Summary
holding that convictions for involuntary manslaughter, driving while intoxicated, reckless operation and operating a motor vehicle without reasonable control warranted an eighteen month suspension
Summary of this case from In re Discipline of JanklowOpinion
No. D.D. 87-34
Submitted March 9, 1988 —
Decided August 24, 1988.
Attorneys at law — Misconduct — Eighteen-month suspension with five-year probation — Causing fatal automobile accident — Involuntary manslaughter, DWI, reckless operation and operating without reasonable control.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Bar, No. 27-87-B.
Relator, Office of Disciplinary Counsel, filed a complaint against respondent, William P. Michaels, alleging in two counts that respondent's role in causing a fatal automobile accident for which he was subsequently convicted of felony and misdemeanor offenses violated DR 1-102(A)(3) (engaging in illegal conduct involving moral turpitude), and DR 1-102(A)(6) (engaging in other conduct that adversely reflects on fitness to practice law). A hearing was held before a panel of the Board of Commissioners on Grievances and Discipline of the Bar.
On May 16, 1985, respondent, William P. Michaels, was at fault in causing an automobile accident fatally injuring one, and seriously injuring two, seventeen-year-old minors. His blood-alcohol level at the time of the accident was found to be .212. A person is deemed to be under the influence of alcohol if his blood-alcohol level is at .10 or more. Respondent pleaded guilty to involuntary manslaughter, a felony of the third degree; driving while intoxicated, a first-degree misdemeanor; and reckless operation and operating a motor vehicle without reasonable control, both minor misdemeanors.
Respondent was sentenced to from five-to-ten years in prison, one hundred eighty days in the Summit County Jail, fined $2,700, assessed court costs, and his driver's license was suspended for three years. The prison sentences were suspended and respondent was placed on five years' probation upon specific conditions. The board found that respondent had complied with all conditions of probation.
Upon respondent's conviction of the felony of involuntary manslaughter, this court, in case No. D.S. 86-8, indefinitely suspended respondent's license to practice law in Ohio under Gov. Bar R. V(9)(a)(iii). The suspension has remained in effect since October 1, 1986, and the board found respondent has not practiced law since that date.
Respondent has admitted the facts and circumstances giving rise to his felony and misdemeanor convictions. In response to the allegations of misconduct, however, respondent asserted that because his conduct was not intentional and did not involve the practice of law, it was not conduct involving moral turpitude or adversely reflecting on his fitness to practice law. Respondent pleaded for mitigation of punishment based upon the criminal, civil, and personal penalties already exacted, and recommended that a two-year probation period be imposed.
In support of his recommendation, respondent presented ten character witnesses, nine by videotape deposition. Included among the witnesses were several judges, the present and former Summit County Prosecuting Attorneys, and the Akron Chief of Police. Each opined favorably as to the respondent's truthfulness, veracity, superior legal abilities, and reputation for competency in his practice. Each stated that except for the incident at issue, they had no knowledge that respondent had conducted himself in a manner that would adversely reflect upon his fitness to practice law.
The respondent testified regarding his military service, and his activities in the Akron Bar Association, including his membership on the Ethics and Grievance Committee. He also testified regarding his use of alcohol as follows:
"COMMISSIONER FELICIANO: In this report that your attorney provided for us, it says in here that I'm hearing you say that you're not an alcoholic, yet this report it says you were in the middle stages of alcoholism. How do you account for that?
"THE WITNESS: My father is a member of AA, has been a member of AA for a number of years. * * *
"* * *
"As far as the question of whether or not I am an alcoholic at this point in time, I am firmly convinced I'm not an alcoholic. However, with that background, the potential is there. I from this day and for every day, I have to be very careful if I do consume alcohol. I cannot go out and just drink like anybody else. I know that potential is there.
"The studies that I've read and have been shown shows [ sic] that there has been some correlation drawn between hereditary factor. I know that's there, so the potential is there. So I can't abuse alcohol.
"CHAIRMAN BOWMAN: Do you actually participate in the usage of alcohol at all?
"THE WITNESS: I have an occasional drink, yes, sir, but I do it for two reasons. First of all —
"CHAIRMAN BOWMAN: Where do you do it at?
"THE WITNESS: Mostly at home. I have a glass of wine with my wife. But it's — part of it is to prove to myself that I'm not an alcoholic, that I can stop after that one drink. And the other part is that it's been a part of my social function when I have dinner with my wife and I have friends over the house for dinner."
In contrast, respondent's probation supervisor testified as follows in relation to respondent's presentence investigation:
"A. At that time it was my opinion, based upon interviews with a number of different people as well as a referral to the Akron Health Department, that I think we could say Mr. Michaels was a budding alcoholic. He was probably, if not an alcoholic at that particular time, he was in the latter stages or very much heading towards that. And he showed very little insight into the — into his potential alcoholism. Apparently there had been some other alcoholism in the family and he was following in that particular direction."
Relator contended that respondent's illegal conduct involved moral turpitude, and relied upon Cincinnati Bar Assn. v. Shott (1967), 10 Ohio St.2d 117, 39 O.O. 2d 110, 226 N.E.2d 724, to argue that the lawyer, because of his training and position of public trust, must be held to a stricter standard regarding moral turpitude than the non-lawyer. Relator further maintained that respondent's conduct and conviction adversely reflect on his fitness to practice law because they lessen public confidence in the legal profession.
