[Cite as Disciplinary Counsel v. Howard, 123 Ohio St.3d 97, 2009-Ohio-4173.]




                        DISCIPLINARY COUNSEL v. HOWARD.
[Cite as Disciplinary Counsel v. Howard, 123 Ohio St.3d 97, 2009-Ohio-4173.]
Attorneys at law — Misconduct — Felony convictions — Two-year suspension
        with conditions for reinstatement.
    (No. 2009-0407 — Submitted April 8, 2009 — Decided August 25, 2009.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                    Discipline of the Supreme Court, No. 08-012.
                                 __________________
        Per Curiam.
        {¶ 1} Respondent, Lee Howard of Dayton, Ohio, Attorney Registration
No. 0026930, was admitted to the practice of law in Ohio in 1977. On August 30,
2007, we suspended respondent from practice on an interim basis pursuant to
Gov.Bar R. V(5)(A)(4) upon receiving notice that he had been convicted of a
felony. In re Howard, 114 Ohio St.3d 1515, 2007-Ohio-4425, 872 N.E.2d 955.
        {¶ 2} The Board of Commissioners on Grievances and Discipline now
recommends that we suspend respondent’s license to practice for two years, order
conditions for his readmission including a mental-health evaluation, and afford
credit for the interim suspension of his license.                The board made this
recommendation based on findings that respondent had been convicted of two
felonies, both stemming from his part in a standoff with police. We accept the
board’s findings that respondent committed professional misconduct and its
recommendation for a two-year suspension with conditions for readmission.
        {¶ 3} Relator, Disciplinary Counsel, charged respondent with violations
of two Disciplinary Rules of the former Code of Professional Responsibility: DR
1-102(A)(3) (prohibiting a lawyer from engaging in illegal conduct involving
moral turpitude) and 1-102(A)(6) (prohibiting a lawyer from engaging in conduct
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that adversely reflects on the lawyer’s fitness to practice law). A panel of the
board heard the case, made findings of fact and conclusions of law, and
recommended an indefinite suspension with attendant conditions for respondent
to petition for reinstatement and with credit for the interim licensure suspension.
The board adopted the panel’s findings of misconduct, but “based on all the
circumstances surrounding his arrest and conviction,” recommended the two-year
suspension of his license with credit for the interim suspension and conditions for
readmission.
       {¶ 4} Neither party has objected to the board’s report.
                                   Misconduct
       {¶ 5} Respondent pleaded guilty in April 2007 to assault with a deadly
weapon in violation of R.C. 2903.11(A), a felony of the second degree, and to
inducing panic in violation of R.C. 2917.31(A), a felony of the fifth degree. The
convictions followed from incidents beginning on the night of January 19, 2007,
when a Dayton police officer entered the back yard of respondent’s former East
Hudson Avenue residence to investigate what the officer thought could be a stolen
vehicle. The officer’s investigation and respondent’s reaction led to a standoff
lasting several hours.
       {¶ 6} The officer, who had been dispatched in uniform and in a marked
cruiser to identify and recover a stolen car from an address near respondent’s
house, found the car in an alley around 11:00 p.m. While waiting for a tow truck
in that high-crime neighborhood, the officer saw another car parked, apparently in
the grass, almost touching the back of a house that was completely unlit.
Suspecting that that car might too be stolen, the officer fixed his searchlight on
the back of the house and got out of his cruiser to take down the license plate
number and run a check on the vehicle.
       {¶ 7} In the meantime, respondent awoke inside his home to the
searchlight shining in a first-floor window. Looking out, he testified, he did not




