduct violated

former disciplinary rules equivalent to Prof.Cond.R. 8.4(b) and (c). We suspended

her from the practice of law for one year, fully stayed on the condition that she

engage in no other conduct involving moral turpitude, recognizing that she had paid

her fine and completed her sentence, had been a valued employee but lost her job

in the wake of her conviction, had no significant criminal record, and had

independently sought a psychological evaluation and treatment for her behavior.

{¶ 17} Having considered Scott’s misconduct, the aggravating and

mitigating factors present in this case, and the sanctions we imposed in Grigsby,

Grubb, and Nass, we believe that a conditionally stayed one-year suspension is the

appropriate sanction in this case.

{¶ 18} Accordingly, Terrence Kensley Scott is suspended from the practice

of law in Ohio for one year, fully stayed on the condition that he engage in no

further misconduct. If Scott violates the condition of the stay, the stay will be lifted

and he will serve the entire one-year suspension. Costs are taxed to Scott.

Judgment accordingly.

O’CONNOR, C.J., and KENNEDY, FRENCH, FISCHER, DEWINE, DONNELLY,

and STEWART, JJ., concur.

_________________

Joseph M. Caligiuri, Disciplinary Counsel, and Lia J. Meehan, Assistant

Disciplinary Counsel, for relator.

Terrence Kensley Scott, pro se.

_________________

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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