[Cite as Disciplinary Counsel v. O’Malley, 126 Ohio St.3d 443, 2010-Ohio-3802.]




                      DISCIPLINARY COUNSEL v. O’MALLEY.
                     [Cite as Disciplinary Counsel v. O’Malley,
                        126 Ohio St.3d 443, 2010-Ohio-3802.]
Attorneys at law — Misconduct — Conduct adversely reflecting on fitness to
        practice — Federal felony conviction — Two-year suspension.
  (No. 2009-1444 — Submitted March 31, 2010 — Decided August 24, 2010.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                    Discipline of the Supreme Court, No. 09-001.
                                 __________________
        Per Curiam.
        {¶ 1} Respondent, Patrick Joseph O’Malley of Chagrin Falls, Ohio,
Attorney Registration No. 0058659, was admitted to the practice of law in Ohio in
1992. On December 4, 2008, following his conviction and sentencing on a single
count of transportation and importation of obscene matters, we imposed an
interim felony suspension of respondent’s license pursuant to Gov.Bar R.
V(5)(A)(4). In re O’Malley, 120 Ohio St.3d 1426, 2008-Ohio-6274, 897 N.E.2d
658. Thereafter, relator, Disciplinary Counsel, filed a complaint charging
respondent with a single violation of DR 1-102(A)(6) (prohibiting conduct that
adversely reflects on a lawyer’s fitness to practice law). In September 2009, we
rejected the report of the Board of Commissioners on Grievances and Discipline
recommending that we adopt the parties’ consent-to-discipline agreement and
impose a 12-month suspension, with credit for the interim felony suspension. 122
Ohio St.3d 1525, 2009-Ohio-4866, 913 N.E.2d 460. Based upon his conduct in
downloading obscene photographs and stories from the Internet to personal
computers in his home, the Board of Commissioners on Grievances and
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Discipline again recommends that we suspend respondent from practice for 12
months and credit him for time served under the interim suspension of his license.
       {¶ 2} We accept the board’s factual findings and its conclusion that
respondent’s conduct violated the ethical standards incumbent upon Ohio lawyers.
We conclude, however, that the appropriate sanction for respondent’s misconduct
is a two-year suspension from the practice of law in Ohio, with credit for time
served under the interim suspension; however, respondent may not apply for
reinstatement until he has completed his term of federal supervised release.
                                    Misconduct
       {¶ 3} Respondent became the recorder of Cuyahoga County in 1997 and
retained the office through elections in 1998, 2000, and 2004. After winning the
primary race for the recorder’s office in 2008, he agreed to plead guilty to a single
count of transportation and importation of obscene matters, which alleged that he
did “knowingly use an interactive computer service for the carriage in interstate
and foreign commerce of numerous obscene, lewd, lascivious, and filthy pictures,
writings and other matters of indecent character,” in violation of Section 1462(a),
Title 18, U.S.Code. The information, filed in the United States District Court for
the Northern District of Ohio, Eastern Division, two days after respondent
executed the plea agreement, alleged that the conduct giving rise to the charge
occurred from February 18, 1998, through November 16, 2004.
       {¶ 4} On October 3, 2008, respondent was sentenced to 15 months in
prison and three years of supervised release. He also resigned his elected office.
The parties have stipulated to respondent’s conviction and sentence and have
agreed that his conduct violated DR 1-102(A)(6). They have further stipulated
that the appropriate sanction for this misconduct is a 12-month suspension from
the practice of law with credit for the time served under the interim felony
suspension.




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       {¶ 5} After we rejected the parties’ consent-to-discipline agreement
proposing the same sanction, a panel of the board conducted a hearing and heard
testimony from respondent and one character witness. The panel also considered
the parties’ stipulated exhibits, including the information, plea agreement, and
judgment in respondent’s criminal case, as well as 21 letters attesting to
respondent’s good character.
       {¶ 6} In addition to accepting the parties’ stipulations, the board found
that the obscene materials that were the subject of respondent’s criminal
conviction were stored at his home on personal computers that he owned.
Respondent testified that the obscene materials were erotic photographs of adults
and erotic stories that he and his wife had viewed in the privacy of their home.
He claimed that his former wife broke into his home, seized the computers, and
turned them over to the FBI to gain an advantage over him in their then pending
divorce and child-custody litigation.
       {¶ 7} Based upon the agreed stipulations and the testimony presented at
the hearing, the panel and board found by clear and convincing evidence that
respondent had violated DR 1-102(A)(6). We accept the board’s findings of fact
and misconduct.
                                        Sanction
       {¶ 8} When imposing sanctions for attorney misconduct, we consider
relevant factors, including the ethical duties that 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.            In making a final
determination, we also weigh evidence of the aggravating and mitigating factors
listed in Section 10(B) of the Rules and Regulations Governing Procedure on
Complaints and Hearings Before the Board of Commissioners on Grievances and
Discipline (“BCGD Proc.Reg.”). Disciplinary Counsel v. Broeren, 115 Ohio
St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21. We are mindful that the



