Disciplinary Counsel v. Dann

[Cite as Disciplinary Counsel v. Dann, 134 Ohio St.3d 68, 2012-Ohio-5337.]

DISCIPLINARY COUNSEL v. DANN.
[Cite as Disciplinary Counsel v. Dann, 134 Ohio St.3d 68, 2012-Ohio-5337.]
Attorney misconduct—Previous discipline—Former state attorney general—
Misdemeanor convictions—Six-month license suspension.
(No. 2011-2026—Submitted April 3, 2012—Decided November 20, 2012.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 11-024.
__________________
Per Curiam.
{¶ 1} Respondent, Marc Edward Dann of Cleveland, Ohio, Attorney
Registration No. 0039425, was admitted to the practice of law in Ohio in 1987. In
March 2004, we publicly reprimanded Dann for handling a legal matter without
adequate preparation. Mahoning Cty. Bar Assn. v. Dann, 101 Ohio St.3d 266,
2004-Ohio-716, 804 N.E.2d 428.1
{¶ 2} Finding that Dann engaged in conduct that adversely reflects on his
fitness to practice law by soliciting improper compensation and filing false
financial disclosures while serving as the Ohio attorney general, the Board of
Commissioners on Grievances and Discipline now recommends that we suspend
Dann’s license to practice law in Ohio for six months. Dann objects to the
recommended sanction, arguing that the board has not assigned the appropriate
weight to the applicable aggravating and mitigating factors and that a fully stayed
suspension will adequately protect the public. For the reasons that follow, we

1. Dann had agreed to represent a client who sought to modify a qualified domestic relations order
(“QDRO”) to permit him to make a lump-sum payment to his former wife in lieu of monthly
withholdings from his pension benefits. Instead of moving to modify the QDRO, Dann moved the
court to terminate a nonexistent spousal-support order. Following this mistake, the client
terminated Dann’s representation and filed a grievance against him.
 SUPREME COURT OF OHIO

overrule Dann’s objections and adopt the board’s findings of fact, conclusions of
law, and recommended sanction.
Procedural History and Misconduct
{¶ 3} Dann served as the Ohio attorney general from January 8, 2007,
until he resigned on May 14, 2008. He was charged in May 2010 with first-
degree misdemeanor counts of soliciting improper compensation in violation of
R.C. 2921.43(A)(1)2 and filing false financial disclosures in violation of R.C.
102.02(D)3 for conduct that occurred during his tenure as attorney general. State
v. Dann, Franklin Cty. M.C. Nos. 2010 CRB 9998-1 and 2010 CRB 9998-2 (May
7, 2010). Dann entered an Alford plea to the charge of soliciting improper
compensation and pled guilty to filing false financial disclosures. He was found
guilty of both counts, was sentenced to pay a $500 fine for each count, and was
ordered to perform 500 hours of community service.
{¶ 4} As a result of these criminal convictions, relator, disciplinary
counsel, charged Dann with violating Prof.Cond.R. 8.4(h) (prohibiting a lawyer
from engaging in conduct that adversely reflects on the lawyer’s fitness to
practice law). The parties submitted a consent-to-discipline agreement, which
included nine stipulated exhibits and stipulations of fact and misconduct as well
as aggravating and mitigating factors. They further stipulated that a six-month

2. R.C. 2921.43(A) provides:

No public servant shall knowingly solicit or accept, and no person shall
knowingly promise or give to a public servant, either of the following:
(1) Any compensation, other than as allowed by divisions (G), (H), and
(I) of section 102.03 of the Revised Code or other provisions of law, to perform
the public servant’s official duties, to perform any other act or service in the
public servant’s public capacity, for the general performance of the duties of the
public servant’s public office or public employment, or as a supplement to the
public servant’s public compensation;
(2) Additional or greater fees or costs than are allowed by law to
perform the public servant's official duties.

3. R.C. 102.02(D) provides: “No person shall knowingly file a false statement that is required to
be filed under this section.”

2
 January Term, 2012

stayed suspension was the appropriate sanction for Dann’s misconduct. The
board, however, rejected the agreement and remanded the matter to the panel for
further proceedings.
{¶ 5} On remand, the parties resubmitted their stipulations, which
reiterated that while serving as the Ohio attorney general, Dann hired Anthony
Gutierrez as the director of general services and Leo Jennings as the
communications director for the Ohio attorney general’s office. While Gutierrez
and Jennings served in these positions, Dann provided them with free rental
housing and associated benefits. His campaign committee, Dann for Ohio
Committee, paid at least $7,178 in living expenses for Gutierrez and more than
$30,000 for Jennings. Dann also authorized the Marc Dann OAG Transition
Corp. to provide a $5,000 interest-free loan to Gutierrez.
{¶ 6} In addition, as a candidate and an elected official, Dann was required
to file annual financial-disclosure forms pursuant to R.C. 102.02(A). In April
2007, he filed a required financial-disclosure statement with the Ohio Ethics
Commission, but failed to disclose 15 expense-reimbursement checks—totaling
$17,540.86—that he had received from his campaign committee. And on his
April 2008 financial-disclosure form, he failed to disclose that a campaign
contributor and his companies paid $20,803.52 to lease the private jet that
transported Dann, his two minor children, Gutierrez’s two minor children, and
two others to Scottsdale, Arizona, for a Democratic Attorneys General
Association seminar in January 2007.
{¶ 7} The panel adopted the stipulated facts and found that Dann’s
conduct violated Prof.Cond.R. 8.4(h), and the board adopted the panel’s report.
Sanction
{¶ 8} In recommending a sanction, the board considered the aggravating
and mitigating factors listed in BCGD Proc.Reg. 10(B). See Stark Cty. Bar Assn.
v. Buttacavoli, 96 Ohio St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶ 16;

