573 N.E.2d 71
No. 90-2077Supreme Court of Ohio.Submitted January 8, 1991 —
Decided June 5, 1991.
Attorneys at law — Misconduct — Public reprimand — Conduct prejudicial to the administration of justice — Removal of clients’ criminal or traffic affidavits from the courthouse and keeping them in his possession, thus suspending all further proceedings — Conduct contrary to a Disciplinary Rule.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Supreme Court, No. 90-08.
On January 22, 1990, relator, Toledo Bar Association, filed a complaint against respondent, Peter G. Rost, alleging violations of DR 1-102(A)(5) (conduct prejudicial to the administration of justice) and 7-102(A)(8) (conduct contrary to a Disciplinary Rule). Concurrently, relator and respondent stipulated to certain facts. A hearing was held before a panel of the Board of Commissioners on Grievances and Discipline of the Supreme Court on June 21 to 23, 1990.
The charges against respondent and twelve others stemmed from a situation in the Toledo Municipal Court in which defense attorneys were entrusted with certain criminal and traffic affidavits[1] and failed to return them to the court. At a pretrial conference held on March 27, 1990, an agreement was reached that the matters would be heard together. Although contained in a single opinion, the panel’s findings and recommendations were made individually, based on each respondent’s involvement in the situation.
The parties stipulated that (1) respondent improperly removed twenty-seven of his clients’ affidavits from the courthouse and kept them in his possession, which had the effect of suspending all further proceedings against the clients; (2) upon inquiry by the clerk of court, he returned the affidavits; (3) respondent subsequently pled no contest to one count of obstruction of official business for removing the affidavits; (4) respondent admitted violations of DR 1-102(A)(5) and 7-102(A)(8); and (5) respondent should be publicly reprimanded.
At the hearing, respondent testified
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that after pretrial in each matter, he took the affidavit back to his law office where he would try to contact his client, as an alternative to returning the affidavit, having the matter set for hearing, and then requesting a continuance. Respondent also testified that between 1983 and 1988, he was contacted at least one dozen times each year by the clerk of court regarding certain affidavits that he had in his possession and was asked to return them, which he did.
The panel found that respondent intentionally removed the affidavits, and that he was warned in 1986 about removing affidavits from the courthouse, but continued the practice.
Accordingly, the panel rejected the stipulated sanction of a public reprimand, and instead recommended that respondent be suspended from the practice of law for six months, with the suspension stayed and respondent placed on probation during that period.
The board adopted the findings of fact and recommendation of the panel and further recommended that costs of the disciplinary proceedings be taxed to respondent.
Frank E. Kane, Dale W. Fallat and John N. MacKay, for relator.
Robert Z. Kaplan, for respondent.
Per Curiam.
We concur with the findings of the board; however, we modify the sanction. Respondent is publicly reprimanded. Costs taxed to respondent.
Judgment accordingly.
SWEENEY, DOUGLAS, H. BROWN and RESNICK, JJ., concur.
MOYER, C.J., HOLMES and WRIGHT, JJ., dissent.
MOYER, C.J., dissenting.
I would order a six-month suspension, but would suspend same pending respondent’s successful completion of a six-month supervised and monitored probation period.
WRIGHT, J., dissenting.
I believe the facts in this case justify a penalty substantially greater than a public reprimand, to wit, six months’ actual suspension.
HOLMES, J., concurs in the foregoing dissenting opinion.