May 17, 2012
Intercepted E-Mails Result In Suspension
The web page of the Ohio Supreme Court reports:
The Supreme Court of Ohio today suspended the law license of attorney Joshua A. Engel for six months for violations of state attorney discipline rules while Engel served as chief legal counsel for the Ohio Department of Public Safety.
In 2010, Engel pleaded guilty to three misdemeanor counts of disclosing confidential inspector general information by sharing with others copies of emails between Public Safety Department investigators and the inspector general that Engel had intercepted through the use of an internal email filter. At the time the email exchanges took place, the inspectors whose messages were intercepted were working on assignment to the inspector general’s office rather than for the Department of Public Safety.
The court adopted findings by the Board of Commissioners on Grievances & Discipline that Engel did not intend to capture confidential information, but violated ethical canons by failing to terminate use of the filter or to stop sharing intercepted messages with others for almost a year after discovering that the filter had resulted in disclosure of confidential communications.
In imposing an actual license suspension as the sanction for his misconduct, the court distinguished Engel’s actions from those of former Governor Bob Taft, who received a public reprimand for inadvertently failing to disclose in sworn annual financial disclosure statements certain items of value he had received during those years.
The court wrote: “Engel did not intend to intercept confidential information relating to ethics and law-enforcement investigations when he installed the email filter. But when he discovered that the email filter was intercepting such information, he did nothing to stop it and left the filter in place for ‘a couple months, maybe going on a year.’ The (disciplinary) board found that Engel had harmed only himself and declined to increase his sanction based on the potential for inchoate harm arising from his misconduct. We find, however, that his distribution of confidential information about pending law-enforcement and ethics investigations to those who were not authorized to receive such information, while he served as chief legal counsel for DPS, worked to undermine public trust, not only in the legal system, but in state government as a whole.”
“Unlike Taft who was found to have violated the prohibition against a lawyer’s engaging in conduct that adversely reflects on his fitness to practice law with his inadvertent failure to comply with financial disclosures, Engel acted recklessly and stipulated that his conduct adversely reflected on his fitness to practice law and that it was prejudicial to the administration of justice. For these reasons, we find that a greater sanction is warranted.”
The court’s per curiam opinion was joined by Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer, Terrence O’Donnell, Judith Ann Lanzinger and Robert R. Cupp. Justice Yvette McGee Brown did not participate in the court’s deliberations or decision in the case.
Justice Evelyn Lundberg Stratton entered a dissent, noting that the actual license suspension imposed by the court was more severe than the stayed license suspension recommended by the hearing panel that conducted Engel’s hearing or the public reprimand recommended by the full disciplinary board.
She wrote: “The parties stipulated that three mitigating factors are present: the absence of a prior disciplinary record, cooperation with the disciplinary process, and the imposition of the additional penalties of criminal convictions and sentencing. ... The board concluded that there were no aggravating factors and that Engel’s conduct caused no harm to anyone but himself. ... The panel had the opportunity to personally observe Engel and judge his credibility. I see no reason for this court to second-guess the panel’s determinations. Furthermore, the increase in penalty is out of proportion to the violation.
The court's opinion is linked here. (Mike Frisch)
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