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see the officer because of the searchlight shining in his face. Respondent opened
the window and discharged a firearm, intending, he testified, only to frighten
whoever was in his yard. The officer, who never identified himself as the police,
called out, shouting, “Hey Buddy, did you throw something or shoot something at
me?” The officer heard nothing but a low “growl” in response.
       {¶ 8} The officer then circled the house, and upon returning to the back
yard, saw someone at the open window. The officer shined his flashlight in the
window and demanded, “Now are you going to talk to me now or what?” At that
moment, the officer saw a “white arm” reach out with a black handgun. Saying
nothing, respondent fired a shot and quickly closed the window.
       {¶ 9} The situation then escalated. The officer called for backup, and
more officers arrived to secure the area, blocking traffic and warning neighbors to
remain indoors. Officers attempted to communicate with respondent by telephone
and bullhorn, but to no effect. The bullhorn was respondent’s first indication that
the person who had been in his back yard was a police officer.
       {¶ 10} Officers also called in a SWAT team, members of which
discovered a bullet hole in the rear passenger door of the first officer’s cruiser. A
standoff lasting several hours ensued, with respondent refusing to answer the
telephone. When he finally did answer his telephone, he spoke for about an hour
with a hostage negotiator and, according to his testimony, fully realized only then
that the police were on the premises. Respondent refused to leave his house,
despite all demands and assurances. The situation finally ended with the SWAT
officers firing tear gas, which forced respondent out of the house and led to his
apprehension.
       {¶ 11} At his April 2007 sentencing, the Montgomery County Court of
Common Pleas placed respondent under five years of intensive community
supervision, requiring him to (1) undergo “crisis care” assessment and comply
with all recommended treatment, (2) attend a “Victim Impact Panel/Victim of



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Violence” program, (3) obtain verifiable full-time employment, (4) move from his
East Hudson Avenue address, and (5) pay all court costs, a supervision fee of $50,
and restitution of $6,198.95.    The court also ordered the destruction of the
handgun and six hunting guns found during a search of respondent’s residence.
       {¶ 12} But because of respondent’s good behavior, the court modified the
terms of his sentence.      In May 2008, respondent’s intensive community
supervision was reduced to basic probation. And in September of that year, the
court reduced the sanction again to “monitored time supervision.”
       {¶ 13} Respondent did not appeal his convictions and at the panel hearing
did not dispute the charges of misconduct. The panel and board thus found
respondent in violation of DR l-102(A)(3) and (6). We accept these findings of
misconduct.
                                     Sanction
       {¶ 14} In recommending a sanction, the panel and board weighed the
aggravating and mitigating factors listed in BCGD Proc.Reg. 10(B)(1) and (2) and
compared sanctions imposed in similar cases.
       {¶ 15} The panel and board weighed in respondent’s favor that he had
practiced nearly 30 years with no prior discipline.         See BCGD Proc.Reg.
10(B)(2)(a). Respondent had also cooperated during the disciplinary proceedings,
acknowledging his criminal conduct and convictions.         See BCGD Proc.Reg.
10(B)(2)(d). Moreover, because respondent was in the process of paying the price
for his crimes, the panel and board found mitigating the imposition of other fines
and penalties. See BCGD Proc.Reg. 10(B)(2)(f). In addition, the panel and board
accepted letters in support of respondent’s character and reputation that his family
and a retired Dayton police sergeant had written for the presentence investigation.
       {¶ 16} But because respondent had “twice shot a loaded handgun at a
uniformed police officer at close range,” the panel and board found the
aggravating features overwhelming. Both noted from respondent’s testimony that




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“he had been awakened out of a deep sleep by a bright light shining into the
window of his totally darkened house at approximately 11:00 p.m.” and that
because his car had recently been stolen twice, “he believed [that the officer] was
a criminal trespasser attempting to steal his auto.” The panel and board also
acknowledged that “a seven-year police street officer had failed to get control of a
situation which he had ‘caused’ by accessing private property where a car was
legally parked” without first properly identifying himself. The panel and board
nevertheless held respondent principally accountable for the fact that a police
officer’s attempt to investigate a crime against property had “quickly morphed
into a physical threat to the officer’s own life and safety.” Adopting the panel’s
report, the board concluded:
       {¶ 17} “[T]here was no doubt * * * that Respondent had not only created
a dangerous situation for a uniformed police officer; his behavior had also called
into play a very dangerous situation for his neighborhood and for the Dayton
Police Department.”
       {¶ 18} Though not considered a mitigating or aggravating factor,
respondent’s explanation for his conduct during the standoff troubled the panel
and board. When asked why he had not come out of his house in response to
officer’s requests and demands, respondent testified: “I was afraid for my safety.
They had been doing things to, in my opinion, lure me outside” and “it seemed
like I was under attack by terrorists or something.” Respondent said he had
believed at the time that the police were trying to hurt or kill him, testifying:
       {¶ 19} “[I]n my opinion when they started flashing those amber lights on
that SWAT vehicle in my backyard, they were trying to provoke me into firing
another shot; and then it would have all been over. The reason I didn’t go out was
because I have heard of instances where police officers have beaten people,
sometimes killed people; and I have also heard of situations where they never get
punished for that. They can get away with it.”



