Disciplinary Counsel v. Brickley , 131 Ohio St. 3d 228 ( 2012 )

[Cite as Disciplinary Counsel v. Brickley, 131 Ohio St.3d 228, 2012-Ohio-872.]
DISCIPLINARY COUNSEL v. BRICKLEY.
[Cite as Disciplinary Counsel v. Brickley, 131 Ohio St.3d 228, 2012-Ohio-872.]
Attorneys—Misconduct—Convictions of felony theft involving client funds—
Illegal acts reflecting adversely on lawyer’s honesty—Conduct involving
deceit or dishonesty—Conduct adversely reflecting on fitness to practice
law—Permanent disbarment.
(No. 2011-1728—Submitted December 7, 2011—Decided March 6, 2012.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 10-080.
__________________
Per Curiam.
{¶ 1} Respondent, Barry Frederick Brickley, Attorney Registration No.
0011435, whose address of record is in Mansfield, Ohio, was admitted to the
practice of law in Ohio in 1984. We indefinitely suspended his license in
December 2002, and it has not been reinstated. Richland Cty. Bar Assn. v.
Brickley, 97 Ohio St.3d 285, 2002-Ohio-6416, 779 N.E.2d 750.
{¶ 2} On August 16, 2010, relator, disciplinary counsel, filed a
complaint alleging that between February and September 2006, while working as
a paralegal for a Mansfield attorney, Brickley wrote seven checks to himself from
the attorney’s client trust account without authorization and deposited them into
his personal bank account.
{¶ 3} His actions were not detected until December 2008. Brickley
pleaded no contest to felony counts of theft, forgery, and receiving stolen property
and was accepted into the Richland County prosecuting attorney’s diversion
program. Based upon this conduct, relator alleged that Brickley had violated
Prof.Cond.R. 8.4(b) (prohibiting a lawyer from committing an illegal act that
SUPREME COURT OF OHIO
reflects adversely on the lawyer’s honesty or trustworthiness), (c) (prohibiting a
lawyer from engaging in conduct involving dishonesty, fraud, deceit, or
misrepresentation), and (h) (prohibiting a lawyer from engaging in conduct that
adversely reflects on the lawyer's fitness to practice law).
{¶ 4} Before filing the complaint, relator sent two letters of inquiry to
Brickley, one at the address listed in his attorney registration and another at an
alternate Mansfield address. Both letters were returned, but one bore a
forwarding address in Savannah, Georgia. A third letter was sent to the Georgia
address and was signed for by a Jo Ann Wohlert. A fourth letter was hand-
delivered to Brickley at the Richland County Jail, but he did not respond to either
inquiry. A letter informing Brickley that the investigation had terminated with a
finding of probable cause was not returned to relator, nor was the notice of intent
to file a complaint, although the latter was signed for by someone whose signature
is illegible. Brickley did not respond to either letter. The complaint was served by
certified mail at the Savannah, Georgia address provided by the postal service, but
Brickley has not filed an answer. Therefore, on December 23, 2010, relator filed
a motion for default.
{¶ 5} A master commissioner appointed by the Board of Commissioners
on Grievances and Discipline considered relator’s motion and supporting
evidence in compliance with Gov.Bar R. V(6)(F)(1)(b) (requiring default motions
in attorney disciplinary proceedings to be supported by sworn or certified
documentary prima facie evidence). The master commissioner found by clear and
convincing evidence that Brickley had violated Prof.Cond.R. 8.4(b), (c), and (h),
as alleged in relator’s complaint. The board adopted the master commissioner’s
findings of fact and misconduct.
{¶ 6} In recommending a sanction, the master commissioner and board
considered the aggravating and mitigating factors listed in BCGD Proc.Reg. 10.
See Disciplinary Counsel v. Broeren, 115 Ohio St.3d 473, 2007-Ohio-5251, 875
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January Term, 2012
N.E.2d 935, ¶ 21. As aggravating factors, the master commissioner found that
Brickley had a prior disciplinary record, engaged in a pattern of misconduct
involving multiple offenses, and failed to cooperate in the disciplinary process.
See BCGD Proc.Reg. 10(B)(1)(a), (c), (d), and (e). The sole mitigating factor was
that as of December 13, 2010, Brickley had been making restitution payments as
part of his diversion program.
{¶ 7} The master commissioner acknowledged that Brickley had been
indefinitely suspended from the practice of law and was working as a paralegal
when he committed his misconduct, and therefore could not have had clients of
his own. Nonetheless, he equated Brickley’s theft with the misappropriation of
client funds because the funds came from the client trust account of the attorney
who employed him. Observing that disbarment is the presumptive sanction for
the misappropriation of client funds, Cleveland Bar Assn. v. Dixon, 95 Ohio St.3d
490, 2002-Ohio-2490, 769 N.E.2d 816, ¶ 15, and is an appropriate sanction when
an attorney is convicted of theft offenses, Disciplinary Counsel v. Muhlbach, 104
Ohio St.3d 340, 2004-Ohio-6563, 819 N.E.2d 698, ¶ 11, the master commissioner
recommended that Brickley be permanently disbarred. The board adopted the
master commissioner’s findings of fact and misconduct, as well as his
recommended sanction.
{¶ 8} Accordingly, we permanently disbar Barry Frederick Brickley
from the practice of law in Ohio. Costs are taxed to Brickley.
Judgment accordingly.
O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
__________________
Jonathan E. Coughlan, Disciplinary Counsel, and Heather Coglianese,
Assistant Disciplinary Counsel, for relator.
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