[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Martinez, Slip Opinion No. 2016-Ohio-2709.]




                                         NOTICE
     This slip opinion is subject to formal revision before it is published in an
     advance sheet of the Ohio Official Reports. Readers are requested to
     promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
     South Front Street, Columbus, Ohio 43215, of any typographical or other
     formal errors in the opinion, in order that corrections may be made before
     the opinion is published.



                         SLIP OPINION NO. 2016-OHIO-2709
                      DISCIPLINARY COUNSEL v. MARTINEZ.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
         may be cited as Disciplinary Counsel v. Martinez, Slip Opinion
                                 No. 2016-Ohio-2709.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct—
        Conditionally stayed six-month suspension.
   (No. 2015-1633—Submitted November 17, 2015—Decided April 28, 2016.)
        ON CERTIFIED REPORT by the Board of Professional Conduct of the
                            Supreme Court, No. 2014-109.
                             _______________________
        Per Curiam.
        {¶ 1} Respondent, Hector Gerald Martinez Jr. of Willoughby, Ohio,
Attorney Registration No. 0068832, was admitted to the practice of law in Ohio in
1997.
                                 SUPREME COURT OF OHIO




        {¶ 2} On December 15, 2014 a probable-cause panel of the Board of
Commissioners on Grievances and Discipline1 certified a complaint filed by relator,
disciplinary counsel, to the board. In that complaint, relator alleged that Martinez
violated four Rules of Professional Conduct by participating in the attempted
bribery of one of his clients.
        {¶ 3} The parties entered into stipulations of fact, misconduct, and
mitigation and jointly recommend that Martinez be suspended from the practice of
law for six months, all stayed. A panel of the Board of Professional Conduct
conducted a hearing and issued a report unanimously adopting the parties’
stipulations and recommended sanction.2 The board adopted the panel’s report in
its entirety, and neither party has objected.
        {¶ 4} We adopt the board’s findings of fact, misconduct, and mitigating
factors and conclude that a conditionally stayed six-month suspension is the
appropriate sanction for Martinez’s misconduct.
                                         Misconduct
        {¶ 5} In November 2011, L.A. retained Martinez to obtain a civil protection
order (“CPO”) against Thomas Castro, who had sexually assaulted and stalked her.
After Castro consented to the CPO, Martinez and L.A. met with a detective to
discuss the criminal assault. Castro was later indicted on several counts of rape and
sexual battery involving L.A. and another woman.
        {¶ 6} When Martinez met with L.A. to discuss the criminal case against
Castro, she authorized him to inform the prosecutor that she did not want to pursue
criminal charges. Martinez’s representation of L.A. ended after an April 2012




1
  Effective January 1, 2015, the Board of Commissioners on Grievances and Discipline has been
renamed the Board of Professional Conduct. See Gov.Bar R. V(1)(A), 140 Ohio St.3d CII.
2
  The panel also unanimously dismissed one of the four alleged violations in support of which the
parties had not submitted testimony or stipulations.




                                               2
                                January Term, 2016




meeting with the prosecutor, though he later reached out to inform L.A. that Castro
had pled guilty in his criminal case.
       {¶ 7} Before Castro was sentenced, his business attorney, Anthony
Calabrese, spoke to Martinez about L.A.         Calabrese, who was under federal
indictment at that time, had referred minor traffic cases to Martinez in the past. He
told Martinez that Castro was willing to settle any civil claims that L.A. might have
against Castro if she would write a favorable letter to the sentencing judge.
Calabrese wrote a note that said, “No Jail,” which Martinez took to mean that in
return for the proposed monetary settlement, L.A. was expected to request that the
sentencing judge not send Castro to jail.
       {¶ 8} Martinez had not been retained to pursue a civil action against Castro
and had not even discussed the possibility of such a suit with L.A. And while he
was aware that some potential civil claims had already expired, he thought that
there might be some viable claims arising from the stalking incident. Martinez
informed L.A. that Castro’s other victim may have received a settlement and asked
whether he could pursue a settlement on her behalf, which she authorized.
       {¶ 9} After L.A. told him that she was inclined to reject the settlement offer,
Martinez advised L.A. that some of her civil claims were still viable but that she
would be less likely to recover against Castro following his criminal sentencing.
He offered to negotiate the settlement for a contingent fee of 15 percent. Later,
L.A. sent Martinez a text stating, “[N]o deal and I intend to write a bad letter.”
Martinez replied stating that he would let Castro and his counsel know. He then
sent L.A. another text informing her that they had increased their offer and that he
was obligated to inform her of that fact.
       {¶ 10} In response, L.A. asked Martinez whether it was illegal for Castro to
offer her money before his sentencing. Martinez replied that it was not illegal as
long as the offer was to resolve civil claims but that she could not offer “to dismiss”
the criminal charges in exchange for the civil settlement. After meeting with a