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       {¶ 20} Respondent did not offer proof of a mitigating mental disability
under BCGD Proc.Reg. 10(B)(2)(g). This testimony nevertheless raised concerns
for the panel and board about his mental fitness at the time of the standoff and
since that time. Respondent implicitly acknowledged a possible problem himself,
promising “wholeheartedly” to comply with any conditions of reinstatement that
included a mental-health evaluation.
       {¶ 21} As for sanctions imposed in similar cases, the panel recommended
respondent’s indefinite suspension from practice mainly on the authority of
Disciplinary Counsel v. LoDico, 118 Ohio St.3d 316, 2008-Ohio-2465, 888
N.E.2d 1097. In that case, we indefinitely suspended a lawyer from practice,
giving no credit for his interim suspension under Gov.Bar R. V(5)(A)(4), after he
was convicted of one count of carrying a concealed weapon, a felony of the fourth
degree, and six misdemeanor counts of aggravated menacing. The convictions
resulted from an incident in which the lawyer, after a night of heavy drinking,
held six people in a bar parking lot at gunpoint, one after another, with a .45-
caliber pistol and laser sight. And that was not the lawyer’s first disciplinary
sanction. Within the preceding three years, that lawyer had been suspended from
practice for 18 months, albeit with a conditional stay of six months, for
unprofessional, undignified, and discourteous conduct in separate incidents before
two common pleas court judges.
       {¶ 22} Even the panel acknowledged, however, that respondent’s
misconduct did not rise to the level of malfeasance in LoDico.          The board
apparently seized on this distinction in modifying the recommendation for an
indefinite suspension based “on all the circumstances surrounding his arrest and
conviction.” Implicitly, the board found extenuating the facts that respondent
lived in a high-crime neighborhood, that his car had already been stolen twice,
and that the investigating officer did not properly identify himself before he began
a search of respondent’s property. The respondent had also been frightened




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before by unidentified persons shining bright lights into his home.              These
circumstances in no way excuse respondent’s criminal conduct; however, they do
offer insight into why respondent endangered police officers, his neighbors, and
himself on the night in question, an element not present in the LoDico case.
       {¶ 23} Another     distinguishing       feature   is   respondent’s   previously
unblemished professional record. And here, unlike in LoDico, the sentencing
court reduced conditions for respondent’s community control and probation,
indicating that it has reassessed his threat to society. Respondent’s willingness to
obtain treatment for a possible mental disorder also weighs in his favor.
       {¶ 24} Thus, having accepted the board’s findings of misconduct, we also
accept the recommendation for a two-year suspension.              Our decision allows
respondent to forgo the full-freighted petition for reinstatement and hearing
process that applies to indefinite suspensions under Gov.Bar R. V(10)(B) through
(G). We find this safeguard for the public’s protection unnecessary in this case,
given the evidence of mitigation, respondent’s amenability to psychological
assessment, and the unique circumstances of the underlying misconduct. For the
same reasons, we accept the recommendations to order a mental-health evaluation
as a condition of respondent’s reapplication to practice under Gov.Bar R.
V(10)(A) and to allow credit for his interim suspension.
       {¶ 25} Respondent is therefore suspended from the practice of law in
Ohio for two years, with credit from August 30, 2007, for the interim suspension
imposed in In re Howard, 114 Ohio St.3d 1515, 2007-Ohio-4425, 872 N.E.2d
955. As a condition for readmission to practice, respondent must prove to a
reasonable degree of psychological certainty that he is able to return to the
competent, ethical, and professional practice of law.             Costs are taxed to
respondent.
                                                                 Judgment accordingly.




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           MOYER, C.J.,    and     PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, and CUPP, JJ., concur.
           O’CONNOR, J., dissents and would indefinitely suspend respondent from
the practice of law in Ohio.
                                  __________________
           Jonathan E. Coughlan, Disciplinary Counsel, and Phillip A. King, for
relator.
           Lee Howard, pro se.
                               ______________________




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