[Cite as Disciplinary Counsel v. Anthony, 138 Ohio St.3d 129, 2013-Ohio-5502.]




                       DISCIPLINARY COUNSEL v. ANTHONY.
          [Cite as Disciplinary Counsel v. Anthony, 138 Ohio St.3d 129,
                                   2013-Ohio-5502.]
Attorney misconduct—Theft conviction—Conduct involving dishonesty, fraud,
        deceit, or misrepresentation—Indefinite suspension.
   (No. 2013-0226—Submitted April 10, 2013—Decided December 24, 2013.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                    Discipline of the Supreme Court, No. 11-086.
                                ____________________
                               SYLLABUS OF THE COURT
An attorney’s suspension for failure to comply with attorney-registration
        requirements is prior discipline and therefore is an aggravating factor
        pursuant to BCGD Proc.Reg. 10(B)(1)(a).
                                ____________________
        Per Curiam.
        {¶ 1} Respondent, Mark Allan Anthony of Dayton, Ohio, Attorney
Registration No. 0056048, was admitted to the practice of law in Ohio in 1991. In
2005, we suspended Anthony’s license for failing to register, and in 2009, we
suspended him again for failing to comply with continuing-legal-education
requirements. In 2011, we imposed an interim felony suspension based on his
theft conviction for embezzling money from his employer, St. Francis de Sales
Catholic Church, in Lebanon, Ohio. In re Anthony, 128 Ohio St.3d 1490, 2011-
Ohio-2221, 946 N.E.2d 760. All of these suspensions remain in effect.
        {¶ 2} Based on Anthony’s felony conviction, relator, disciplinary
counsel, charged him with violations of the Code of Professional Responsibility
and the Rules of Professional Conduct. A three-member panel of the Board of
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Commissioners on Grievances and Discipline conducted a hearing, in which the
parties submitted stipulated facts and misconduct and jointly recommended a
sanction of an indefinite suspension. The parties, however, could not agree on
whether restitution should be a condition of Anthony’s possible reinstatement to
the practice of law.      The panel accepted the parties’ stipulated facts and
misconduct and recommended that Anthony be indefinitely suspended and that
reinstatement be conditioned on the successful completion of a treatment plan for
Anthony’s gambling addiction and the establishment of a plan to pay restitution.
The board adopted the panel’s findings of fact, conclusions of law, and
recommended sanction, and neither party has objected to the board’s report.
       {¶ 3} Upon review of the record, we accept the board’s findings of fact
and misconduct and impose an indefinite suspension subject to payment of
restitution as a condition of reinstatement.
                                    Misconduct
       {¶ 4} In 2004, Anthony voluntarily ceased the active practice of law and
focused on his employment as the business manager at St. Francis de Sales
Catholic Church. Over a period of almost four years, Anthony embezzled church
funds to pay for personal expenses and to maintain a gambling addiction.
Specifically, Anthony wrote at least 60 checks to himself or to cash from parish
funds, withdrew cash from various church accounts, and improperly used the
parish credit card more than 60 times. In February 2007, Anthony pled guilty to
grand theft, and the Warren County Court of Common Pleas sentenced him to a
12-month prison term and ordered him to pay restitution to St. Francis. After
Anthony had served four months in prison, the court modified his sentence to five
years of community control.
       {¶ 5} The record here does not clearly set forth how much money
Anthony took from St. Francis. The parties stipulated, and the board found, that
Anthony “misappropriated approximately $118,000 in parish funds,” and the trial




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court ordered that he pay $118,891 in restitution. However, the parties also
stipulated that Gallagher Bassett Services, Inc., a firm hired by the Archdiocese of
Cincinnati to administer its insurance claims, calculated St. Francis’s total loss at
$127,649.15. When a panel member asked about this discrepancy at the hearing,
Anthony stated that he had “no idea how they came to their numbers,” and relator
explained that the prosecutor used the $118,891 figure, but the archdiocese and
St. Francis concluded that the total loss was more than that amount based on the
Gallagher Bassett findings.
         {¶ 6} We agree with the board’s conclusion that Anthony violated DR 1-
102(A)(3) (prohibiting a lawyer from engaging in illegal conduct involving moral
turpitude), 1-102(A)(4) (prohibiting a lawyer from engaging in conduct involving
dishonesty, fraud, deceit, or misrepresentation), and 1-102(A)(6) (prohibiting a
lawyer from engaging in conduct that adversely reflects on the lawyer’s fitness to
practice law).1
                           Anthony’s criminal restitution order
         {¶ 7} At the time of Anthony’s thefts, the Archdiocese of Cincinnati
maintained an employee-dishonesty insurance policy with Lloyd’s of London.
The terms of that policy specified that the archdiocese was responsible for the
first $100,000 of any employee-dishonesty claim, and the insurer was obligated
for losses over that amount. The archdiocese created a self-insured retention
(“SIR”) fund and required its parishes and other entities to pay a predetermined