3
 SUPREME COURT OF OHIO

Disciplinary Counsel v. Broeren, 115 Ohio St.3d 473, 2007-Ohio-5251, 875
N.E.2d 935, ¶ 21.
{¶ 9} As mitigating factors, the parties stipulated and the board found that
Dann has provided full and free disclosure to the disciplinary board, has displayed
a cooperative attitude toward these proceedings, has established his good
character and reputation apart from the charged misconduct, and has been subject
to other penalties and sanctions through the criminal justice system. See BCGD
Proc.Reg. 10(B)(2)(d), (e), and (f). The panel also found that as a consequence
of his criminal conviction, Dann cannot hold public office for seven years. The
only stipulated aggravating factor is Dann’s prior disciplinary record. See BCGD
Proc.Reg. 10(B)(1)(a).
{¶ 10} Dann called four witnesses, including two clients and an attorney
who shares office space with him, to testify to his good character and reputation.
A staff attorney from the Legal Aid Society of Cleveland testified that Dann
participated in this program prior to his criminal conviction and that he continued
to be involved even after he completed his community-service obligation. Dann
also submitted letters from ten people, including four judges, who attested to his
good character and reputation in the community apart from the charged
misconduct.
{¶ 11} Dann testified to the humiliation his conduct brought on himself
and his family and admitted that his missteps revolved around his self-described
hubris or arrogance. He explained that he did not expect to win the election and
consequently was not prepared to hire a staff or properly organize his office. This
lack of preparation and the competition for experienced government employees
among other newly elected officials—some of whom could offer higher salaries—
left Dann to hire employees with little or no government experience. Dann also
claimed to have relied on the advice of his staff in making hiring decisions,

4
 January Term, 2012

stating that in hindsight, he believed that his staff recommended hiring people
they thought he would want to hire, instead of the people he should have hired.
{¶ 12} Dann admitted that he was aware of legislation enacted to prohibit
public employees from receiving additional compensation, noting the case of a
previous lieutenant governor who had accepted additional compensation from a
campaign committee. But wanting to compensate his employees for their political
work, he did not question advisors who reportedly told him that campaign funds
could be used for that purpose.
{¶ 13} With regard to his financial-disclosure statements, Dann testified
that he did not believe that he had to report the payments received from his
campaign committee, because he had already disclosed them on his campaign
reports. He did, however, falsely report that the Democratic Attorneys General
Association had paid travel expenses of $7,687.14—an amount he claimed to
have calculated in accordance with a Federal Election Commission guideline that
purportedly equates the value of private-jet travel to two first-class airline tickets.
Dann should have reported the actual cost of the trip, which was at least $20,000,
and that in fact, an outside group had provided a private plane. Dann also
testified that he did not personally prepare his financial-disclosure statements.
{¶ 14} The panel recognized that the primary purpose of the sanction
imposed in attorney-discipline matters is not to punish the offender, but to protect
the public. See, e.g., Disciplinary Counsel v. O’Neill, 103 Ohio St.3d 204, 2004-
Ohio-4704, 815 N.E.2d 286, ¶ 53; Ohio State Bar Assn. v. Weaver, 41 Ohio St.2d
97, 100, 322 N.E.2d 665 (1975). The panel also acknowledged that we have
imposed a public reprimand or fully stayed suspensions for comparable
misconduct committed by attorneys while they served as public officials. See
Disciplinary Counsel v. Taft, 112 Ohio St.3d 155, 2006-Ohio-6525, 858 N.E.2d
414, ¶ 15; Disciplinary Counsel v. Forbes, 122 Ohio St.3d 171, 2009-Ohio-2623,

