[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Mahoning Cty. Bar Assn. v. McNally, Slip Opinion No. 2018-Ohio-3719.]




                                        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. 2018-OHIO-3719
             MAHONING COUNTY BAR ASSOCIATION v. MCNALLY.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
    may be cited as Mahoning Cty. Bar Assn. v. McNally, Slip Opinion No.
                                   2018-Ohio-3719.]
Attorneys—Misconduct—Misdemeanor convictions involving dishonesty—One-
        year license suspension conditionally and partially stayed.
 (No. 2017-1743—Submitted January 24, 2018—Decided September 18, 2018.)
   ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
                                 Court, No. 2017-009.
                             _______________________
        Per Curiam.
        {¶ 1} Respondent, John A. McNally IV, of Youngstown, Ohio, Attorney
Registration No. 0067328, was admitted to the practice of law in Ohio in 1996.
        {¶ 2} In a complaint certified to the board on February 14, 2017, relator,
Mahoning County Bar Association, alleged that McNally committed multiple
ethical violations while serving as a Mahoning County Commissioner in 2006 and
                                 SUPREME COURT OF OHIO




2007. The complaint focused on actions McNally took to oppose a property
acquisition that had been approved by his fellow commissioners. McNally pleaded
guilty to four misdemeanor charges: one count of attempted unlawful use of a
telecommunications device, one count of attempted disclosure of confidential
information acquired in the course of public duties, and two counts of making false
statements in an official proceeding.
        {¶ 3} The parties submitted stipulations of fact, misconduct, and
aggravating and mitigating factors and sought to dismiss six of the eight violations
alleged in the complaint. The matter proceeded to a hearing before a panel of the
Board of Professional Conduct. The panel adopted the parties’ stipulations of fact
and agreed that McNally’s conduct violated former DR 1-102(A)(4) (prohibiting a
lawyer from engaging in conduct involving dishonesty, fraud, deceit, or
misrepresentation) and Prof.Cond.R. 8.4(b) (prohibiting a lawyer from committing
an illegal act that reflects adversely on the lawyer’s honesty or trustworthiness) and
unanimously dismissed the remaining allegations of the complaint.1 Based in part
on the panel’s findings that McNally did not in fact disclose confidential
information and that his false testimony did not pertain to a material matter in the
underlying lawsuit, the panel recommended that he be publicly reprimanded for his
misconduct. The board adopted the panel’s findings of fact, conclusions of law,
and recommended sanction, and no objections have been filed.
        {¶ 4} We agree that McNally’s conduct violated DR 1-102(A)(4) and
Prof.Cond.R. 8.4(b). But for the reasons that follow, we believe that McNally’s
conduct warrants a greater sanction. We therefore suspend McNally from the
practice of law for one year with six months of the suspension stayed on the
condition that he engage in no further misconduct.


1. Because respondent’s misconduct occurred both before and after the adoption of the Rules of
Professional Conduct on February 1, 2007, relator charged respondent under the applicable rules of
both the former Code of Professional Responsibility and the current Rules of Professional Conduct.




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                                January Term, 2018




                                    Misconduct
       {¶ 5} McNally was elected to the three-member Mahoning County Board
of Commissioners in 2005. At that time, the Mahoning County Department of Job
and Family Services (“JFS”) had been leasing offices from the Ohio Valley Mall
Company (“Ohio Valley”) for approximately 18 years.                  Although the
commissioners had begun to discuss moving the agency when the lease expired and
became a month-to-month tenancy in 1998, they did not take any action until they
sought to purchase the Oakhill Renaissance Center (“Oakhill”) from the Southside
Community Development Corporation (“SCDC”) in 2006.
       {¶ 6} The commissioners had declined SCDC’s offer to donate Oakhill to
the county in 2004. But in May 2006, SCDC filed for bankruptcy, and the
bankruptcy trustee offered the property for sale.      Over McNally’s dissent, a
majority of the commissioners authorized the county to assume a $430,000 debt to
the Ohio Department of Development that was related to the Oakhill facility and
later authorized county officials to make an offer to purchase Oakhill. The trustee
sent letters to potential bidders, including the Cafaro Company—the parent
company of Ohio Valley—stating that additional bids would be accepted until July
7, 2006. On that date, the county administrator made a second offer to purchase
Oakhill for $75,000 and assume all debts connected with building. Three days later,
the trustee sought the bankruptcy court’s approval of the county’s second offer.
       {¶ 7} Believing that the majority of the commissioners and the county
administrator had failed to perform sufficient due diligence and exceeded their legal
authority in offering to purchase Oakhill, the county treasurer, the county auditor,
and McNally filed objections to the proposed purchase in SCDC’s bankruptcy case.
But before doing so, McNally faxed a copy of the county’s offer to counsel for the
Cafaro Company. On July 27, 2006, the bankruptcy court authorized the trustee to
sell the Oakhill property to the county over the objections. The following day, the




