Cincinnati Bar Assn. v. Fidler - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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CINCINNATI BAR ASSOCIATION v. FIDLER.
[Cite as Cincinnati Bar Assn. v. Fidler (1998), ___ Ohio St.3d ___.]
Attorneys at law -- Misconduct -- Eighteen-month suspension with one year of
the sanction stayed on conditions -- Convictions for shoplifting --
Withholding the truth during a disciplinary investigation.
(No. 97-2641 -- Submitted May 13, 1998 -- Decided October 14, 1998.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 96-112.

On April 19, 1985, respondent, Mark W. Fidler of Cincinnati, Ohio,
Attorney Registration No. 0020309, was arrested for taking four compact disks
from Swallens' Department Store in Springdale, Ohio. He paid a fine after
pleading guilty to petty theft in the Springdale Mayor's Court. On March 14,
1996, the MicroCenter computer store at Sharonville, Ohio, charged respondent
with petty theft for concealing three compact disks on his person. Respondent
pled no contest in the Sharonville Mayor's Court, was convicted of disorderly
conduct, and paid a fine of $100.

Respondent reported his 1996 conviction, but not his 1985 conviction, to
the relator, Cincinnati Bar Association. When interviewed by relator with respect
to that report, respondent specifically denied that he had ever stolen anything on
any prior occasion. Later, in a sworn statement, respondent told relator of the
1985 conviction, stating that he had not revealed it earlier because at that time he
believed it had been expunged from his record.

Respondent failed to register timely his status as an attorney with the Ohio
Supreme Court for five successive biennial periods, registering from two days to
five months late.

On December 9, 1996, relator filed a complaint charging that respondent's
convictions, his failure to report his 1985 conviction, and his failures to register
timely with the Supreme Court constituted violations of the Disciplinary Rules.
Respondent answered, and on June 12, 1997, a panel of the Board of
Commissioners on Grievances and Discipline ("board") heard evidence and
received a stipulation of the parties.

The panel found the facts as stated and concluded that respondent's 1985
shoplifting violated DR 1-102(A)(3) (engaging in illegal conduct involving moral
turpitude), (4) (engaging in conduct involving dishonesty, fraud, deceit, or
misrepresentation), and (6) (engaging in conduct that adversely reflects upon the
fitness to practice law). It further concluded that respondent's failure to report the
1985 conviction violated DR 1-103(A) (a lawyer with unprivileged knowledge of
a violation of DR 1-102 shall report such knowledge to an authority empowered to
investigate the violation). It concluded that respondent's failure to timely register
for several registration periods reflected a pattern of dishonesty and evasion of
responsibility, which constituted a violation of DR 1-102(A)(6). And because
respondent practiced during a time when he was not in good standing, the panel
concluded that he violated DR 3-101(B) (a lawyer shall not practice in a
jurisdiction where to do so would be in violation of the regulations of the
profession in that jurisdiction). In mitigation the panel received evidence that at
the time of the thefts respondent was under great personal stress. It also received
sixteen character letters from lawyers and judges. The panel recommended that
respondent be suspended from the practice of law for eighteen months with one
year of the suspension stayed pending successful completion of a one-year
probation period and appropriate counseling to address the problems that caused

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respondent to engage in the underlying misconduct. The board adopted the
findings, conclusions, and recommendations of the panel.
__________________

W. Breck Weigel, Thomas S. Shore and Maria C. Palermo, for relator.

H. Fred Hoefle, for respondent.
__________________
Per
Curiam. We adopt the findings of fact of the board. We conclude that
respondent's convictions for shoplifting were, as respondent stipulated, in
violation of DR 1-102(A)(3), (4), and (6). We further conclude that respondent's
failure to report his 1985 conviction when specifically questioned violated DR 1-
103(A).

Recently, when an attorney withheld the truth during a disciplinary
investigation, we imposed a definite suspension. Butler Cty. Bar Assn. v. Derivan
(1998), 81 Ohio St.3d 300, 691 N.E.2d 256. We find a definite suspension
appropriate in this case. Respondent is hereby suspended from the practice of law
for eighteen months with one year of the suspension stayed pending successful
completion of a one-year probation period and appropriate counseling to address
the problems that caused respondent to engage in the underlying misconduct. Cost
taxed to respondent.
Judgment accordingly.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.

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