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detective to discuss her interactions with Martinez, L.A. sent Martinez a text stating
that the prosecutor thought the offer of money was illegal and that the authorities
wanted her to move forward with the agreement so that Castro could be charged
with bribery. L.A. further stated that she wanted “to agree to the letter to trick
[Castro] into getting busted for bribery.” Thereafter, Martinez sent L.A. a letter
terminating his representation but stating reasons for that action that were untrue.
       {¶ 11} On the advice of counsel, Martinez agreed to proffer testimony to
the grand jury in exchange for a misdemeanor charge for his role in the bribery
scheme. Calabrese pleaded guilty to engaging in corrupt activity and four counts
of bribery with respect to L.A. and Castro’s other victim, and we subsequently
disbarred him from the practice of law in Ohio based on those convictions and other
criminal conduct.    State v. Calabrese, Cuyahoga C.P. No. CR-13-571014-B;
Disciplinary Counsel v. Calabrese, 143 Ohio St.3d 229, 2015-Ohio-2073, 36
N.E.3d 151. Martinez testified for the state in the trial of Castro’s two criminal
attorneys—Marc Doumbas and Tim Marshall, both of whom were convicted of
orchestrating a felonious bribe of Castro’s other victim, and their convictions were
affirmed on appeal. State v. Doumbas, 8th Dist. Cuyahoga No. 100777, 2015-Ohio-
3026; and State v. Marshall, 8th Dist. Cuyahoga No. 100736, 2015-Ohio-2511.
Based on their felony convictions, they have been suspended from the practice of
law on an interim basis pursuant to Gov.Bar R. V(5)(A)(4). In re Doumbas, 138
Ohio St.3d 1225, 2014-Ohio-23, 3 N.E.3d 1207; In re Marshall, 138 Ohio St.3d
1227, 2014-Ohio-24, 3 N.E.3d 1209.
       {¶ 12} Martinez pleaded no contest to obstructing official business, a
second-degree misdemeanor, in violation of R.C. 2921.31(A). He was sentenced
to ten days in jail, all suspended; three months of probation; 25 hours of community
service; and a $750 fine. State v. Martinez, Cuyahoga C.P. No. CR-13-580051-A.
He has successfully completed his sentence.