After due consideration of the evidence and law, the board found respondent had engaged in conduct adversely reflecting on his fitness to practice law in violation of DR 1-102(A)(6), but had not engaged in illegal conduct involving moral turpitude. The board recommended that respondent be suspended from the practice of law for one year.
J. Warren Bettis, disciplinary counsel, and Karen B. Hull, for relator.
Charles E. Grisi, for respondent.
We find that respondent violated DR 1-102(A)(6) as found by the board. Allegations of misconduct based on criminal convictions for actions unrelated to the practice of law have frequently resulted in disciplinary sanctions by this court. For example, see Disciplinary Counsel v. Hughes (1985), 17 Ohio St.3d 210, 17 OBR 445, 478 N.E.2d 796 (extortion in violation of DR 1-102[A][3], [5] and [6], resulting in disbarment); Muskingum Cty. Bar Assn. v. Workman (1985), 17 Ohio St.3d 95, 17 OBR 216, 477 N.E.2d 632 (assault and criminal trespass in violation of DR 1-102[A][3], resulting in one-year suspension); Disciplinary Counsel v. Collins (1985), 17 Ohio St.3d 41, 17 OBR 34, 476 N.E.2d 1050 (mail fraud in violation of DR 1-102[A][3] and [4], resulting in indefinite suspension); Disciplinary Counsel v. Wanner (1984), 15 Ohio St.3d 319, 15 OBR 446, 473 N.E.2d 829 (sexual battery in violation of DR 1-102[A][3], [5] and [6], resulting in indefinite suspension); Disciplinary Counsel v. Gross (1984), 11 Ohio St.3d 48, 11 OBR 195, 463 N.E.2d 382 (misdemeanor and minor misdemeanor drug offenses in violation of DR 1-102[A][6], resulting in indefinite suspension); Cincinnati Bar Assn. v. Heekin (1984), 9 Ohio St.3d 84, 9 OBR 314, 459 N.E.2d 495 (theft from utility in violation of DR 1-102[A][3], [4] and [6], resulting in disbarment); Cincinnati Bar Assn. v. Levin (1983), 3 Ohio St.3d 25, 3 OBR 496, 445 N.E.2d 661 (drug trafficking in violation of DR 1-102[A][3] and [6], resulting in indefinite suspension); Columbus Bar Assn. v. Harris (1982), 1 Ohio St.3d 33, 1 OBR 68, 437 N.E.2d 596 (aggravated assault in violation of DR 1-102[A][3], resulting in one-year suspension); Portage Cty. Bar Assn. v. Miller (1982), 70 Ohio St.2d 162, 24 O.O. 3d 272, 436 N.E.2d 217 (grand theft and gambling offenses in violation of DR 1-102[A][3], [4] and [6], resulting in indefinite suspension); Cincinnati Bar Assn. v. Lisner (1981), 65 Ohio St.2d 62, 19 O.O. 3d 258, 417 N.E.2d 1381 (gross sexual imposition and sexual imposition in violation of DR 1-102, resulting in disbarment); Cincinnati Bar Assn. v. Leroux (1968), 16 Ohio St.2d 10, 45 O.O. 2d 259, 242 N.E.2d 347 (failure to file federal income tax returns, resulting in public reprimand); Cincinnati Bar Assn. v. Shott, supra (sale of unregistered securities without a license, resulting in disbarment); Bar Assn. v. Smith (1963), 174 Ohio St. 452, 23 O.O. 2d 106, 190 N.E.2d 267 (conveying false information concerning attempt to place bomb on civilian aircraft, resulting in indefinite suspension); Butler Cty. Bar Assn. v. Schaeffer (1961), 172 Ohio St. 165, 15 O.O. 2d 320, 174 N.E.2d 103 (illegal procurement of narcotic drugs with forged prescriptions, resulting in indefinite suspension). Sanctions have been imposed even where illegal conduct unrelated to the practice of law was found to be unintentional. Cincinnati Bar Assn. v. Leroux, supra.
Although respondent's illegal conduct was unintentional, the imposition of an appropriate sanction in this case must necessarily take into account the fact that the life of another person ended as a result of respondent's abuse of alcohol. We conclude that an appropriate sanction in this case is an eighteen-month suspension from the practice of law, provided that the granting of respondent's application for reinstatement to the practice of law shall not be automatic.
We perceive our responsibility in cases of this nature to go beyond the imposition of a standard appropriate sanction. In Ohio, as in every other state, the opportunities presented the legal profession to assist judges and lawyers in becoming free of alcohol and drug dependence are increasing at a rapid rate. Where a lawyer's use of alcohol or drugs results in conduct that violates the Code of Professional Responsibility, the disciplinary process of this court can and should be viewed as a potential for recovery as well as a procedure for the imposition of sanctions.
Although the record indicates that respondent's use of alcohol may have subsided to some extent since May 16, 1985, we are convinced that he needs help. Therefore, in addition to the eighteen-month suspension from the practice of law we have imposed today, respondent is placed on probation for five years from the date of this order, during which time he shall be required to abstain from the use of alcohol. The probation shall be monitored by the Office of Disciplinary Counsel with the assistance of the Lawyers Assistance Committee of the Ohio State Bar Association. Respondent's application for readmission to the practice of law and, if readmitted, his status as a lawyer thereafter will be determined, in part, by his compliance with the conditions of his probation. Costs are taxed to respondent.
Judgment accordingly.
SWEENEY, LOCHER, DOUGLAS, WRIGHT and H. BROWN, JJ., concur.
HOLMES, J., not participating.