Disciplinary Counsel v. Smith - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
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Office of Disciplinary Counsel v. Smith.
[Cite as Disciplinary Counsel v. Smith (1994), Ohio
St.3d .]
Attorneys at law -- Misconduct -- Two-year suspension with
credit for time served under interim suspension for felony
conviction and no reinstatement to practice of law prior
to the termination of federal probation -- Conviction of
theft of government property over $100.
(No. 94-490 -- Submitted April 19, 1994 -- Decided June
22, 1994.)
On Certified Report by the Board of Commissioners on
Grievances and Discipline of the Supreme Court, No. 93-36.
On January 19, 1993, the United States District Court for
the Eastern District of Michigan convicted respondent, Robert
Smith III of Warrensville Heights, Ohio, Attorney Registration
No. 0025381, upon his guilty plea, of theft of government
property over $100 in violation of Section 641, Title 18,
U.S.Code. The court sentenced respondent to three years'
probation, one hundred and eighty days of home confinement, and
five hundred hours' community service, and ordered him to pay
the Department of Justice $2,000 in restitution. On April 7,
1993, this court indefinitely suspended respondent from the
practice of law pursuant to Gov.Bar R. V(5)(A)(3) (interim
suspension for felony conviction).
In a complaint filed on June 21, 1993, relator, Office of
Disciplinary Counsel, charged in a single count that respondent
had violated DR 1-102(A)(3) (illegal conduct involving moral
turpitude), 1-102(A)(4) (conduct involving dishonesty, fraud,
deceit, or misrepresentation), and 1-102(A)(6) (any other
conduct that adversely reflects on one's fitness to practice
law). An evidentiary hearing on the matter was held before a
panel of the Board of Commissioners on Grievances and
Discipline of the Supreme Court ("board") on December 17, 1993.
The parties stipulated to the panel that the Federal
Bureau of Investigation ("FBI") had received information that
Detroit drug dealers were being assisted by members of the
Detroit Police Department in the delivery of drugs and the
laundering of drug money. On May 19, 1991, during a meeting

with Willie Volsan and an undercover FBI agent, respondent, at
that time an assistant federal public defender with the Federal
Public Defender's Office in Cleveland, stated that he could
possibly provide the agent with information concerning which
drug dealers were under federal suspicion. At the conclusion
of the meeting, respondent accepted an envelope from the agent
which contained $2,000 in cash. Respondent's federal
conviction for theft of government property was based upon the
May 19, 1991 meeting.
The parties stipulated and the panel found that
respondent's conduct violated DR 1-102(A)(3), 1-102(A)(4), and
1-102(A)(6). Respondent subsequently presented testimonial and
documentary evidence in mitigation at the hearing before the
panel. According to respondent, he was introduced to Volsan by
his father, who knew that respondent wanted to eventually enter
private practice. Respondent believed that when he travelled
to the Detroit area on May 19, 1991, he was going to meet an
individual who Volsan knew needed criminal representation,
would pay expense money for the trip from Cleveland, and would
possibly pay respondent a lucrative retainer. Respondent's
purpose in attending the meeting was to ultimately retain a
client so that he would be able to enter private practice.
During the meeting, respondent was intimidated by Volsan and
the agent, who had talked about "tak[ing] care" of anyone who
informed on them. When respondent accepted the envelope
containing the money, the agent said "[h]ere's two," which
respondent understood to refer to $200 to cover his expenses in
travelling to the Detroit area. After returning to Cleveland,
when he discovered that the envelope actually contained $2,000,
respondent telephoned Volsan and asked about returning the
money because respondent had decided not to get the information
requested by the agent. When Volsan told respondent that he
"didn't get any money," respondent kept the money and
ultimately used it for family expenses following his federal
indictment and the loss of his federal job. Respondent never
acted upon the request at the May 19, 1991 meeting to acquire
information concerning drug dealers from the Federal Public
Defender's Office's computer system.
Respondent, in compliance with his federal sentence, paid
$2,000 in restitution to the federal government, and at the
date of the hearing before the panel, had completed three
hundred hours of community service.
Several individuals, including attorneys, law school
professors, a reverend, and respondent's wife, noted
respondent's reputation for honesty and character and requested
his ultimate reinstatement to practice law. The panel found a
letter from Lynn A. Helland, the Assistant United States
Attorney primarily in charge of the prosecution of respondent's
federal case, to be most persuasive. Helland stated in the
letter:
"I do not believe that Mr. Smith was involved in prior
wrongdoing with Mr. Volsan. I do not regard Mr. Smith as the
instigator of the May 19 meeting with the undercover agent.
Mr. Smith seems to be like several other defendants we had in
this case, generally law-abiding people who, nonetheless,
quickly and easily succumbed to Mr. Volsan's request that they
become involved in serious crime. The possibility exists that

Mr. Smith was not fully informed by Mr. Volsan before attending
the meeting. However, if that is true then I cannot explain
why, once the tenor of the meeting became clear, Mr. Smith went
along with the criminal goals rather than abandoning them.
"I consider Mr. Smith's conduct to be antithetical to that
which we expect of an attorney. However, because I believe
that this was an isolated incident, that he was not the
instigator and in fact, may not have been fully informed of the
meeting's purpose in advance, and because Mr. Smith did not act
on the agreement that he made with the undercover agent, I do
not think that this incident should automatically terminate his
legal career. Rather, I think that Mr. Smith should have the
opportunity, after a suspension of suitable length, to be
readmitted to the practice of law."
Relator recommended that respondent be indefinitely
suspended from the practice of law, whereas respondent
recommended a two-year suspension with no credit for time
served from his April 7, 1993 suspension. The panel
recommended a two-year suspension with no credit for time
already served.
The board adopted the findings of fact and conclusions of
law of the panel. However, after "considering the
extraordinary circumstances of this case and the findings in
mitigation," the board recommended that respondent be given a
two-year suspension with credit for time served. The board
further recommended that respondent not be reinstated to
practice law until his federal probation had terminated and
that costs be taxed to respondent.

Geoffrey Stern, Disciplinary Counsel, and Sally Ann Steuk,
Assistant Disciplinary Counsel, for relator.
Koblentz & Koblentz, Richard S. Koblentz and Peter A.
Russell, for respondent.

Per Curiam. We concur in the findings and recommendation
of the board. Accordingly, Robert Smith III is hereby
suspended from the practice of law for two years, and he is to
be credited for the time he has served under our order of April
7, 1993. Additionally, respondent is not to be reinstated to
the practice of law prior to the termination of his federal
probation. Costs taxed to respondent.
Judgment accordingly.
Moyer, C.J., A.W. Sweeney, Douglas, Wright, Resnick and
Pfeifer, JJ., concur.
F.E. Sweeney, J., dissents and would indefinitely suspend
respondent from the practice of law.