1. In its report, the panel stated its intention to dismiss the alleged violation in count two of
relator’s complaint. Gov.Bar R. V(6)(G), which permits a unanimous panel of the board to order
the dismissal of a count without referring it to the board or this court for review, requires the panel
to provide notice to counsel of record and other interested parties. The record in this case does not
establish that the panel complied with the notice requirements of that rule. Instead, the panel
certified its findings of fact and recommendations to the board in accordance with Gov.Bar R.
V(6)(H) and (I). Because the panel did not order dismissal and provide the notices required by
Gov.Bar R. V(6)(G), we treat the purported dismissal as a recommendation that count two be
dismissed. See, e.g., In re Complaint Against Harper, 77 Ohio St.3d 211, 216, 673 N.E.2d 1253
(1996); Disciplinary Counsel v. Doellman, 127 Ohio St.3d 411, 2010-Ohio-5990, 940 N.E.2d 928,
¶ 31-33. We accept that recommendation and dismiss count two.




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amount to cover any claimed losses under the policy. In 2007, the SIR fund of the
archdiocese issued payment of $100,000 to St. Francis, and in 2008, Lloyd’s of
London issued its check for $27,149.15 to St. Francis, representing the remainder
of the claimed loss less a $500 deductible.
       {¶ 8} In 2011, upon learning that St. Francis had been made whole,
Anthony moved the trial court to modify its restitution order, arguing that Ohio
law prohibited restitution to a victim in an amount in excess of the victim’s actual
economic loss. The trial court agreed and terminated Anthony’s community-
control supervision. Up to that time, Anthony had paid $13,425 in restitution—
$10,000 to St. Francis and $3,425 to Lloyd’s of London. Since then, Anthony has
not paid any restitution.
                                       Sanction
       {¶ 9} When imposing sanctions for attorney misconduct, we consider
several factors, including the ethical duties violated, the actual injury caused, the
existence of any aggravating and mitigating factors listed in BCGD Proc.Reg.
10(B), 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;
Disciplinary Counsel v. Broeren, 115 Ohio St.3d 473, 2007-Ohio-5251, 875
N.E.2d 935, ¶ 21.           In this case, relator, the panel, and the board have
recommended an indefinite suspension; upon consideration of the relevant factors,
we adopt that recommendation, but condition reinstatement on payment of the
loss and impose other conditions.
                       1. Aggravating and mitigating factors
       {¶ 10} The board determined that Anthony’s prior attorney-registration
suspension was an aggravating factor, but it also considered as a mitigating factor
the fact that Anthony had no prior discipline except for that suspension. We have
not always been consistent in treating attorney-registration suspensions as
aggravating factors. Compare Cleveland Metro. Bar Assn. v. Kelly, 132 Ohio




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St.3d 292, 2012-Ohio-2715, 971 N.E.2d 922, ¶ 15 (“The only mitigating factor is
that, except for his current attorney-registration suspension, [respondent] does not
have a prior disciplinary record”) with Disciplinary Counsel v. Lape, 130 Ohio
St.3d 273, 2011-Ohio-5757, 957 N.E.2d 772, ¶ 11 (citing cases holding that an
attorney-registration suspension is an aggravating factor).
       {¶ 11} An attorney’s suspension for failure to comply with attorney-
registration requirements is prior discipline and therefore is an aggravating factor
pursuant to BCGD Proc.Reg. 10(B)(1)(a). A registration suspension may not
weigh heavily against a respondent when the prior discipline consists only of a
registration suspension.    In this case, although respondent has also been
sanctioned for failure to comply with continuing-legal-education (“CLE”)
requirements, pursuant to Gov.Bar R. X(5)(C), a sanction imposed for CLE
noncompliance “shall not be considered in the imposition of a sanction under
Gov.Bar R. V, Section 8.”
       {¶ 12} In addition, other aggravating factors exist in this case:         (1)
dishonest or selfish motive, (2) pattern of misconduct, (3) multiple offenses, (4)
harm to the victims of the misconduct, and (5) failure to make restitution. See
BCGD Proc.Reg. 10(B)(1)(b), (c), (d), (h), and (i). However, we reject the
board’s conclusion that Anthony submitted false evidence during the disciplinary
process, because the board fails to identify the false evidence and the record does
not support the board’s conclusion.
       {¶ 13} In mitigation, the board found that Anthony disclosed his conduct
to the disciplinary board, cooperated in the disciplinary investigation, and had
already been punished for his conduct by serving a prison sentence. See BCGD
Proc.Reg. 10(B)(2)(d) and (f). At the hearing, relator argued that Anthony’s
gambling addiction could not be considered as a mitigating factor because
Anthony had not yet demonstrated a sustained period of successful treatment, as
required by BCGD Proc.Reg. 10(B)(2)(g)(iii). Anthony signed a contract with the