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majority of the commissioners voted to ratify the purchase over McNally’s
objections, paying $75,000 and assuming nearly $900,000 in liens and debt.
       {¶ 8} In August 2006, Ohio Valley filed two lawsuits—a taxpayer action
seeking to rescind the county’s purchase of Oakhill and a breach-of-contract action
seeking more than $1,000,000 in damages for the county’s failure to maintain the
JFS premises in accordance with the terms of their lease. The court ruled against
Ohio Valley in the taxpayer action and allowed the county to proceed with the
Oakhill purchase. The county later settled Ohio Valley’s breach-of-contract claim
for $913,590.
       {¶ 9} In spring 2008, the Youngstown Vindicator began to run articles
suggesting that the county auditor, the county treasurer, and McNally had engaged
in unethical conduct while opposing the county’s acquisition of Oakhill. The
following November, the Mahoning County Court of Common Pleas appointed a
special prosecutor to oversee an ongoing investigation of the acquisition. In July
2010, the county auditor, the county treasurer, McNally, and others were indicted
on multiple criminal charges, but the indictment against McNally was later
dismissed without prejudice.
       {¶ 10} In May 2014, McNally and others were indicted in Cuyahoga
County on 73 counts, including tampering with records, perjury, money laundering,
telecommunications fraud, and unlawful influence of a public official. In February
2016, McNally pleaded guilty to four misdemeanors. The remaining counts of the
indictment pertaining to him were dismissed.
       {¶ 11} Two of the charges in McNally’s plea—attempted unlawful use of a
telecommunications device and attempted disclosure of confidential information
acquired in the course of a public official’s duties—related to his faxing a copy of
the county’s July 7, 2006 Oakhill purchase offer to counsel for the Cafaro
Company, which opposed the county’s acquisition of Oakhill. The two remaining
counts of making false statements in an official proceeding arose from McNally’s




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false deposition testimony in the taxpayer action. McNally falsely testified that he
had not received any assistance in drafting a letter that he had sent to the director
of JFS, when, in fact, some of the information in the letter had come from material
that he had received from the Cafaro Company. He also denied that he had been
aware of the taxpayer action before it was filed—even though he had received an
advance copy of the complaint from one of Cafaro’s attorneys.
       {¶ 12} The Cuyahoga County Court of Common Pleas sentenced McNally
to one year of community control and ordered him to perform 20 hours of
community service, pay a fine of $3,500 and court costs of $3,098.58, and place his
law license on inactive status for the duration of his community control. McNally
complied with the terms of his sentence, and the parties have stipulated that his
community control has been terminated. His bar status is now active.
       {¶ 13} The parties agreed and the board has found that McNally’s conduct
involved dishonesty, fraud, deceit, or misrepresentation in violation of DR 1-
102(A)(4) and constituted illegal acts that adversely reflected on his honesty or
trustworthiness in violation of Prof.Cond.R. 8.4(b).
       {¶ 14} We adopt these findings of fact and misconduct.
                                     Sanction
       {¶ 15} When imposing sanctions for attorney misconduct, we consider all
relevant factors, including the ethical duties that the lawyer violated, aggravating
and mitigating factors, and the sanctions imposed in similar cases. See Gov.Bar R.
V(13)(A).
       {¶ 16} As aggravating factors, the parties stipulated and the board found
that McNally had pleaded guilty to multiple offenses, see Gov.Bar R. V(13)(B)(4),
though the board noted that they arose out of the same series of events. In addition
to adopting the parties’ agreed mitigating factors—including the absence of a prior
disciplinary record, the absence of a dishonest or selfish motive, full and free
disclosure to the board based on McNally’s self-reporting of his misdemeanor