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disciplinary process is designed not only to protect clients and the public from
attorneys who are unworthy of the trust and confidence essential to the attorney-
client relationship but also to ensure the administration of justice and to maintain
the integrity of the legal profession as a whole. Disciplinary Counsel v. Hunter,
106 Ohio St.3d 418, 2005-Ohio-5411, 835 N.E.2d 707, ¶ 32.
       {¶ 9} Respondent has entered a guilty plea and been convicted of
knowingly using an interactive computer service to transport obscene materials in
interstate or foreign commerce in direct contravention of a federal statute that
carries a maximum sentence of five years in prison, a fine of up to $250,000, and
three years of supervised release. Section 1462(a), Title 18, U.S.Code.
       {¶ 10} No aggravating factors are present. In mitigation, the panel and
board found that respondent has no prior disciplinary record, has fully cooperated
with and made free disclosure in the disciplinary proceedings, has had other
penalties or sanctions imposed upon him, and has not damaged any client with his
misconduct. BCGD Proc.Reg. 10(B)(2)(a), (d), and (f). Respondent produced
convincing evidence of his good character and reputation, including letters from
more than 20 persons, including friends, employees, spiritual leaders, mental-
health professionals, representatives of community organizations, and others who
know him. BCGD Proc.Reg. 10(B)(2)(e). He has expressed genuine remorse for
the harm he caused to his family and to the legal profession and has accepted
responsibility for the consequences of his actions, which include bankruptcy, the
loss of his job, and the loss of his license to practice law. The panel and board
also noted that during his confinement, respondent read 146 books in an effort to
prepare for his life after prison. Based upon these facts, both the panel and the
board expressed their confidence that respondent has been rehabilitated.
       {¶ 11} In support of its recommended sanction of a 12-month suspension
with credit for time served under the interim felony suspension, the board cites
five cases in which we imposed one-year suspensions from the practice of law.




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Although each of those cases involved a respondent convicted of a single federal
offense, the offenses were all of a financial rather than a sexual nature, and the
longest prison term imposed in those cases was four months. See Dayton Bar
Assn. v. Bart (1997), 80 Ohio St.3d 538, 687 N.E.2d 681 (conviction for
conspiracy to commit tax fraud resulting in a fine of $10,000 and three years of
probation); Disciplinary Counsel v. Petroff (1999), 85 Ohio St.3d 396, 709
N.E.2d 111 (conviction for attempting to evade federal income taxes resulting in a
sentence of four months’ home detention, two years’ probation, and an order to
pay restitution); Disciplinary Counsel v. Miller (1997), 79 Ohio St.3d 115, 679
N.E.2d 1098 (conviction for aiding and abetting the filing of a false tax return
resulting in a sentence of two years of probation, 400 hours of community service,
and a donation of $3,000 to a community-service project); Disciplinary Counsel
v. Lash (1993), 68 Ohio St.3d 12, 623 N.E.2d 28 (conviction for bank fraud
resulting in a sentence of one year’s probation, 100 hours of community service,
and a $1,000 fine); Dayton Bar Assn. v. Seall (1998), 81 Ohio St.3d 280, 690
N.E.2d 1271 (conviction for conspiracy to commit tax fraud resulting in a four-
month prison term followed by two years of supervised release).
       {¶ 12} At the other end of the spectrum, in Disciplinary Counsel v.
Ridenbaugh, 122 Ohio St.3d 583, 2009-Ohio-4091, 913 N.E.2d 443, we
indefinitely suspended an attorney’s license to practice law with credit for time
served under an interim felony suspension for misconduct involving acts of
voyeurism and use of child pornography. Similarly, we imposed an indefinite
suspension in Columbus Bar Assn. v. Linnen, 111 Ohio St.3d 507, 2006-Ohio-
5480, 857 N.E.2d 539, for an attorney who indecently exposed himself to at least
30 different women while photographing their reactions.
       {¶ 13} At first glance, the misconduct at issue in Ridenbaugh and Linnen
appears to be far more serious than respondent’s importation of obscenity
depicting consenting adults.   We note, however, that Ridenbaugh received a



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criminal sentence of 48 months in prison but served only 56 days before receiving
judicial release and commencing a five-year term of community control. Linnen
received a criminal sentence of 18 months of work release followed by five years
of probation and was fined $3,000. But due to the closure of the work-release
facility, he served only 12 months of his sentence before being released on
probation. Respondent, in contrast, received and served a criminal sentence of 15
months in federal prison after pleading guilty to the transportation and
importation of obscene matters over the Internet.
       {¶ 14} Having reviewed the record, weighed the aggravating and
mitigating factors, and considered the sanctions imposed for comparable conduct,
we conclude that the recommended sanction fails to adequately address the
seriousness of respondent’s conduct. Moreover, permitting respondent to serve as
an officer of this court while he remains on supervised release for violating the
very laws he has been sworn to uphold would undermine the public’s perception
of and confidence in our justice system.       Therefore, due to the severity of
respondent’s crime as measured by the duration of his prison term and subsequent
supervised release, and in light of the mitigating factors cited by the board, the
appropriate sanction for his misconduct falls between the one-year suspensions of
Bart, Petroff, et al., and the indefinite suspensions of Ridenbaugh and Linnen.
       {¶ 15} Accordingly, Patrick Joseph O’Malley is suspended from the
practice of law in Ohio for two years, with credit for the interim felony
suspension commencing on December 4, 2008.           However, as a condition to
reinstatement, respondent must first complete his federal supervised release.
Costs are taxed to respondent.
                                                            Judgment accordingly.
       PFEIFER, O’CONNOR, O’DONNELL, and CUPP, JJ., concur.
       LUNDBERG STRATTON and LANZINGER, JJ., dissent.
       BROWN, C.J., not participating.




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                              __________________
       LUNDBERG STRATTON, J., dissenting.
       {¶ 16} I disagree with the sanction imposed by the majority opinion. I
would accept the board’s recommendation that we suspend respondent from the
practice of law for 12 months and credit him with time served under the interim
suspension. Therefore, I respectfully dissent.
       LANZINGER, J., concurs in the foregoing opinion.
                              __________________
       Jonathan E. Coughlan, Disciplinary Counsel, and Heather L. Hissom,
Assistant Disciplinary Counsel, for relator.
       Koblentz & Koblentz, L.L.C., Richard S. Koblentz, and Bryan L. Penvose,
for respondent.
                            ______________________




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