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Ohio Lawyers Assistance Program (“OLAP”) only three months before the panel
hearing and therefore did not establish that his addiction qualified as a mitigating
factor under BCGD Proc.Reg. 10(B)(2)(g)(iii), which requires a sustained period
of successful treatment. We nonetheless agree with the board that Anthony’s
diagnosed    pathological     gambling     disorder,    his   OLAP       contract,   his
commencement of treatment with a clinical psychologist, and his involvement in
Gamblers Anonymous should be accorded some mitigating effect.
                               2. Applicable precedent
        {¶ 14} To support its recommended sanction, relator cited three cases in
which we indefinitely suspended attorneys for misappropriating large amounts of
non-client funds, namely, Disciplinary Counsel v. Muntean, 127 Ohio St.3d 427,
2010-Ohio-6133, 940 N.E.2d 942 (attorney indefinitely suspended for
misappropriating nearly $50,000 from a county board while serving as the
treasurer), Disciplinary Counsel v. Kelly, 121 Ohio St.3d 39, 2009-Ohio-317, 901
N.E.2d 798 (attorney indefinitely suspended for embezzling over $40,000 from a
county humane society while serving as its volunteer treasurer), and Akron Bar
Assn. v. Smithern, 125 Ohio St.3d 72, 2010-Ohio-652, 926 N.E.2d 274 (attorney
indefinitely suspended for stealing over $100,000 from her employer law firm).
        {¶ 15} In these cases, we were influenced by the relevant mitigating
factors—including restitution. In Muntean, we noted that the attorney had made
complete restitution as a condition of his criminal sentence. Id. at ¶ 5, 12. In
Kelly, we conditioned the attorney’s reinstatement on full restitution. Id. at ¶ 20.
And in Smithern, we conditioned the attorney’s reinstatement on compliance with
a settlement agreement between the attorney and the law firm’s insurer requiring
the attorney to make full restitution to the insurer. Id. at ¶ 10, 16.
        {¶ 16} In addition, our recent opinion in Stark Cty. Bar Assn. v. Williams,
137 Ohio St.3d 112, 2013-Ohio-4006, 998 N.E.2d 427, while not controlling, is
useful in determining the appropriate sanction. In Williams, we permanently




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disbarred an attorney who, like Anthony, had committed theft offenses for
stealing substantial amounts of money in order to maintain a gambling addiction
and who, like Anthony, had failed to make restitution to her victims. However,
Williams showed little probability of recovery, and she continued gambling
during the pendency of her disciplinary proceedings, which violated the terms of
her community control and resulted in her serving the eight-and-a-half-year prison
sentence. Id. at ¶ 1, 23, 27. In contrast, the trial court in Anthony’s criminal case
successfully terminated him from community control in 2011.               Moreover,
Anthony maintains that he has not gambled since 2007, and he has demonstrated
that he has been involved with Gamblers Anonymous since 2006. Thus, this case
is factually distinguishable from Williams.
                                   3. Conclusion
       {¶ 17} Anthony violated a private trust with his employer and caused
great harm to St. Francis de Sales Catholic Church. In addition, he has been
sanctioned for failing to register and failing to comply with CLE requirements,
and all of those sanctions remain in effect. We recognize that he also has served a
prison sentence, has been actively involved in Gamblers Anonymous, recently
signed a contract with OLAP, fully cooperated during the disciplinary process,
and has exhibited remorse. But he has paid only $13,425 in restitution, and the
SIR fund is owed $90,000 and the insurer is owed almost $24,000. On this
record, the board recommends that we indefinitely suspend Anthony and place
conditions on any potential reinstatement.
       {¶ 18} Having reviewed Anthony’s ethical violations and the aggravating
and mitigating factors, and having considered the sanctions imposed for
comparable misconduct, we accept the board’s recommended sanction. However,
we modify its recommended conditions for reinstatement. As a condition of
reinstatement in this case, Anthony is ordered to make restitution of $127,649.15,
consisting of $100,000 to the SIR fund, $27,149.15 to Lloyd’s of London, and the