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convictions to relator, evidence of his good character and reputation, and the
imposition of other penalties or sanctions in his criminal case—the board also noted
McNally’s significant community involvement and commitment to public service.
See Gov.Bar R. V(13)(C)(1), (2), (4), (5), and (6).
       {¶ 17} The board recognized that conduct involving dishonesty, fraud,
deceit, or misrepresentation typically compels an actual suspension from the
practice of law. See, e.g., Disciplinary Counsel v. Rohrer, 124 Ohio St.3d 65, 2009-
Ohio-5930, 919 N.E.2d 180, ¶ 41.
       {¶ 18} Nonetheless, the board recommended that McNally be publicly
reprimanded for his misconduct in light of the significant mitigating factors present
in this case and its determination that the uncontroverted evidence adduced at the
hearing established that (1) McNally’s faxed communication “was not an improper
disclosure of confidential information” because the terms and conditions of the
offer had been publicly disclosed in the bankruptcy proceeding and a local business
publication and (2) “the false testimony provided in deposition [sic] did not pertain
to a material matter in the underlying lawsuit.” Regardless, the judgment entry of
McNally’s convictions conclusively establishes his guilt with respect to those
offenses. See Disciplinary Counsel v. Forbes, 122 Ohio St.3d 171, 2009-Ohio-
2623, 909 N.E.2d 629, ¶ 24; accord Disciplinary Counsel v. McAuliffe, 121 Ohio
St.3d 315, 2009-Ohio-1151, 903 N.E.2d 1209, ¶ 23. Once McNally entered his
guilty plea, the factual basis for those charges was established and indisputable for
purposes of this disciplinary proceeding. Those facts cannot be explained away by
the parties or the board. See Forbes at ¶ 19; Cincinnati Bar Assn. v. Powers, 119
Ohio St.3d 473, 2008-Ohio-4785, 895 N.E.2d 172, ¶ 22.
       {¶ 19} The panel described McNally as “contrite, candid and truthful” and
also noted that his fax transmission had been “made premised upon a sincere belief
in the lawfulness of the act.” In addition, the panel noted that McNally’s deposition
testimony occurred in a “highly charged atmosphere,” which the parties described




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                                January Term, 2018




as a “political circus” with a “ten-year tortured history.” The board further
suggested that McNally’s false testimony should be judged less harshly because it
occurred during a cross-examination conducted by an assistant county prosecuting
attorney who had served as McNally’s own counsel in a separate but related
lawsuit. And the parties agreed that members of the prosecuting attorney’s office
had approached a local newspaper with allegations that McNally had engaged in
unethical conduct during the Oakhill acquisition.
       {¶ 20} In support of the recommended sanction, the board cited three cases
in which we publicly reprimanded public officials who had engaged in conduct that
adversely reflected on their fitness to practice law by failing to make certain
statutorily mandated financial disclosures. See Disciplinary Counsel v. Costabile,
143 Ohio St.3d 331, 2015-Ohio-2082, 37 N.E.3d 1197; Disciplinary Counsel v.
Gwinn, 138 Ohio St.3d 167, 2014-Ohio-101, 4 N.E.3d 1039; and Disciplinary
Counsel v. Taft, 112 Ohio St.3d 155, 2006-Ohio-6525, 858 N.E.2d 414. But none
of those attorneys was found to have violated DR 1-102(A)(4) or Prof.Cond.R.
8.4(b). Nor did they attempt to diminish the seriousness of their conduct by
submitting stipulations that challenge the factual foundation of their criminal
convictions, as McNally has.
       {¶ 21} In Toledo Bar Assn. v. DeMarco, 144 Ohio St.3d 248, 2015-Ohio-
4549, 41 N.E.3d 1237, we suspended an attorney for one year with six months of
the suspension stayed on conditions for making a series of material
misrepresentations to a court. While that attorney had acted with a dishonest
motive and initially denied making false statements, like McNally he had no prior
discipline, ultimately demonstrated a cooperative attitude toward the disciplinary
proceedings, and provided letters from judges and attorneys attesting to his good
character and reputation. Id. at ¶ 9-10.
       {¶ 22} Here, McNally pleaded guilty to and has been convicted of an
attempt to disseminate through unlawful use of a telecommunications device




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                              SUPREME COURT OF OHIO




confidential information obtained in the course and scope of his role as an elected
official. He has also pleaded guilty to and been convicted of giving false testimony
in an official proceeding when the truth would have raised additional questions
about his association with the Cafaro Company and, consequently, his motive for
opposing the Oakhill acquisition.       Thus, his false testimony was material.
Moreover, McNally has stipulated that his conduct was dishonest, illegal, and
adversely reflected on his trustworthiness. Given the seriousness of McNally’s
misconduct, the applicable aggravating and mitigating factors, and our precedent,
we believe that a one-year suspension from the practice of law with six months
stayed on one condition is the appropriate sanction in this case.
          {¶ 23} Accordingly, John A. McNally IV is suspended from the practice of
law in Ohio for one year, with six months of the suspension stayed on the condition
that he engage in no further misconduct. If McNally fails to comply with the
condition of the stay, the stay will be lifted and he will serve the full one-year
suspension. Costs are taxed to McNally.
                                                             Judgment accordingly.
          O’CONNOR, C.J., and O’DONNELL, KENNEDY, FRENCH, and DEWINE, JJ.,
concur.
          FISCHER and DEGENARO, JJ., not participating.
                                _________________
          Bonezzi Switzer Polito & Hupp Co., L.P.A., and David C. Comstock Jr.,
for relator.
          Maro & Schoenike Co. and Lynn A. Maro, for respondent.
                                _________________




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