461 N.E.2d 1294
D.D. No. 83-24Supreme Court of Ohio.
Decided April 18, 1984.
Attorneys at law — Misconduct — Indefinite suspension — Convictions for conspiracy to fix prices in restraint of trade — Section 1, Title 15, U.S. Code.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Bar.
This is a disciplinary matter in which the complaint against respondent, Richard Joseph Bogomolny, was submitted to the hearing panel upon a stipulation of facts with attached exhibits. The complaint alleged violations of DR 1-102(A)(3) (illegal conduct involving moral turpitude) and DR 1-102(A)(4) (conduct involving dishonesty, fraud, deceit, or misrepresentation) of the Code of Professional Responsibility.
Richard J. Bogomolny is an attorney licensed to practice law in the state of Ohio, being admitted to practice in 1961. On February 19, 1982, respondent, having entered a plea of nolo contendere, was found guilty by the United States District Court for the Northern District of Ohio, Eastern Division, on two counts of the violation of Section 1, Title 15, U.S. Code. The counts encompassed a conspiracy to fix prices in restraint of trade.
Subsequently, on the basis of this conviction, the Supreme Court on November 12, 1982, pursuant to Gov. R. V (8)(a)(iii), ordered respondent’s indefinite suspension from the practice of law.
A copy of the indictment was an exhibit to the complaint filed herein. The corporations and association named in the indictment were First National Supermarkets, Inc., d.b.a. Pick-N-Pay Supermarkets, Fisher Foods, Inc., d.b.a. Fazio’s, and the Association of Stop-N-Shop Super Markets. The individuals named in the indictment were four chief officers of these corporations, including respondent who was Chairman, President and Chief Executive Officer of First National Supermarkets, Inc.
The defendants were charged with conspiring to fix, raise, stabilize, and maintain the advertised prices and everyday shelf prices of grocery products and the advertised prices of some meat items sold in Cuyahoga County, thereby unreasonably restraining trade in these products.
An additional exhibit to the complaint was the judgment entered against the respondent. It recites that he appeared with counsel and entered a plea of nolo contendere to Counts One and Two of the indictment, that there was a finding of guilty, and that defendant was “convicted as charged of the offense(s) of conspiracy to fix prices and conspiracy in restraint of trade and commerce in violation of 15 U.S.C. § 1.”
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The respondent asserted that his plea of nolo contendere did not admit the factual statements of the bill of particulars in the subsequent litigation, and that, in any event, violations of the Sherman Act were not malum in se. Therefore, he contends such violations do not involve moral turpitude.
The relator conversely argues that the plea of nolo contendere
and a finding of guilty for criminal violation of Title 15 of the U.S. Code constituted a violation of the aforestated Disciplinary Rules in that respondent engaged in conduct involving moral turpitude and dishonesty which adversely affected his fitness to practice law. The relator recommended disbarment.
The panel found respondent violated DR 1-102(A)(3) and (A)(4) and recommended that he be indefinitely suspended from the practice of law. The board of commissioners adopted the findings of the panel and also recommended that respondent be indefinitely suspended.
Messrs. Walter, Haverfield, Buescher Chockley, Mr. F. Wilson Chockley, Jr., Mr. Edward J. Maher, McDonald, Hopkins Hardy Co., L.P.A., and Mr. Timothy D. McDonald, for relator.
Messrs. Calfee, Halter Griswold, Mr. Michael L. Miller an Mr. Richard J. Cusick, for respondent.
Per Curiam.
Under the facts presented, a finding of guilty on two counts of violating the Sherman Act constitutes misconduct under DR 1-102(A)(3) and (A)(4). The fact that the respondent entered a plea of nolo contendere to the allegations makes it no less a violation under the Disciplinary Rules.
Having reviewed the evidence and the objections filed on behalf of the respondent, this court determines that the respondent violated the aforestated Disciplinary Rules. Accordingly, we concur in the recommendation of the board of commissioners.
Therefore, it is the judgment of this court that respondent, Richard Joseph Bogomolny, be indefinitely suspended from the practice of law.
Judgment accordingly.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and J.P. CELEBREZZE, JJ., concur.
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