Akron Bar Assn. v. Brustoski - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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Akron Bar Association v. Brustoski.
[Cite as Akron Bar Assn. v. Brustoski (1994), Ohio
St.3d .]
Attorneys at law -- Misconduct -- Permanent disbarment --
Illegal conduct involving moral turpitude -- Conduct
adversely reflecting on fitness to practice law --
Engaging in conduct involving dishonesty, fraud, deceit or
misrepresentation -- Conduct prejudicial to the
administration of justice -- Theft of money and drugs from
evidence vault in office of Summit County Clerk of Courts.
(No. 93-2531 -- Submitted January 26, 1994 -- Decided
March 23, 1994.)
On Certified Report by the Board of Commissioners on
Grievances and Discipline of the Supreme Court, No. 93-10.
In a complaint filed on February 16, 1993, relator, Akron
Bar Association, charged respondent Warren Paul Brustoski, also
known as Brustosky, of Akron, Attorney Registration No.
0041112, with four counts of disciplinary violations. These
offenses occurred when respondent stole money and drugs from an
evidence vault in the office of the Summit County Clerk of
Courts. In his answer, respondent admitted the allegations
except for the amount of money stolen, and the parties later
stipulated to that amount.
On November 17, 1993, a panel of the Board of
Commissioners on Grievances and Discipline of the Supreme Court
("board") held a hearing on the matter. The complaint, answer,
and evidence at the hearing established that respondent worked
for the Summit County Clerk of Courts from February 1989 until
May 1991. In May 1991, respondent entered private practice,
but he periodically visited the clerk's office at the Summit
County Court of Appeals and used his friendship with two court
employees to secure access to the evidence vault. Respondent
stole a total of $6,611.88 in currency and, on at least five
occasions, a quantity of cocaine. Respondent also stole an
undetermined amount of marijuana. In June 1992, a hidden
camera in the vault photographed respondent stealing cocaine.
Police immediately arrested respondent and found more than
thirty grams of cocaine on him. A thirteen-count indictment

followed.
In December 1992, the Summit County Common Pleas Court,
after accepting respondent's guilty pleas and dismissing six of
the counts, sentenced respondent to one and one-half years for
theft of currency, three to fifteen years, including three
years, actual incarceration, for aggravated trafficking of
drugs, and one and one-half years for each of five counts of
theft of drugs, the terms of imprisonment to run
concurrently.1 The court also imposed a $5,000 fine, a
restitution award of $6,611.88, and ordered respondent to pay
the costs of prosecution. Respondent remains a prisoner at
Marion Correctional Institution.
At his disciplinary hearing, respondent testified that he
began using cocaine in 1990. He eventually developed a $200 to
$300 per week cocaine habit, taking cocaine five days a week,
partly due to the stress of his mother's suffering a stroke.
Respondent testified that he took drugs only from closed
criminal cases, that his actions never compromised a criminal
prosecution, and that he alone consumed the drugs he took. He
claimed he never took drugs or money while employed in the
clerk's office.
Numerous character references were presented at the
hearing, and together with character testimony established that
respondent, admitted to practice in 1988, was thought of as an
honest, conscientious, and diligent attorney. "[H]e was
well-liked and respected, not only by the legal community but
also by non-lawyers[.] * * * None of the witnesses suspected
that the respondent was addicted to cocaine. * * * [They] were
shocked to learn that he had abused drugs." Respondent was
filled with remorse, and the panel found none of respondent's
clients was prejudiced by his conduct.
The panel found that respondent had violated DR
1-102(A)(3) (illegal conduct involving moral turpitude) and
1-102(A)(6) (conduct adversely reflecting on his fitness to
practice law), as charged in all four counts of the complaint.
Respondent had also violated DR 1-102(A)(4)(dishonesty, fraud,
deceit, or misrepresentation) and 1-102(A)(5)(conduct
prejudicial to the administration of justice), as charged in
Counts One, Three and Four. Both relator and respondent
recommended an indefinite suspension from the practice of law,
and the panel agreed.
The board adopted the findings of fact, conclusions of
law, and recommendations of the panel, and further recommended
that the costs of the proceedings be taxed to respondent.

Joseph S. Kodish, Ernest R. Stein and Kurt Weitendorf, for
relator.
A. Edward Bonetti, Jr., for respondent.

Per Curiam. We concur with the board's findings of fact,
but find disbarment to be the appropriate disciplinary action.
For over one year, respondent abused his positions as a trusted
former employee, an attorney, and an officer of the court to
commit felonies. Respondent's offenses disrupted the orderly
administration of justice and warranted actual incarceration in
prison for at least three years. Accordingly, respondent is
hereby permanently disbarred from the practice of law in Ohio.

Costs taxed to respondent.
Judgment accordingly.
Moyer, C.J., Resnick, F.E. Sweeney and Pfeifer, JJ.,
concur.
A.W. Sweeney, Douglas and Wright, JJ., dissent.

FOOTNOTE
1 On January 7, 1993, Brustoski was indefinitely suspended
from the practice of law pursuant to Gov.Bar.R. V(5)(A)(3). In
re Brustoski (1993), 65 Ohio St.3d 1486, 604 N.E.2d 1365.
Douglas, J., dissenting. The relator, Akron Bar
Association, the three-person panel of the Board of
Commissioners on Grievances and Discipline and the board itself
all recommended indefinite suspension of respondent. I would
adopt their recommendation and, therefore, I respectfully
dissent.
A.W. Sweeney and Wright, JJ., concur in the foregoing
dissenting opinion.