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$500 deductible payable to St. Francis de Sales Catholic Church, less amounts he
has paid to date.
       {¶ 19} Accordingly, Mark Allen Anthony is hereby indefinitely
suspended from the practice of law in Ohio.       To petition for reinstatement,
Anthony must show (1) successful completion of an OLAP-approved treatment
plan for gambling addiction and (2) the payment of restitution in the amount of
$127,649.15. Costs are taxed to Anthony.
                                                           Judgment accordingly.
       PFEIFER, O’DONNELL, KENNEDY, and O’NEILL, JJ., concur.
       O’CONNOR, C.J., and LANZINGER and FRENCH, JJ., dissent.
                            ____________________
       LANZINGER, J., dissenting.
       {¶ 20} I respectfully dissent and would hold that Anthony should be
permanently disbarred, to be consistent with our recent disbarment of the attorney
in Stark Cty. Bar Assn. v. Williams, 137 Ohio St.3d 112, 2013-Ohio-4006, 998
N.E.2d 427.
       {¶ 21} The majority suggests that this case is “factually distinguishable,”
majority opinion at ¶ 16, from a disciplinary case in which a woman was
disbarred even though she claimed that she had an uncontrollable gambling
problem and presented the testimony of three professionals who opined that she
could successfully return to the practice of law after treatment. The majority
emphasizes that Williams had violated terms of her community control by
continuing to gamble, apparently taking as fact Anthony’s claim that he has not
gambled since 2007. And while it is true that Anthony’s period of community
control was terminated, this termination occurred because he convinced the court
that he should not be ordered to pay restitution covered through the church’s
insurance.




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        {¶ 22} Williams is instructive rather than distinguishable, setting forth the
appropriate standard for discipline in these cases:


               “We have consistently recognized that the presumptive
        disciplinary sanction for misappropriation of client funds is
        disbarment.” Disciplinary Counsel v. Longino, 128 Ohio St.3d
        426, 2011-Ohio-1524, 945 N.E.2d 1040, ¶ 39; see also
        Disciplinary Counsel v. Wickerham, 132 Ohio St.3d 205, 2012-
        Ohio-2580, 970 N.E.2d 932, ¶ 16 (“The presumptive disciplinary
        sanction for a pattern of misconduct involving dishonesty,
        misappropriation, and lack of cooperation in disciplinary
        proceedings is disbarment”).      In addition, disbarment is “an
        appropriate sanction when an attorney is convicted of theft
        offenses.” Disciplinary Counsel v. Brickley, 131 Ohio St.3d 228,
        2012-Ohio-872, 963 N.E.2d 818, ¶ 7.


Id. at ¶ 24.
        {¶ 23} The board had found four mitigating factors in Williams: the
absence of a prior disciplinary record, good character or reputation, imposition of
other penalties, and Williams’s acknowledgment of the wrongfulness of her
actions. But we unanimously rejected the board’s recommendation of indefinite
suspension, stating:


               “ ‘The continuing public confidence in the judicial system
        and the bar requires that the strictest discipline be imposed in
        misappropriation cases.’ ” Disciplinary Counsel v. Kelly, 121 Ohio
        St.3d 39, 2009-Ohio-317, 901 N.E.2d 798, ¶ 17, quoting Cleveland
        Bar Assn. v. Belock, 82 Ohio St.3d 98, 100, 694 N.E.2d 897



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        (1998).   For this reason, disbarment is the “starting point for
        determining the required sanction.” Id. Contrary to the board’s
        recommendation, none of the mitigating factors here warrant
        straying from this starting point.


Id. at ¶ 29.
        {¶ 24}    Thus, we made a strong statement in Williams, and we explained
to attorneys and the public at large what requires the “strictest discipline.” This is
not a case in which to back away from that pronouncement. For over four years,
Anthony embezzled more than $100,000 from the church at which he was
employed. I do not believe that the mitigating factors warrant a departure from
the sanction of disbarment.
        O’CONNOR, C.J., and FRENCH, J., concur in the foregoing opinion.
                              ____________________
        Karen H. Osmond, Assistant Disciplinary Counsel, for relator.
        James T. Ambrose, for respondent.
                           ________________________




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