Thursday, April 28, 2016

Dan Trevas has a summary of a disciplinary case on the web page of the Ohio Supreme Court

Willoughby Attorney Hector G. Martinez Jr., who admitted to participating in an attempted bribery scheme connected with Cleveland Attorney Anthony O. Calabrese III, received a six-month stayed suspension from the practice of law from the Ohio Supreme Court today.

The Supreme Court voted 4-3 to suspend Martinez for six months, and stayed the suspension on the condition he engage in no further misconduct. In a dissenting opinion, Justice Terrence O’Donnell stated he would have suspended Martinez’s license for one year.

Participated in Bribery Scheme

In its per curiam decision, the Court found that Martinez, the Office of Disciplinary Counsel, and the Board of Professional Conduct stipulated to the facts that led to charging Martinez with four counts of violating the rules governing attorneys, and they agreed to the mitigating circumstances presented on Martinez’s behalf.

In November 2011, a woman referred to in court documents as “L.A.” retained Martinez to obtain a civil protection order against Thomas Castro who had sexually assaulted and stalked her. Castro consented to the order, and Martinez and L.A. met with a detective to discuss the criminal assault. Castro was later indicted on several counts of rape and sexual battery involving L.A. and several other women.

With L.A.’s authorization, Martinez informed the prosecutor that L.A. did not want to pursue charges against Castro, and his representation came to an end. He later contacted L.A. to inform her that Castro had pleaded guilty in his criminal case.

Before Castro was sentenced, his attorney, Calabrese, spoke to Martinez about L.A. Calabrese at the time was under federal indictment for crimes of racketeering, conspiracy, bribery, and fraud. He told Martinez that Castro was willing to settle any civil claims that L.A. might bring if she would write a favorable letter to the sentencing judge.

At the time, L.A. had not discussed a civil lawsuit against Castro with Martinez. But based on his conversation with Calabrese, Martinez believed that Castro would pay L.A. a monetary settlement if she would request that the sentencing judge not send Castro to jail. After he informed L.A. that another Castro victim had received a settlement, she authorized him to pursue one on her behalf.

L.A. rejected the initial settlement offer indicating she intended to write “a bad letter” to the sentencing judge. After Martinez informed her that Castro was increasing his offer, L.A. asked Martinez if it was illegal for Castro to offer her money before his sentencing. He told her that it was not illegal as long as it was an offer to settle civil claims, but that it would be illegal if it was in exchange for dismissing criminal charges.

L.A. informed Martinez that the prosecutor thought the offer was illegal, and that she and law enforcement authorities wanted to go through with it so that Castro could be charged with bribery. Martinez then sent L.A. a letter terminating his representation and stated reasons for doing it that were not true.

Martinez was criminally charged for the bribery attempt and agreed to testify against Calabrese, and others involved before a grand jury in exchange for a misdemeanor charge.

Calabrese subsequently pleaded guilty in federal court to engaging in corrupt activity with respect to L.A. and other Castro victims. He was sentenced to nine years in prison, and disbarred by the Ohio Supreme Court. Two other Castro attorneys that Martinez testified against, Marc Doumbas and Tim Marshall, were also convicted in the bribery attempts and indefinitely suspended by the Court.

Martinez pleaded no contest to obstructing official business, and was sentenced to 10 days in jail, which were suspended, three months of probation, 25 hours of community service, and was fined $750. Based on the charges, the board found Martinez violated four rules including committing an illegal act that reflects adversely on a lawyer’s honesty and trustworthiness, and engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.

When considering sanctions for Martinez, the Court found relevant mitigating factors included the absence of a prior disciplinary record, his cooperative attitude, his good character and reputation apart from this episode, and the criminal sanctions imposed on him.

“The board found him to be a very impressive witness who was contrite and truly remorseful for his misconduct and that his demeanor and testimony demonstrated that he has learned the necessary lessons from this experience,” the opinion stated.

The Court ordered a stayed suspension, but stated that if Martinez engages in further misconduct, he will be forced to serve the entire six-month suspension.

Justices Paul E. Pfeifer, Judith Ann Lanzinger, Sharon L. Kennedy and William M. O’Neill joined the majority opinion.

Dissent Wanted More Severe Sanction

In his dissent, Justice O’Donnell wrote that Martinez knowingly participated in a scheme to bribe a crime victim, and after the victim contacted the prosecutor about it, he abruptly terminated his representation while making untrue statements to her.

Justice O’Donnell noted other cases where an attorney has attempted to “thwart the administration of justice,” disbarment has been an accepted sanction, and the Court has indefinitely suspended attorneys who attempted bribery. He maintained that the six-month stayed suspension was insufficient for conduct involving bribery because Martinez’s conduct not only corrupts the judicial process, but also had the potential of presenting false information to a sentencing judge.

“Any actions that subvert the adversarial process call for a sanction stronger than a stayed suspension from the practice of law,” he wrote.

Chief Justice Maureen O’Connor and Justice Judith L. French joined his dissent.

2015-1633. Disciplinary Counsel v Martinez, Slip Opinion No. 2016-Ohio-2709.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2016/04/stayed-suspension-for-attorney-who-cooperated-in-bribery-investigation.html