                                          4
                                 January Term, 2016




        {¶ 13} The parties stipulated and the board found that Martinez’s conduct
violated Prof.Cond.R. 8.4(b) (prohibiting a lawyer from committing an illegal act
that reflects adversely on the lawyer’s honesty or trustworthiness), 8.4(c)
(prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit,
or misrepresentation), and 8.4(d) (prohibiting a lawyer from engaging in conduct
that is prejudicial to the administration of justice).
        {¶ 14} We adopt the board’s findings of fact and misconduct.
                                       Sanction
        {¶ 15} When imposing sanctions for attorney misconduct, we consider
relevant factors, including the ethical duties the lawyer violated and the sanctions
imposed in similar cases. Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio St.3d 424,
2002-Ohio-4743, 775 N.E.2d 818, ¶ 16. We also weigh evidence of the aggravating
and mitigating factors listed in Gov.Bar R. V(13).
        {¶ 16} The parties stipulated and the board found that relevant mitigating
factors in this case include the absence of a prior disciplinary record, a cooperative
attitude toward the disciplinary proceedings, evidence of Martinez’s good character
and reputation apart from the charged misconduct, and the criminal sanctions
imposed for his conduct. See Gov.Bar R. V(13)(C)(1), (4), (5), and (6). The board
found Martinez to be a very impressive witness who was contrite and truly
remorseful for his misconduct and that his demeanor and testimony demonstrated
that he has learned the necessary lessons from this experience. Neither the parties
nor the board identified any applicable aggravating factors.
        {¶ 17} The board adopted the parties’ recommendation that Martinez be
suspended from the practice of law for six months, all stayed, for his misconduct.
In support of this recommendation, the board cites Disciplinary Counsel v. Grubb,
142 Ohio St.3d 521, 2015-Ohio-1349, 33 N.E.3d 40. In Grubb, we imposed a
stayed six-month suspension on an attorney who was convicted of a first-degree-
misdemeanor charge of complicity to commit workers’ compensation fraud by




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providing funds to a client in violation of Ohio law while the client was receiving
temporary-total-disability benefits.
            {¶ 18} We adopt the board’s analysis and agree that a fully stayed six-
month suspension is the appropriate sanction in this case.
            {¶ 19} Accordingly, Hector Gerald Martinez Jr. is suspended from the
practice of law in Ohio for six months, all stayed on the condition that he engage in
no further misconduct. If Martinez fails to comply with the condition of the stay,
the stay will be lifted and he will serve the entire six-month suspension. Costs are
taxed to Martinez.
                                                               Judgment accordingly.
            PFEIFER, LANZINGER, KENNEDY, and O’NEILL, JJ., concur.
            O’DONNELL, J., dissents with an opinion that O’CONNOR, C.J., and FRENCH,
J., join.
                                   _________________
            O’DONNELL, J., dissenting.
            {¶ 20} Respectfully, I dissent.
            {¶ 21} Martinez knowingly participated in a scheme to bribe a crime victim
when he transmitted an offer purporting to settle civil claims against Castro, the
perpetrator, in exchange for the victim writing a letter urging the sentencing judge
not to impose a jail sentence on him. After the victim contacted the prosecutor and
decided to accept the deal to “trick [Castro] into getting busted for bribery,”
Martinez abruptly terminated the representation, as the majority says, “stating
reasons for that action that were untrue.” Majority opinion at ¶ 10. Actually, in
an apparent attempt to frustrate the investigation, he made unsubstantiated claims
that the victim had failed to notify him of her change of address, failed to remain in
contact with him, failed to pay him the costs and expenses of litigation, and failed
to sign a written fee agreement.




                                              6
                               January Term, 2016




       {¶ 22} Martinez then offered to give testimony against other attorneys
involved in the bribery scheme in exchange for the prosecutor’s agreement to
charge him with only a misdemeanor count of obstruction for his part in the bribery
scheme. After providing that testimony, he pleaded no contest to obstructing
official business, a second-degree misdemeanor, in violation of R.C. 2921.31(A).
       {¶ 23} The parties stipulate that Martinez violated Prof.Cond.R. 8.4(b)
(prohibiting a lawyer from committing an illegal act that reflects adversely on the
lawyer’s honesty or trustworthiness), 8.4(c) (prohibiting a lawyer from engaging in
conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d)
(prohibiting a lawyer from engaging in conduct that is prejudicial to the
administration of justice). The board accepted these stipulations and the parties’
recommendation that Martinez be suspended from the practice of law for six
months, all stayed, and the majority adopts those findings and the recommended
sanction.
       {¶ 24} As we explained in Disciplinary Counsel v. Young, 102 Ohio St.3d
113, 2004-Ohio-1809, 807 N.E.2d 317, ¶ 14, “[w]hen an attorney has attempted to
thwart the administration of justice, disbarment is an accepted sanction.” We
therefore have not hesitated to disbar attorneys for committing bribery. See, e.g.,
Disciplinary Counsel v. Calabrese, 143 Ohio St.3d 229, 2015-Ohio-2073, 36
N.E.3d 151; Disciplinary Counsel v. Phillips, 108 Ohio St.3d 331, 2006-Ohio-
1064, 843 N.E.2d 775; Disciplinary Counsel v. Melamed, 62 Ohio St.3d 187, 580
N.E.2d 1077 (1991).
       {¶ 25} And we have indefinitely suspended attorneys who attempted
bribery. E.g., Disciplinary Counsel v. Cohen, 142 Ohio St.3d 471, 2015-Ohio-2020,
32 N.E.3d 455; Young, 102 Ohio St.3d 113, 2004-Ohio-1809, 807 N.E.2d 317; Bar
Assn. of Greater Cleveland v. Italiano, 24 Ohio St.3d 204, 494 N.E.2d 1113 (1986).
In other cases, we have indefinitely suspended attorneys for suggesting that the
outcome of a proceeding could be improperly influenced through a bribe. E.g.,




