Disciplinary Counsel v. Anthony

2013 Ohio 5502, 4 N.E.3d 1006, 138 Ohio St. 3d 129
CourtOhio Supreme Court
DecidedDecember 24, 2013
Docket2013-0226
StatusPublished
Cited by11 cases

This text of 2013 Ohio 5502 (Disciplinary Counsel v. Anthony) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Disciplinary Counsel v. Anthony, 2013 Ohio 5502, 4 N.E.3d 1006, 138 Ohio St. 3d 129 (Ohio 2013).

Opinions

[130]*130Per Curiam.

{¶ 1} Respondent, Mark Allan Anthony of Dayton, Ohio, Attorney Registration No. 0056048, was admitted to the practice of law in Ohio in 1991. In 2005, we suspended Anthony’s license for failing to register, and in 2009, we suspended him again for failing to comply with continuing-legal-education requirements. In 2011, we imposed an interim felony suspension based on his theft conviction for embezzling money from his employer, St. Francis de Sales Catholic Church, in Lebanon, Ohio. In re Anthony, 128 Ohio St.3d 1490, 2011-Ohio-2221, 946 N.E.2d 760. All of these suspensions remain in effect.

{¶ 2} Based on Anthony’s felony conviction, relator, disciplinary counsel, charged him with violations of the Code of Professional Responsibility and the Rules of Professional Conduct. A three-member panel of the Board of Commissioners on Grievances and Discipline conducted a hearing, in which the parties submitted stipulated facts and misconduct and jointly recommended a sanction of an indefinite suspension. The parties, however, could not agree on whether restitution should be a condition of Anthony’s possible reinstatement to the practice of law. The panel accepted the parties’ stipulated facts and misconduct and recommended that Anthony be indefinitely suspended and that reinstatement be conditioned on the successful completion of a treatment plan for Anthony’s gambling addiction and the establishment of a plan to pay restitution. The board adopted the panel’s findings of fact, conclusions of law, and recommended sanction, and neither party has objected to the board’s report.

{¶ 3} Upon review of the record, we accept the board’s findings of fact and misconduct and impose an indefinite suspension subject to payment of restitution as a condition of reinstatement.

Misconduct

{¶ 4} In 2004, Anthony voluntarily ceased the active practice of law and focused on his employment as the business manager at St. Francis de Sales Catholic Church. Over a period of almost four years, Anthony embezzled church funds to pay for personal expenses and to maintain a gambling addiction. Specifically, Anthony wrote at least 60 checks to himself or to cash from parish funds, withdrew cash from various church accounts, and improperly used the parish credit card more than 60 times. In February 2007, Anthony pled guilty to grand theft, and the Warren County Court of Common Pleas sentenced him to a 12-month prison term and ordered him to pay restitution to St. Francis. After Anthony had served four months in prison, the court modified his sentence to five years of community control.

{¶ 5} The record here does not clearly set forth how much money Anthony took from St. Francis. The parties stipulated, and the board found, that Anthony [131]*131“misappropriated approximately $118,000 in parish funds,” and the trial court ordered that he pay $118,891 in restitution. However, the parties also stipulated that Gallagher Bassett Services, Inc., a firm hired by the Archdiocese of Cincinnati to administer its insurance claims, calculated St. Francis’s total loss at $127,649.15. When a panel member asked about this discrepancy at the hearing, Anthony stated that he had “no idea how they came to their numbers,” and relator explained that the prosecutor used the $118,891 figure, but the archdiocese and St. Francis concluded that the total loss was more than that amount based on the Gallagher Bassett findings.

{¶ 6} We agree with the board’s conclusion that Anthony violated DR 1-102(A)(3) (prohibiting a lawyer from engaging in illegal conduct involving moral turpitude), 1-102(A)(4) (prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 1-102(A)(6) (prohibiting a lawyer from engaging in conduct that adversely reflects on the lawyer’s fitness to practice law).1

Anthony’s criminal restitution order

{¶ 7} At the time of Anthony’s thefts, the Archdiocese of Cincinnati maintained an employee-dishonesty insurance policy with Lloyd’s of London. The terms of that policy specified that the archdiocese was responsible for the first $100,000 of any employee-dishonesty claim, and the insurer was obligated for losses over that amount. The archdiocese created a self-insured retention (“SIR”) fund and required its parishes and other entities to pay a predetermined amount to cover any claimed losses under the policy. In 2007, the SIR fund of the archdiocese issued payment of $100,000 to St. Francis, and in 2008, Lloyd’s of London issued its check for $27,149.15 to St. Francis, representing the remainder of the claimed loss less a $500 deductible.

{¶ 8} In 2011, upon learning that St. Francis had been made whole, Anthony moved the trial court to modify its restitution order, arguing that Ohio law prohibited restitution to a victim in an amount in excess of the victim’s actual economic loss. The trial court agreed and terminated Anthony’s community-[132]*132control supervision. Up to that time, Anthony had paid $13,425 in restitution— $10,000 to St. Francis and $3,425 to Lloyd’s of London. Since then, Anthony has not paid any restitution.

Sanction

{¶ 9} When imposing sanctions for attorney misconduct, we consider several factors, including the ethical duties violated, the actual injury caused, the existence of any aggravating and mitigating factors listed in BCGD Proc.Reg. 10(B), and the sanctions imposed in similar cases. Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶ 16; Disciplinary Counsel v. Broeren, 115 Ohio St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21. In this case, relator, the panel, and the board have recommended an indefinite suspension; upon consideration of the relevant factors, we adopt that recommendation, but condition reinstatement on payment of the loss and impose other conditions.

1. Aggravating and mitigating factors

{¶ 10} The board determined that Anthony’s prior attorney-registration suspension was an aggravating factor, but it also considered as a mitigating factor the fact that Anthony had no prior discipline except for that suspension. We have not always been consistent in treating attorney-registration suspensions as aggravating factors. Compare Cleveland Metro. Bar Assn. v. Kelly, 132 Ohio St.3d 292, 2012-Ohio-2715, 971 N.E.2d 922, ¶ 15 (“The only mitigating factor is that, except for his current attorney-registration suspension, [respondent] does not have a prior disciplinary record”) with Disciplinary Counsel v. Lape, 130 Ohio St.3d 273, 2011-Ohio-5757, 957 N.E.2d 772, ¶ 11 (citing cases holding that an attorney-registration suspension is an aggravating factor).

{¶ 11} An attorney’s suspension for failure to comply with attorney-registration requirements is prior discipline and therefore is an aggravating factor pursuant to BCGD Proc.Reg. 10(B)(1)(a). A registration suspension may not weigh heavily against a respondent when the prior discipline consists only of a registration suspension. In this case, although respondent has also been sanctioned for failure to comply with continuing-legal-education (“CLE”) requirements, pursuant to Gov.Bar R. X(5)(C), a sanction imposed for CLE noncompliance “shall not be considered in the imposition of a sanction under Gov.Bar R. Y, Section 8.”

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Cite This Page — Counsel Stack

Bluebook (online)
2013 Ohio 5502, 4 N.E.3d 1006, 138 Ohio St. 3d 129, Counsel Stack Legal Research, https://law.counselstack.com/opinion/disciplinary-counsel-v-anthony-ohio-2013.