Tuesday, December 24, 2013
Kathleen Maloney summarizes a decision issued today from the Ohio Supreme Court
A Dayton attorney who embezzled more than $100,000 from his employer has been indefinitely suspended today by the Ohio Supreme Court.
In a 4-3 decision, the court ordered that Mark Allan Anthony must pay nearly $128,000 in restitution and complete a treatment plan for gambling addiction before he is permitted to apply for reinstatement to the practice of law.
During a period of nearly four years as the business manager of the St. Francis de Sales Catholic Church in Lebanon, Anthony embezzled church funds to pay for personal expenses and to support a gambling addiction. After pleading guilty to grand theft in February 2007, Anthony was sentenced to 12 months in prison and ordered to repay the church the money he stole. The common pleas court later modified Anthony’s sentence after he had served four months in prison to five years of community control.
While the parties agreed during Anthony’s disciplinary hearing that he misappropriated approximately $118,000 in parish funds, they also stipulated that a firm handling insurance claims for the Archdiocese of Cincinnati had determined the church’s total loss to be $127,649.15.
The archdiocese had an insurance policy to cover employer dishonesty. It had also created a self-insured retention fund, which paid the first $100,000 on any such claim. In this matter, the fund paid $100,000 to St. Francis, and the archdiocese’s insurance company then paid the remaining amount of the loss to the church, not including a $500 deductible the church paid.
In its per curiam (not authored by a specific justice) opinion today, the court noted that Anthony is currently suspended from practicing law for three reasons – failure to register as an attorney, non-compliance with continuing legal education requirements, and his felony theft conviction. Not complying with attorney registration requirements is prior discipline, the court stated, which makes it is a factor that weighs against an attorney when the court is determining the appropriate sanction in a disciplinary case.
The Supreme Court’s majority also noted that this case is factually different from a recent decision (Stark Cty. Bar Assn. v. Williams) involving a Canton attorney who was disbarred for stealing money to maintain a gambling addiction. In that case, the lawyer kept gambling throughout her disciplinary proceedings and showed little likelihood of recovery, the court explained. Anthony, however, has served his sentences, has not gambled since 2007, and has participated in Gamblers Anonymous for seven years.
In addition to suspending Anthony indefinitely, the court ordered that he must make restitution of $127,649.15 to the retention fund, insurance company, and church before he may apply for reinstatement to the practice of law.
Joining the court’s majority were Justices Paul E. Pfeifer, Terrence O’Donnell, Sharon L. Kennedy, and William M. O’Neill.
Justice Judith Ann Lanzinger dissented in an opinion joined by Chief Justice Maureen O’Connor and Justice Judith L. French.
In the dissent, Justice Lanzinger stated that she would permanently disbar Anthony to be consistent with the court’s decision in Williams, which established the appropriate standard for discipline in these types of cases. In particular, she noted that the Williams court explained to attorneys and the public that the “strictest discipline” must be imposed against attorneys who have misappropriated funds. “This is not a case to back away from that pronouncement,” she concluded, adding that the mitigating factors in this case do not justify a sanction less than disbarment.
The opinion is linked here.
Christmas came a day early. (Mike Frisch)