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

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Office of Disciplinary Counsel v. Burkhart.
[Cite as Disciplinary Counsel v. Burkhart (1996), ____ Ohio St.3d ____.]
Attorney at law -- Misconduct -- Two-year suspension with credit for
time served from November 12, 1993, with conditions for
reinstatement -- Convictions for theft in office and receiving
stolen property.

(No. 95-1196--Submitted November 7, 1995--Decided March 5,
1996.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances
and Discipline of the Supreme Court, No. 93-74.

In a complaint filed on December 6, 1993, relator, Office of the
Disciplinary Counsel, charged respondent, Gladys F. Burkhart of Crestline,
Ohio, Attorney Registration No. 0022735, with one count of misconduct
involving violations of DR 1-102(A)(3) (illegal conduct involving moral
turpitude), 1-102(A)(4) (conduct involving fraud, deceit, dishonesty, or
misrepresentation) and 1-102(A)(6) (conduct that adversely reflects on
attorney's fitness to practice law). A panel of the Board of Commissioners
on Grievances and Discipline of the Supreme Court ("board") heard the
matter on May 10, 1995.

The parties stipulated at the hearing to the facts underlying the
charged misconduct and to respondent's violation of DR 1-102(A)(4) and
(6), in part, as follows:

"1. Respondent *** was admitted to practice law in the State of Ohio
on May 8, 1967. Respondent is subject to the Code of Professional
Responsibility and the Rules for the Government of the Bar of Ohio.

"2. On November 12, 1993, pursuant to Gov.Bar R. V, §5(A)(2), the
Supreme Court of Ohio indefinitely suspended Respondent from the
practice of law for her felony convictions. ***.

"3. In July of 1979, Respondent was appointed Secretary of the Ohio
Optical Dispensers Board, an administrative board functioning under the
statutes of the State of Ohio. Respondent has also maintained a part-time
legal practice in Crestline, Ohio.
"***

"5. On or about September 30, 1993, a jury found Respondent guilty
on two counts of Theft in Office in violation of O.R.C. §2921.41, felonies
of the third degree; and a single count of Receiving Stolen Property in
violation of O.R.C. §2913.51, a felony of the fourth degree. ***

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"6. On November 4, 1993, Respondent was sentenced to eighteen
month sentences on both the Theft in Office counts and a one-year sentence
on the Receiving Stolen Property count [said sentences to run concurrently].
The court suspended the prison sentence, and Respondent was placed on
probation for three (3) years. Respondent was required to, inter alia, pay
restitution of $8,291.64 and a fine of $1,000.00, as conditions of her
probation. ***

"7. Respondent acknowledges that her conduct violated DR 1-
102(A)(4) *** and, DR 1-102(A)(6) ***."

Respondent was convicted of theft in office and receiving stolen
property because while serving as Executive Secretary or Executive
Director of the Ohio Optical Dispensers Board ("OODB"), she made
personal telephone calls at public expense, she falsified travel vouchers, and
she took a typewriter and answering machine for her personal home use.
Respondent admitted her wrongdoing and expressed her remorse at the
hearing. She explained that she had not been able to obtain approval of
legitimate OODB expenses for various administrative reasons and had
falsified the travel vouchers to receive the reimbursement to which she

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considered herself entitled. She assured the panel that she did not
personally profit from the falsified vouchers. Respondent also explained
that she had taken the office equipment only after it had been replaced by
OODB, and she had used it, at least in part, to conduct OODB business from
her home. Respondent has since returned the office equipment to OODB.

The panel found that respondent violated DR 1-102(A)(4) and (6), but
did not find a violation of DR 1-102(A)(3). In response to relator's
contention that a theft in office conviction necessarily constitutes illegal
conduct involving moral turpitude, the panel determined that respondent's
offenses were committed, in the main, to receive reimbursement for
expenses paid on OODB's behalf and that this circumstance redeemed what
might otherwise be considered a base, vile or depraved act in violation of
DR 1-102(A)(3).

In recommending a sanction for respondent's misconduct, the panel
considered the testimony of five character witnesses and thirty-two letters
from respondent's friends, professional acquaintances, and other members
of her community. All expressed their confidence in her integrity apart
from the acts leading to her felony convictions. The panel also considered

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respondent's undisputed competence as a practitioner, her prior
unblemished legal career, and the devastating effect of the convictions on
her personal life.

Relator suggested that respondent receive an indefinite suspension;
however, the panel saw no reason to conduct the character and competence
review required to gain reinstatement from an indefinite suspension. The
panel instead recommended the sanction suggested by respondent--a two-
year suspension from the practice of law with credit for the period of
respondent's suspension that began on November 12, 1993.

The board adopted the panel's report, including its findings of fact,
conclusions of law and recommendation.

Geoffrey Stern, Disciplinary Counsel, and Alvin E. Mathews,
Assistant Disciplinary Counsel, for relator.

