[Cite as Disciplinary Counsel v. McNeal, 131 Ohio St.3d 224, 2012-Ohio-785.]




                        DISCIPLINARY COUNSEL v. MCNEAL.
[Cite as Disciplinary Counsel v. McNeal, 131 Ohio St.3d 224, 2012-Ohio-785.]
Attorneys—Misconduct—Multiple violations of Rules of Professional Conduct,
        including engaging in conduct involving dishonesty, fraud, deceit, or
        misrepresentation      and     failing   to   cooperate      in   a    disciplinary
        investigation—One-year suspension.
    (No. 2011-1732—Submitted December 7, 2011—Decided March 1, 2012.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                    Discipline of the Supreme Court, No. 11-032.
                                 __________________
        Per Curiam.
        {¶ 1} Respondent, Earl Darren McNeal of Columbus, Ohio, Attorney
Registration No. 0059218, was admitted to the practice of law in Ohio in 1992.
On April 11, 2011, relator, disciplinary counsel, filed a complaint alleging that
McNeal, a former lieutenant colonel in the United States Air Force Reserve Judge
Advocate General Corps, had resigned from the Air Force rather than face formal
separation procedures. The basis for McNeal’s resignation was an investigation
and report of the Air Force Office of Special Investigations finding that he had
violated the Uniform Code of Military Justice by submitting false pay forms to
obtain $6,518.54 in pay for hours he had not worked and using his military
LexisNexis account for personal purposes related to his private law practice.
        {¶ 2} Relator mailed several letters of inquiry to McNeal. Although they
were not returned by the post office, McNeal did not respond. He failed to appear
for a deposition after a subpoena was hand delivered to his office and did not
respond to relator’s letter informing him of the termination of the investigation.
He ignored the investigator’s in-person suggestion that he contact relator and
                            SUPREME COURT OF OHIO




failed to respond to relator’s notice of intent to file a formal complaint.
Moreover, he did not answer relator’s complaint, which was served at his office
via certified mail.
        {¶ 3} A master commissioner appointed by the Board of Commissioners
on Grievances and Discipline considered relator’s motion and supporting
evidence and found, by clear and convincing evidence, that McNeal violated
Prof.Cond.R. 8.4(c) (prohibiting a lawyer from engaging in conduct involving
dishonesty, fraud, deceit, or misrepresentation), (d) (prohibiting a lawyer from
engaging in conduct that is prejudicial to the administration of justice), and (h)
(prohibiting a lawyer from engaging in conduct that adversely reflects on the
lawyer’s fitness to practice law), as well as 8.1(b) (prohibiting a lawyer from
knowingly failing to respond to a demand for information by a disciplinary
authority during an investigation) and Gov.Bar R. V(4)(G) (requiring a lawyer to
cooperate with a disciplinary investigation).    The board adopted the master
commissioner’s findings of fact and misconduct, as do we.
        {¶ 4} In recommending a sanction, the master commissioner and board
considered the aggravating and mitigating factors listed in BCGD Proc.Reg. 10.
See Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio St.3d 424, 2002-Ohio-4743, 775
N.E.2d 818, ¶ 16. They found only one aggravating factor—that McNeal failed to
cooperate in the disciplinary proceeding—and one mitigating factor—that he did
not have a prior disciplinary record. See BCGD Proc.Reg. 10(B)(1)(e) and
(B)(2)(a). While the master commissioner adopted relator’s recommendation that
McNeal be suspended from the practice of law for one year, the board
recommends that he be indefinitely suspended from the practice of law in Ohio.
        {¶ 5} We have previously imposed a six-month conditionally stayed
suspension on an attorney who had recklessly submitted inaccurate time records
while working as a public servant, sometimes claiming to have worked full days
for the Ohio State Barber Board when he had spent part of the day attending court




