[Cite as Disciplinary Counsel v. Curry, 112 Ohio St.3d 130, 2006-Ohio-6517.]




                          DISCIPLINARY COUNSEL v. CURRY.
 [Cite as Disciplinary Counsel v. Curry, 112 Ohio St.3d 130, 2006-Ohio-6517.]
Attorneys — Misconduct — Conduct adversely reflecting on fitness to practice
        law — Failure to cooperate in a disciplinary investigation — One-year
        suspension with reinstatement conditioned.
           (No. 2006-1178 — Submitted September 20, 2006 — Decided
                                  December 27, 2006.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                    Discipline of the Supreme Court, No. 05-070.
                                 __________________
        Per Curiam.
        {¶ 1} Respondent, Charles Eric Curry, last known address in
Youngstown, Ohio, Attorney Registration No. 0062864, was admitted to the
practice of law in Ohio in 1994.             On November 8, 2004, we suspended
respondent’s license to practice for an interim period, pursuant to Gov.Bar R.
V(5)(A)(4), upon notice that he had been adjudicated in default of a support order
for one of his children. See In re Curry, 103 Ohio St.3d 1521, 2004-Ohio-5853,
817 N.E.2d 405. On July 11, 2005, we issued a second interim suspension order,
also pursuant to Gov.Bar R. V(5)(A)(4), upon notice that respondent had been
adjudicated in default of a support order for a second child. See In re Curry, 106
Ohio St.3d 1454, 2005-Ohio-3493, 830 N.E.2d 1163.
        {¶ 2} On August 8, 2005, relator, Disciplinary Counsel, charged
respondent with two counts of professional misconduct, both involving his failure
to pay child support as ordered and his failure to respond to inquiries during
relator’s investigation of this misconduct. Relator attempted to serve respondent
with the complaint by certified mail at the residence and business addresses on
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file for him with the Attorney Registration Section. Respondent had earlier
signed a certified receipt for a letter of inquiry at one of these addresses. These
attempts failed, and relator perfected service on respondent through the Clerk of
the Supreme Court, who is deemed the agent for service of notice for nonresident
attorneys and those who have concealed their whereabouts.               Gov.Bar R.
V(11)(B).
       {¶ 3} Respondent did not answer the complaint, and relator moved for
default pursuant to Gov.Bar R. V(6)(F). A master commissioner appointed by the
Commissioners on Grievances and Discipline granted the motion, making
findings of misconduct and recommending a sanction. The board adopted the
master commissioner’s findings of fact, conclusions of law, and recommendation.
                                    Misconduct
       {¶ 4} Relator’s complaint charged that respondent’s failure to comply
with the two support orders violated DR 1-102(A)(6) (prohibiting conduct that
adversely reflects on a lawyer’s fitness to practice law) and that he had also
violated Gov.Bar R. V(4)(G) (requiring a lawyer to cooperate in a disciplinary
investigation).
       {¶ 5} As to Count I, evidence established that on September 15, 2004,
the Mahoning County Child Support Enforcement Agency (“MCCSEA”) issued a
Notice to Obligor of Default and Potential Action regarding respondent’s failure
to pay child support for his child. The notice certified an arrearage of $33,337.67
and established a current child-support obligation of $465 per month.
       {¶ 6} Respondent has not submitted to the board (1) a certified copy of a
judgment entry reversing the determination of default as to his child-support
obligation, (2) a notice from a court or child-support enforcement agency that
respondent is no longer in default of the child-support order, or (3) a notice from a
court or child-support enforcement agency that respondent is in compliance with a
withholding or deduction notice to collect current support or any arrearage due




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under the child-support order that was in default. Gov.Bar R. V(5)(D)(1)(b) and
(c). The board thus concluded that respondent remained in default of his child-
support obligation and that he had violated DR 1-102(A)(6).
       {¶ 7} On November 23, 2004, following up on our interim suspension
order of November 8, 2004, relator sent a certified letter to respondent’s business
address, as on file with the Attorney Registration Section, inquiring about his
default on the child-support payments. Respondent received the letter but did not
reply. On January 6, 2005, relator’s counsel spoke with respondent regarding his
failure to respond, and respondent promised to cooperate and respond to the letter
of inquiry within two weeks. He did not respond. On January 25, 2005, relator
sent another certified letter urging respondent’s reply to his residence address as
on file with the Attorney Registration Section. Respondent received the letter on
January 28, 2005, but did not reply.
       {¶ 8} The board found that respondent had thereby violated Gov.Bar R.
(V)(4)(G).
       {¶ 9} As to Count II, evidence established that on March 9, 2005,
MCCSEA issued a Notice to Obligor of Default and Potential Action regarding
respondent’s failure to pay child support for a second child. The notice certified
an arrearage of $55,447.31 and established a current child-support obligation of
$678.89 per month as of October 17, 2003.
       {¶ 10} Respondent has not submitted to the board (1) a certified copy of a
judgment entry reversing the determination of default as to his child-support
obligation, (2) a notice from a court or child-support enforcement agency that
respondent is no longer in default of the child-support order, or (3) a notice from a
court or child-support enforcement agency that respondent is in compliance with a
withholding or deduction notice to collect current support or any arrearage due
under the child-support order that was in default. Gov.Bar R. V(5)(D)(1)(b) and




