[Cite as Disciplinary Counsel v. Bennett, 124 Ohio St.3d 314, 2010-Ohio-313.]




                        DISCIPLINARY COUNSEL v. BENNETT.
[Cite as Disciplinary Counsel v. Bennett, 124 Ohio St.3d 314, 2010-Ohio-313.]
Attorney misconduct, including engaging in conduct involving dishonesty, fraud,
        or deceit — Indefinite suspension, with credit for time served under
        felony-conviction interim suspension.
  (No. 2009-1100 — Submitted August 11, 2009 — Decided February 4, 2010.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                    Discipline of the Supreme Court, No. 08-037.
                                  __________________
        Per Curiam.
        {¶ 1} Respondent, Clyde Bennett II, formerly of Mason, Ohio, Attorney
Registration No. 0059910, was admitted to the practice of law in Ohio in 1992.
On February 15, 2008, we suspended respondent’s license to practice on an
interim basis pursuant to Gov.Bar R. V(5)(A)(4) upon receiving notice that he had
been convicted of a felony. See In re Bennett, 117 Ohio St.3d 1401, 2008-Ohio-
594, 881 N.E.2d 270.
        {¶ 2} The Board of Commissioners on Grievances and Discipline
recommends that we now suspend respondent from practice for one year and give
him credit for the time his license has been under the interim suspension. The
board made this recommendation based on findings that respondent had structured
financial transactions to avoid federal reporting requirements for transfers in
excess of $10,000, the illegal conduct that led to his conviction. We agree that
respondent violated ethical standards incumbent upon Ohio attorneys but hold that
an indefinite suspension, with credit for the interim suspension, is the appropriate
sanction.
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       {¶ 3} Relator, Disciplinary Counsel, charged respondent with violating
two Disciplinary Rules of the Code of Professional Responsibility: DR 1-
102(A)(4) (a lawyer shall not engage in conduct involving dishonesty, fraud,
deceit, or misrepresentation) and 1-102(A)(6) (a lawyer shall not engage in
conduct that adversely reflects on the lawyer’s fitness to practice law). The
parties waived an evidentiary hearing and filed agreed stipulations in which
respondent admitted the cited misconduct and the parties proposed that he receive
a one-year suspension with credit for the time served since his February 15, 2008
interim suspension. A panel of three board members recommended acceptance of
the agreed stipulations and proposed sanction. The board adopted the panel’s
report, accepting the stipulations and recommendation.
                                   Misconduct
       {¶ 4} The parties stipulated to respondent’s violations of DR 1-
102(A)(4) and (6), and to the following underlying facts:
       {¶ 5} 1. “On September 26, 2007, respondent pled guilty to a one-count
Bill of Information alleging a Class C Felony in violation of 31 USC §5342(a)(3)
and (d)(2) [sic, 5324(a)(3) and (d)(2)] and 18 USC §2 for unlawfully structuring
financial transactions, Case No. 3:07CR144.”
       {¶ 6} 2. “On December 28, 2007, U.S. District Court Judge Thomas
Rose sentenced respondent to 24 months in prison and a $4,000 fine.”
       {¶ 7} 3. “Under 31 USC §5313, certain federal regulations, namely 31
CFR §§ 103.11 and 103.22, required domestic financial institutions to prepare and
file FINCEN Form 104 whenever they were involved in the payment, receipt, or
transfer of U.S. Currency exceeding $10,000.”
       {¶ 8} 4. “At all times herein, respondent was aware of such regulations.”
       {¶ 9} 5. “Structuring occurs when a person conducts one or more
currency transactions at one or more financial institutions (or different branches
of the same financial institution), on one or more days. One does this with the