Charles W. Kettlewell, for respondent.

Per Curiam. Upon review of the record, we agree with the board's
findings that respondent violated DR 1-102(A)(4) and (6), as well with its
conclusion that respondent did not violate DR 1-102(A)(3). We, therefore,

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reject the argument raised in relator's objections to the board's report--that
respondent's theft in office convictions involved "moral turpitude."

Acts of moral turpitude, although not subject to exact definition,
Cincinnati Bar Assn. v. Shott (1967), 10 Ohio St.2d. 117, 130, 39 O.O.2d
110, 118, 226 N.E.2d 724, 733, are characterized by "`baseness, vileness, or
the depravity in private and social duties which man owes to his fellow man,
or to society in general ***.'" State v. Adkins (1973), 40 Ohio App.2d 473,
475, 69 O.O.2d 416, 417, 320 N.E.2d 308, 310. Such acts must be
measured against the accepted standards of morality, honesty and justice
prevailing upon the community's collective conscience, as distilled by a
similarly principled judiciary. Accord In re McGrath (1982) 98 Wash.2d
337, 342, 655 P.2d 232, 234. And, where it is not a statutorily defined
element of the charged offense, moral turpitude is a separate issue from the
finding of guilt in a criminal proceeding. Id. at 341-342, 655 P.2d at 234.
Thus, proof of a criminal conviction is generally not conclusive of the issue
of moral turpitude, which requires consideration of all the circumstances
surrounding the illegal conduct. Disciplinary Counsel v. King (1988), 37
Ohio St.3d 77, 78, 523 N.E.2d 857, 859.

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For these reasons, we cannot apply the per se rule relator urges and
declare respondent in violation of DR 1-102(A)(3) simply because we have
done so with respect to other attorneys convicted of felony theft offenses.
See, e.g., Disciplinary Counsel v. Pizzedaz (1994), 68 Ohio St.3d 486, 828
N.E.2d 1359 (attorney committed five counts of theft in office, in violation
of R.C. 2121.41, and one count of tampering with records, in violation of
R.C. 2913.42), and Disciplinary Counsel v. Koury (1990), 50 Ohio St.3d
150, 552 N.E.2d 941 (attorney convicted of grand theft, in violation of R.C.
2913.02[A][2]). Rather, where moral turpitude is disputed, an independent
review of the circumstances underlying criminal convictions is necessary to
determine if they manifest the requisite lack of social conscience and
depravity beyond any established criminal intent. We have conducted that
review in this case and agree with the board that respondent's crimes were
not motivated by an unmitigated interest in personal financial gain at the
expense of public or client coffers, which has been the hallmark of most
theft-related DR 1-102(A)(3) violations in the past. Accordingly, relator's
objection to the board's failure to find this misconduct is overruled.

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Relator also objects to the sanction recommended by the board,
arguing that respondent should receive an indefinite suspension with no
credit for the suspension imposed upon her felony convictions because (1)
she is still on probation for her offenses, and (2) she has not yet made
complete restitution. We agree and respondent concedes that she should
serve out her probation period, which she anticipates to end on or about
November 4, 1996, and make full restitution, including court costs, prior to
reentering the practice of law. With respect to the imposition of an
indefinite suspension, however, we are confident that respondent will never
repeat her crimes and, like the board, consider further review of her
character and professional competence unnecessary.

Accordingly, we order that respondent be suspended from the practice
of law in Ohio for a period of two years, and we grant her credit for the
suspension of her license on November 12, 1993; however, respondent must
complete her probation and pay full restitution, including court costs and
interest at the judgment rate, prior to her reinstatement, and in no case shall
she be reinstated prior to November 1, 1996. Costs taxed to respondent.
Judgment accordingly.

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DOUGLAS, WRIGHT, RESNICK and PFEIFER, JJ., concur.

MOYER, C.J., F.E. SWEENEY and COOK, JJ., dissent.
Cook, J., dissenting. With all due respect, I cannot agree with the
majority's conclusion that respondent's conduct did not violate DR 1-102
(A)(3). The "Victim's Statement" in respondent's presentence report shows
that in addition to receiving $1,193.41 from the false travel vouchers and
$58 from state postage use, respondent charged $2,560.72 in long distance
telephone calls and accepted $4,479.51 from falsifying overtime hours on
time sheets.

The respondent not only is charged with the responsibility to conduct
herself in accordance with the high ideals of our profession, but also, as a
public official, she had the additional trust imposed upon her by virtue of
that office. Her conduct, therefore, ought to be judged to be doubly
unbefitting. No indulgence by the disciplinary system is warranted and I
would indefinitely suspend the respondent with no credit for time served
and condition reinstatement upon the payment of full restitution, including
court costs and interest at the judgment rate.

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MOYER, C.J., and F.E. SWEENEY, J., concur in the foregoing dissenting
opinion.

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