Wednesday, April 7, 2021

Pre-Admission Criminal Conduct Draws Permanent Disbarment

The Ohio Supreme Court has permanently disbarred an attorney, primarily for criminal conduct that pre-dated his admission

From August 2006 until January 2010, Polizzi was employed by Cornerstone Christian Academy, where he taught high school history and middle school English, served as a mock-trial advisor and class advisor, and coached middle school cross country. In July 2017, the Lake County Grand Jury indicted Polizzi on one count of gross sexual imposition and 24 counts of sexual battery for conduct that allegedly occurred with a student (“Victim 1”) in January and February 2010. A second indictment, issued in December 2017, charged with 33 counts of gross sexual imposition, 22 counts of sexual battery, and one count of attempted sexual battery for conduct that allegedly occurred with a second student (“Victim 2”) between October 2007 and June 2008.

 On March 28, 2018, Polizzi pleaded guilty to one count of gross sexual imposition and three counts of sexual battery with respect to each victim. Polizzi admitted that in January 2010 he engaged in gross sexual imposition by touching Victim 1 on the thigh and compelling her to submit by force or threat of force. He also admitted that in early 2010 he committed three acts of sexual battery, by engaging in digital penetration, cunnilingus, and fellatio with Victim 1. Polizzi admitted that between October 2007 and June 2008, he engaged in gross sexual imposition by touching Victim 2’s clothed genital area and causing her to have similar sexual contact with him, and he further admitted that he had compelled the victim to submit by force or threat of force. He also admitted that he committed three acts of sexual battery between March and June 2008 by digitally penetrating Victim 2. Polizzi admitted that at the time of these offenses, Victims 1 and 2 were minors enrolled at the school at which he was employed as a teacher, coach, or other person in authority

He is serving a lengthy prison sentence.

During his disciplinary hearing, Polizzi testified that Victim 1 and Victim 2 had been students in his American History class and that he had coached Victim 1’s mock-trial team. Polizzi had met privately at the school with Victim 2 around a dozen times, at her mother’s request, to help her with a personal family matter. He testified that Victim 2 was 17 or 18 years old and still a student at the school when he began having illegal sexual contact with her in April 2008 and that he continued to engage in sexual conduct with her until October 2009.

Polizzi testified that he had communicated with both victims by text message, but he maintained that only one of those text messages, a text to Victim 1, was sexually suggestive. He admitted that he had met and engaged in sexual conduct with each victim at a park. After one such meeting with Victim 1 in January 2010, someone reported having seen Polizzi arrive at the school with Victim 1. When confronted by the superintendent of the school, Polizzi admitted that he had met with Victim 1, but he was not honest about his sexual relationship with his students. Nonetheless, the superintendent informed Polizzi that his contract would not be renewed.

He then started a law career

In August 2010, Polizzi began to attend the University of Akron School of Law and work at the Cuyahoga County Prosecutor’s Office. He graduated in December 2012 and took the February 2013 bar exam. Although he disclosed the termination of his employment at Cornerstone Christian Academy on his bar application, he did not disclose that he had engaged in sexual conduct with his students.

The court expressed concerns about his post-dismissal contact with the victims

Polizzi’s continued communication with his victims is just one of many factors that demonstrate his ongoing lack of remorse and failure to accept responsibility for his crimes. For example, as described above, at his disciplinary hearing, Polizzi was unwilling or unable to admit the true nature of the e-mail that he had sent to Victim 1 approximately eight years earlier. Although Polizzi now asserts that his hesitance in responding to relator’s questions illustrates nothing but shame, he actually attempted to convince the panel that he had e-mailed Victim 1 only because he felt guilty and wanted “closure.” On further cross-examination, however, he admitted that he had used a fake e-mail address, had not disclosed his identity, and had asked Victim 1 at least one sexually explicit question, so the e-mail is more properly characterized as an attempt to remind the victim of—rather than apologize for—his past criminal conduct.

As to precedent

The most significant distinction between disciplinary cases involving sexual misconduct that resulted in an indefinite suspension and those that resulted in permanent disbarment is that—like Polizzi—the attorneys who were disbarred were either convicted of gross sexual imposition or used force, the threat of force, or extreme forms of coercion to compel their victims to submit to their sexual demands...

In this case, for more than two years, Polizzi used his authority as a teacher to compel two of his students to engage in sexual conduct with him and threatened at least one victim with discipline or expulsion to keep her from reporting his conduct.

As to the disclosure on the bar admission application

Although Polizzi disclosed the termination of his teaching employment on his bar-exam application, he did not disclose that he had had sexual contact with two of his students. Had Polizzi disclosed that conduct or been convicted before he sought admission to the bar, his application most certainly would have been disapproved.

Justice Donnelly dissented

The court today permanently disbars respondent, Anthony John Polizzi Jr., but not because of anything that Polizzi did or did not do as an attorney. The court imposes this ultimate form of discipline for criminal offenses that were committed three to five years before Polizzi became an attorney but were not prosecuted until four years after he became an attorney. Because that sanction is inconsistent with our precedent, I respectfully dissent.

To be absolutely clear, when it is discovered that an attorney has committed criminal acts, whether the conduct occurs after bar admission or before, swift and severe consequences are necessary. Polizzi’s criminal conduct indisputably predated his 2013 admission to the practice of law. In the only Ohio case to which we have been directed where discipline was imposed for criminal conduct that occurred prior to the attorney’s admission to the practice of law, this court indefinitely suspended the attorney.

...This court has chosen the less severe sanction of indefinite suspension for equally reprehensible criminal acts, including predatory sexual acts involving children.

The possibility of redemption

Our primary objective in disciplinary proceedings is to protect the public in relation to the lawyer’s fitness to practice law through sanctions that are consistent with those imposed in similar cases. The discipline imposed should be both purposeful and proportionate. I do not believe that Polizzi’s disbarment is compelled by our precedents or by the principles that guide the disciplinary process.

 I do not know whether Polizzi should be permitted to practice law again. I do not believe that that issue should be considered until there has been sufficient time and opportunity for Polizzi’s due reflection and true contrition and for Polizzi to establish affirmative evidence of his redemption. But today’s decision declaring him to be beyond redemption and categorically unfit to ever practice law again eliminates any incentive for him to seek professional and perhaps personal rehabilitation. I would indefinitely suspend Polizzi from the practice of law. I therefore dissent, respectfully.

DEWINE and STEWART, JJ., concur in the foregoing opinion. 

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2021/04/from-august-2006-until-january-2010-polizzi-was-employed-bycornerstone-christian-academy-where-he-taught-high-school-histor.html

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