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purpose of evading currency transaction reporting requirements.           Structuring
includes breaking down a single sum of currency over $10,000 into smaller sums
or conducting a series of case [sic] transactions all at or below $10,000 with the
purpose of evading currency transaction reporting requirements.”
          {¶ 10} 6. “During a five-month period, respondent unlawfully structured
approximately $124,300 with various financial institutions located around
Cincinnati, Ohio for the express purpose of evading the above-mentioned
reporting requirements.”
          {¶ 11} 7. “A majority of $124,300 was currency respondent had obtained
from previously cashed paychecks that were issued to respondent by his employer
* * *.”
          {¶ 12} 8. “A certain unspecified portion of the currency transactions
identified below originated from income that respondent received, but improperly
failed to report and account to the Internal Revenue Service. The following
paragraphs illustrate respondent’s criminal activity.”
          {¶ 13} 9. “On August 15 and 16, 2002, respondent unlawfully structured
$18,000 in U.S. Currency by making the following deposits:
          “• $4,000 at Fifth Third Bank, 916 Main St., Cincinnati
          “• $5,000 at Fifth Third Bank, 201 E. Fourth St., Cincinnati
          “• $3,000 at Fifth Third Bank 38 Fountain Square, Cincinnati
          “• $6,000 at Fifth Third Bank, 916 Main St., Cincinnati.”
          {¶ 14} 10. “Between September 11, 2002 and September 13, 2002,
respondent unlawfully structured $29,300 in U.S. Currency by making the
following deposits:
          “• $7,000 at Fifth Third Bank, 38 Fountain Square, Cincinnati
          “• $8,000 at Fifth Third Bank, 916 Main St., Cincinnati
          “• $5,000 at Fifth Third Bank, 38 Fountain Square, Cincinnati
          “• $3,000 at Fifth Third Bank, 5th & Broadway, Cincinnati



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        “• $6,300 at Fifth Third Bank, 201 E. Fourth St., Cincinnati.”
        {¶ 15} 11. “Between September 18, 2002 and September 20, 2002,
respondent unlawfully structured $20,000 in U.S. Currency by making the
following deposits:
        “• $5,000 at Fifth Third Bank, 38 Fountain Square, Cincinnati
        “• $8,000 at Fifth Third Bank, 38 Fountain Square, Cincinnati
        “• $7,000 at Fifth Third Bank, 38 Fountain Square, Cincinnati.”
        {¶ 16} 12. “Between September 23, 2002 and September 27, 2002, the
respondent unlawfully structured $32,000 in U.S. Currency by making the
following deposits:1 [Footnote sic.]
        “• $8,000 at Fifth Third Bank, 916 Main St., Cincinnati
        “• $7,000 at Fifth Third Bank, 38 Fountain Square, Cincinnati
        “• $3,000 at Fifth Third Bank, 38 Fountain Square, Cincinnati
        “• $4,000 at Fifth Third Bank, 5th & Broadway, Cincinnati
        “• $4,000 at Fifth Third Bank, 38 Fountain Square, Cincinnati
        “• $6,000 at Fifth Third Bank, 38 Fountain Square, Cincinnati.”
        {¶ 17} 13. “Between September 28, 2002 and October 1, 2002,
respondent unlawfully structured $12,000 in U.S. Currency by making the
following deposits:
        “• $2,500 at Fifth Third Bank, 1212 West Kemper, Cincinnati
        “• $6,000 at Fifth Third Bank, 38 Fountain Square, Cincinnati
        “• $3,500 at Fifth Third Bank, 201 E. Fourth St., Cincinnati.”
        {¶ 18} 14. “On January 14 and 15, 2003, respondent unlawfully structured
$13,000 in U.S. Currency by making the following deposits:
        “• $9,000 at Fifth Third Bank, 38 Fountain Square, Cincinnati


1. “Respondent pled guilty to unlawfully structuring transactions between September 23, 2002 and
September 27, 2002. The remainder of the transactions were not included in the Bill of
Information.”




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                               January Term, 2010




       “• $4,000 at Fifth Third Bank, 38 Fountain Square, Cincinnati.”
       {¶ 19} 15. “As part of the plea agreement, respondent agreed, that if
necessary, he would file corrected U.S. Federal Income Tax returns for 2003 and
2004 within 120 days of the plea.”
       {¶ 20} 16. “For the year 2003 and 2004, respondent and his wife filed
joint tax returns and paid $75,540 and $76,153 in federal income taxes
respectively.”
       {¶ 21} 17.      “To date, neither the IRS nor the U.S. Department of
Probation has advised respondent of the need to amend his 2003 and 2004 taxes.”
       {¶ 22} We accept these stipulations and find that respondent violated DR
1-102(A)(4) and (6).
                                     Sanction
       {¶ 23} In determining the appropriate sanction for a lawyer’s misconduct,
we consider sanctions imposed in similar cases and whether aggravating or
mitigating factors under BCGD Proc.Reg. 10(B) weigh in favor of a harsher or
more lenient disposition. Citing no aggravating features, the parties stipulated to
the mitigating factors that respondent (1) does not have a prior disciplinary
record, (2) provided full and free disclosure to the board with a cooperative
attitude toward the proceedings, and (3) offered positive character evidence. See
BCGD Proc.Reg. 10(B)(2)(a), (d), and (e).
       {¶ 24} The parties have also stipulated in mitigation that other penalties
and sanctions have been imposed for respondent’s illegal conduct ⎯ he was
sentenced to two years in prison and ordered to pay a $4,000 fine. See BCGD
Proc.Reg. 10(B)(2)(f). Although this is true, the punishment was for only a
portion of the violations committed.        As part of a plea agreement with
prosecutors, respondent pleaded guilty to structuring $32,000 in transactions from
September 23 through 27, 2002, but he admits in the stipulations in this case that