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                              SUPREME COURT OF OHIO




Dayton Bar Assn. v. O’Brien, 103 Ohio St.3d 1, 2004-Ohio-3939, 812 N.E.2d 1263;
Columbus Bar Assn. v. Benis, 5 Ohio St.3d 199, 449 N.E.2d 1305 (1983); Ohio
State Bar Assn. v. Consoldane, 50 Ohio St.2d 337, 364 N.E.2d 279 (1977).
       {¶ 26} Nonetheless, we have previously recognized that when an attorney
presents sufficient mitigation, a sanction short of an indefinite suspension is
appropriate. Thus, in Disciplinary Counsel v. Blaszak, 104 Ohio St.3d 330, 2004-
Ohio-6593, 819 N.E.2d 689, we imposed a two-year suspension on an attorney
convicted of offering to sell his own testimony for $500,000. Although we
“acknowledge[d] that we have imposed an indefinite suspension for professional
misconduct involving attorneys who suggested that bribery could accomplish a
certain result,” id. at ¶ 23, the attorney’s “overwhelming evidence of mitigation”
militated against a harsher sanction, id. at ¶ 24.
       {¶ 27} The mitigating evidence in this case includes the absence of a prior
disciplinary record, a cooperative attitude toward the disciplinary proceedings,
evidence of Martinez’s good character and reputation, and the criminal sanctions
already imposed. However, a stayed minimum suspension of six months is an
insufficient sanction for conduct involving bribery, because Martinez engaged in
conduct that not only corrupts the judicial process but also had the potential to
present false information to a sentencing judge. Any actions that subvert the
adversarial process call for a sanction stronger than a stayed suspension from the
practice of law.
       {¶ 28} Based on his misdemeanor conviction for obstruction, I would
suspend Martinez from the practice of law for one year. See Disciplinary Counsel
v. Klaas, 91 Ohio St.3d 86, 742 N.E.2d 612 (2001) (imposing a one-year
suspension, with six months stayed, on an attorney who alerted a former client to
an imminent drug raid and who was subsequently convicted of attempted
obstruction of justice); Disciplinary Counsel v. Smakula, 39 Ohio St.3d 143, 529




                                           8
                                January Term, 2016




N.E.2d 1376 (1988) (suspending an attorney for one year for his participation in a
ticket-fixing operation that resulted in his conviction for misdemeanor offenses).
       {¶ 29} Accordingly, I respectfully dissent from imposing a stayed
suspension based on the facts presented here.
       O’CONNOR, C.J., and FRENCH, J., concur in the foregoing opinion.
                               _________________
       Scott J. Drexel, Disciplinary Counsel, and Joseph M. Caligiuri, Chief
Assistant Disciplinary Counsel, for relator.
       Kegler, Brown, Hill & Ritter, L.P.A., Geoffrey Stern, and Jason Beehler,
for respondent.
                               _________________




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