                                        2
                                January Term, 2012




proceedings for his private legal clients. See Disciplinary Counsel v. Carroll, 106
Ohio St.3d 84, 2005-Ohio-3805, 831 N.E.2d 1000, ¶ 4-6, 15. Like McNeal,
Carroll did not have a prior disciplinary record.            See BCGD Proc.Reg.
10(B)(2)(a). But Carroll also paid full restitution to the state, pled no contest to a
second-degree misdemeanor charge of dereliction of duty, cooperated fully in the
resulting disciplinary investigation, acknowledged that his conduct reflected
adversely on his fitness to practice law, and resigned from the barber board soon
after the inaccuracies in his timesheets came to light. Carroll at ¶ 6, 10; see also
BCGD Proc.Reg. 10(B)(2)(c), (d), and (f). Although Carroll’s recordkeeping was
deficient, the board found no evidence that he had acted with a dishonest or
selfish motive. Carroll at ¶ 10; see also BCGD Proc.Reg. 10(B)(2)(b).              In
contrast, McNeal’s resignation came after the Air Force conducted a three-month
investigation and initiated a separation action against him.        McNeal has not
cooperated in the disciplinary investigation, and there is no evidence that he has
paid any restitution.
       {¶ 6} In Disciplinary Counsel v. Kraemer, 126 Ohio St.3d 163, 2010-
Ohio-3300, 931 N.E.2d 571, ¶ 4, we disciplined an attorney who had
misappropriated nearly $7,200 by failing to remit 60 percent of the fees collected
from the cases he worked to the firm, as he had agreed. Kraemer did not have a
prior disciplinary record, paid restitution to his former employer, cooperated in
the disciplinary proceedings, and after entering a guilty plea to a fifth-degree
felony-theft charge, was sentenced to three years of community control, fined
$1,000, and ordered to pay restitution, which he did. Id. at ¶ 4, 8; see also BCGD
Proc. Reg. 10(B)(2)(a), (c), (d), (f). He also demonstrated that he had a good
character and reputation outside of the charged misconduct and that his diagnosis
of adjustment disorder with mixed conduct and emotion qualified as a mitigating
factor. Id. at ¶ 8; see also BCGD Proc.Reg. 10(B)(2)(e), (g). Aggravating factors
included Kraemer’s dishonest or selfish motive in stealing his employer’s funds



                                          3
                            SUPREME COURT OF OHIO




and his pattern of misconduct involving multiple offenses. Id. at ¶ 9, see also
BCGD Proc.Reg. 10(B)(1)(b), (d).
        {¶ 7} In Kraemer, we acknowledged that a period of actual suspension is
generally required for attorneys who misappropriate law-firm funds or who
engage in a course of conduct involving dishonesty, fraud, deceit, or
misrepresentation. Id. at ¶ 13. Therefore, we imposed a two-year suspension but,
citing Kraemer’s acceptance of responsibility, his expression of remorse, the short
duration of his conduct, and the absence of any objection from relator, we
credited him for time served under an interim felony suspension arising from the
same conduct. Id. at ¶ 14. We also required Kramer to participate in mental-
health counseling and complete a two-year term of monitored probation. Id. at
¶ 15.
        {¶ 8} We have indefinitely suspended attorneys who have engaged in a
pattern of misappropriating funds from their law firms over a period of years.
See, e.g., Toledo Bar Assn. v. Crossmock, 111 Ohio St.3d 278, 2006-Ohio-5706,
855 N.E.2d 1215 (attorney misappropriated approximately $300,000 from his
firm over a ten-year period and provided more than $6,500 in financial assistance
to a client); Disciplinary Counsel v. Yajko, 77 Ohio St.3d 385, 674 N.E.2d 684
(1997) (attorney deliberately schemed to defraud his employer over a period of
years by retaining the firm’s share of his fees and altering records to conceal his
theft); Disciplinary Counsel v. Crowley, 69 Ohio St.3d 554, 634 N.E.2d 1008
(1994) (indefinitely suspending attorney who misappropriated over $200,000
from his law firm by submitting fraudulent expense-reimbursement requests over
several years).
        {¶ 9} While McNeal’s misconduct is serious, it does not rise to the level
of misconduct in Crossmock, Yajko, or Crowley. It is more serious than Carroll’s,
however, because McNeal has failed to respond to the disciplinary proceedings.
And unlike Kraemer, McNeal has not been charged with a crime. Nor is there




                                        4
                                January Term, 2012




any evidence of any chemical dependency or mental disability that would require
additional monitoring, as there was in Kraemer.         Having weighed McNeal’s
conduct, the aggravating and mitigating factors, and the sanctions imposed for
comparable offenses, we conclude that a one-year suspension from the practice of
law in Ohio is the appropriate sanction in this case.
       {¶ 10} Accordingly, Earl Darren McNeal is hereby suspended from the
practice of law in Ohio for one year. Costs are taxed to McNeal.
                                                            Judgment accordingly.
       O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
                               __________________
       Jonathan E. Coughlan, Disciplinary Counsel, and Heather H. Coglianese,
Assistant Disciplinary Counsel, for relator.
                            ______________________




                                          5