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he structured other transactions as well.       This reduces the weight of that
mitigating factor.
       {¶ 25} We also find a number of aggravating factors applicable to this
case that the parties, panel, and board do not mention.             First, although
respondent’s motive for illegally structuring financial transactions is not clear
from the record before us, the bill of information to which he pleaded guilty
stated that he structured the $32,000 transaction by making each deposit “into
another individual’s savings account.” Respondent apparently thought it was
worth the risk of prosecution for evading the reporting requirements for domestic
financial institutions. His criminal conduct thus manifests dishonest and selfish
motives, aggravating factors under BCGD Proc.Reg. 10(B)(1)(b). Respondent
also engaged in his illegal activity over a five-month period, making 23 separate
deposits at various banks, which constitutes a pattern of misconduct, an
aggravating factor under BCGD Proc.Reg. 10(B)(1)(c). An indefinite suspension
is therefore appropriate.
       {¶ 26} We accept the parties’ proposal to credit respondent for his interim
felony suspension. In their stipulations, the parties list the following cases in
which lawyers who were convicted of felonies were given credit for the time their
licenses were under interim suspensions:
       {¶ 27} “In Disciplinary Counsel v. Blaszak, 104 Ohio St.3d. 330, 819
N.E.2d 689, 2004-Ohio-6593, the Supreme Court of Ohio imposed a two-year
suspension with credit for time served after the respondent pled guilty to selling
witness testimony in a pending case. In Cuyahoga County Bar Assn. v. Garfield,
109 Ohio St.3d 103, 846 N.E.2d 45, 2006-Ohio-1935, the Ohio Supreme Court
imposed an 18-month suspension with credit for time served after finding that the
respondent pled guilty to one count of bank fraud for pledging a company’s
certificate of deposit as collateral for a personal loan. Id. In Disciplinary Counsel
v. Petroff, 85 Ohio St.3d 396, 709 N.E.2d 111, 1999-Ohio-400, the Ohio Supreme




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Court suspended Mark Petroff for one year with credit for time served after the
respondent pled guilty to attempting to evade federal income taxes. Id. After
Attorney William Seall was sentenced to four months in prison and a $7,000 fine
for conspiring to commit tax fraud, the Supreme Court of Ohio suspended Seall
for one year with credit for time served under the interim suspension. Dayton Bar
Assn. v. Seall, 81 Ohio St.3d 280, 690 N.E.2d 1271, 1998-Ohio-630.”
       {¶ 28} Respondent is therefore indefinitely suspended from the practice of
law in Ohio; however, we grant credit for the time he has served under the
February 15, 2008 interim suspension order, In re Bennett, 117 Ohio St.3d 1401,
2008-Ohio-594, 881 N.E.2d 270, toward the two-year period that respondent must
wait before petitioning for reinstatement under Gov.Bar R. V(10)(B). Respondent
may petition for reinstatement upon completion of respondent’s supervised
release. Costs are taxed to respondent.
                                                          Judgment accordingly.
       MOYER, C.J., and LUNDBERG STRATTON, O’CONNOR, O'DONNELL,
LANZINGER, and CUPP, JJ., concur.
       PFEIFER, J., dissents and would impose the one-year suspension
recommended by the board.
                              __________________
       Jonathan E. Coughlan, Disciplinary Counsel, and Joseph M. Caliguri,
Assistant Disciplinary Counsel, for relator.
       Clyde Bennett II, pro se.
                            ______________________




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