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(c). The board thus concluded that respondent remained in default of his child-
support obligation and that he had violated DR 1-102(A)(6).
        {¶ 11} On February 23, 2005, following up on our interim suspension
order of July 11, 2005, relator sent a certified letter to respondent’s residence
address inquiring about his default on this child-support order.      Respondent
received the letter but did not reply. On April 5, 2005, relator sent a second
certified letter of inquiry to respondent’s residence address. Respondent received
the letter but did not reply.
        {¶ 12} The board found that respondent had thereby violated Gov.Bar R.
V(4)(G).
                                Recommended Sanction
        {¶ 13} In recommending a sanction for respondent’s misconduct, the
board weighed the aggravating and mitigating factors of his case. See Section 10
of the Rules and Regulations Governing Procedure on Complaints and Hearings
Before the Board of Commissioners on Grievances and Discipline (“BCGD
Proc.Reg.”).
        {¶ 14} In aggravation, the board found that respondent had acted with a
dishonest or selfish motive, that he had engaged in more than one offense
representing a pattern of misconduct, and that he had not properly participated in
the disciplinary process.       BCGD Proc.Reg. 10(B)(1)(b), (c), (d), and (e).
Moreover, respondent failed to acknowledge the wrongful nature of his conduct,
had harmed vulnerable victims, and had not made restitution. BCGD Proc.Reg.
10(B)(1)(g), (h), and (i). The board further noted that respondent’s license had
also been under suspension since December 2, 2005, for his failure to register
with the Attorney Registration Section for the biennium commencing September
1, 2005. See In re Attorney Registration Suspension, 107 Ohio St.3d 1431, 2005-
Ohio-6408, 838 N.E.2d 671.




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                                January Term, 2006




       {¶ 15} In mitigation, the board noted that respondent had no record of
disciplinary measures for having violated the Disciplinary Rules in the course of
his practice and representing clients. BCGD Proc.Reg. 10(B)(2)(a). Also in
mitigation, the board learned that respondent was age 40 in 1994 when he was
admitted to the Ohio bar, and that he had spent the preceding approximately ten
years pursuing his law degree while working in other employment. Respondent
was apparently able to keep up with his child-support obligations during this
period but had difficulty doing so once he entered the legal field.
       {¶ 16} Because of his reduced earnings, respondent tried to have his
child-support payments lowered, but he was not successful.            The Mahoning
County Juvenile Court ruled that respondent’s income had fallen based on a
voluntary career change and that the decrease therefore did not warrant
modification.      Thereafter, the court determined respondent’s child-support
payments by imputing his former salary to him and averaging his income.
       {¶ 17} Relator reported in its motion for default that respondent may have
started making small payments toward his child-support obligation relative to
Count II.       No notice sufficient for his reinstatement from either interim
suspension, however, has been filed with this court.
       {¶ 18} Relator also advised that this court has not previously imposed a
disciplinary sanction solely for a lawyer’s failure to pay child support and lack of
cooperation in a disciplinary investigation. Relator cites People v. Spalsbury
(Colo.2005), 111 P.3d 1052, in which the Supreme Court of Colorado found that
an attorney’s failure to comply with court-ordered child support warranted a
suspension from the practice of law for one year and one day. The attorney in
Spalsbury filed a response to the allegations but also did not appear at a hearing
on sanctions and offered no mitigating evidence.
       {¶ 19} Relator has suggested that respondent receive a similar sanction —
a one-year suspension with any reinstatement to be conditioned on his compliance




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with the interim suspension orders issued in 2004 and 2005.           The master
commissioner agreed that a one-year suspension with conditional reinstatement
was appropriate. Adopting the master commissioner’s report, the board also
recommended a one-year suspension with conditions for reinstatement.
                                      Review
          {¶ 20} We agree that respondent violated DR 1-102(A)(6) as found by the
board. We further agree that the recommended sanction is appropriate.
          {¶ 21} The essence of this case is that respondent failed to comply with
court-ordered child support and presented nothing in the way of extenuating
circumstances to explain why he could not do so. The master commissioner aptly
summarized respondent’s failings:
          {¶ 22} “While Respondent’s initial accumulation of child support
arrearages may have resulted from a temporary decrease in the Respondent’s
available income as the result of his change of employment which offered a
potential for greater long range earnings, he has failed to adequately address his
obligations to at least two of his children for the last 12 years while he has held
his professional license to practice law. Furthermore, he has failed to come
forward in these proceedings to offer any evidence in mitigation of a sanction to
be imposed in these proceedings, and he not only has failed to cooperate in the
disciplinary investigation, but has also misrepresented to Relator his intention to
do so.”
          {¶ 23} Respondent is therefore suspended from the practice of law in
Ohio for a period of one year, with no credit for his interim suspension, and with
any reinstatement to be on the condition that he proves compliance with all
requirements imposed in our interim suspension order.         Costs are taxed to
respondent.
                                                            Judgment accordingly.
          MOYER, C.J., RESNICK, PFEIFER, O’CONNOR and O’DONNELL, JJ., concur.




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       LUNDBERG STRATTON and LANZINGER, JJ., dissent.
                              __________________
       LUNDBERG STRATTON, J., dissenting.
       {¶ 24} For the reasons stated in my dissenting opinion in Disciplinary
Counsel v. Geer, 112 Ohio St.3d 124, 2006-Ohio-6516, 858 N.E.2d 388, I dissent
and would leave respondent’s sanction as an interim suspension, rather than a
finite suspension. As soon as respondent becomes current on his arrearage and
current on his child-support obligations, I would allow him to provide proof of
doing so and permit him to apply to be reinstated on the condition that he proves
compliance with all the requirements imposed in this court’s interim suspension
order. In so doing, respondent would be able to more quickly return to the
practice of law and be able to earn a living and better provide for his children. I
respectfully dissent.
       LANZINGER, J., concurs in the foregoing opinion.
                              __________________
       Jonathan E. Coughlan, Disciplinary Counsel, and Stacy Solochek
Beckman, Assistant Disciplinary Counsel, for relator.
                           ______________________




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