5
 SUPREME COURT OF OHIO

909 N.E.2d 629, ¶ 28; and Disciplinary Counsel v. Carroll, 106 Ohio St.3d 84,
2005-Ohio-3805, 831 N.E.2d 1000, ¶ 15.
{¶ 15} In rejecting the parties’ recommended sanction of a fully stayed
suspension and recommending an actual six-month suspension, the panel cited
Dann’s poor judgment, his efforts to explain away his ethical breaches, and the
unique harm to the legal profession and to public confidence in our government
when the attorney general—the chief law-enforcement officer for the state of
Ohio—engages in misconduct. The board adopted the panel’s findings of fact,
conclusions of law, and recommended sanction.
Dann’s Objections to the Recommended Sanction
{¶ 16} Dann objects to the board’s recommended sanction, arguing that
his mitigating evidence and our precedent weigh in favor of a fully stayed
suspension and that the board placed undue emphasis on his status as the attorney
general in recommending an actual suspension from the practice of law.
{¶ 17} Dann contends that the board failed to accord sufficient weight to
his mitigating evidence. He argues that his resignation from office, the seven-
year disqualification from holding a public office,4 his acceptance of
responsibility, his cooperation in the disciplinary proceedings, and evidence of his
good character and reputation should be given greater weight. He also argues that
his extensive pro bono service to homeowners at risk of foreclosure and the risk
of harm to those clients if he is temporarily removed from the practice of law
weigh in favor of a fully stayed suspension.
{¶ 18} The board considered each of these factors in crafting its
recommended sanction. It noted Dann’s cooperation in the disciplinary process,
as well as his good character and reputation. The board also identified Dann’s
criminal sanction and the seven-year bar against holding a public office as

4. R.C. 2921.43(E).

6
 January Term, 2012

mitigating factors, but in weighing those factors, it also considered his professed
lack of interest in holding another public office. While we find that the services
Dann provides to homeowners facing foreclosure are admirable and have some
mitigating value, we have also recognized that “service to indigent clients, while
mitigating, does not immunize a lawyer from discipline for misconduct.”
Disciplinary Counsel v. Rohrer, 124 Ohio St.3d 65, 2009-Ohio-5930, 919 N.E.2d
180, ¶ 51.
{¶ 19} Despite the presence of significant mitigating factors, two
aggravating factors—Dann’s prior discipline and his position as the state’s
attorney general at the time he committed his current misconduct—weigh in favor
of a more severe sanction.
{¶ 20} Gov.Bar R. V(6)(C) provides, “Prior disciplinary offenses shall be
considered as a factor that may justify an increase in the degree of discipline to be
imposed for subsequent misconduct.” See also BCGD Proc.Reg. 10(B)(1)(a).
Indeed, we have stated:

The purpose of [a disciplinary sanction] is not to punish the
individual. It is intended to protect the public, the courts and the
legal profession. Thus the moral character of an attorney is at all
times to be scrutinized for the purpose of insuring that protection.
And such moral character is necessarily at issue in a [disciplinary]
proceeding. If a prior attempt at discipline has been ineffective to
provide the protection intended for the public, then such further
safeguards should be imposed as will either tend to effect the
reformation of the offender or remove him entirely from the
practice. The discipline for a repeated offense may be much
greater than would have been imposed were it a first offense, yet
such greater discipline is not a meting out of further punishment

7
 SUPREME COURT OF OHIO

for prior acts but is a determination of the attorney’s fitness to
practice.

In re Disbarment of Lieberman, 163 Ohio St. 35, 41, 125 N.E.2d 328 (1955).
Therefore, it is reasonable and proper to consider Dann’s previous sanction for
professional misconduct as an aggravating factor and to impose a harsher sanction
than we might otherwise impose for an attorney who committed comparable
conduct but had no prior discipline
{¶ 21} Dann’s status as the Ohio attorney general at the time he committed
his misconduct also weighs in favor of a greater sanction. See BCGD Proc.Reg.
10(B) (“In determining the appropriate sanction, the Board shall consider all
relevant factors; precedent established by the Supreme Court of Ohio, and [certain
enumerated factors]”). “ ‘One of the fundamental tenets of the professional
responsibility of a lawyer is that he should maintain a degree of personal and
professional integrity that meets the highest standard. The integrity of the
profession can be maintained only if the conduct of the individual attorney is
above reproach. He should refrain from any illegal conduct. Anything short of this
lessens public confidence in the legal profession—because obedience to the law
exemplifies respect for the law.’ ” Cincinnati Bar Assn. v. Hennekes, 110 Ohio
St.3d 108, 2006-Ohio-3669, 850 N.E.2d 1201, ¶ 13, quoting Cleveland Bar Assn.
v. Stein, 29 Ohio St.2d 77, 81, 278 N.E.2d 670 (1972).
{¶ 22} For example, we have declared, “It is of utmost importance that the
public have confidence in the integrity and impartiality of the judiciary.”
Disciplinary Counsel v. Allen, 79 Ohio St.3d 494, 495, 684 N.E.2d 31 (1997).
And we have recognized that misconduct committed by a judge vested with the
public’s trust causes incalculable harm to the public perception of the legal
system. Disciplinary Counsel v. Hoskins, 119 Ohio St.3d 17, 2008-Ohio-3194,
891 N.E.2d 324, ¶ 81.

8
 January Term, 2012

{¶ 23} Like judges, the attorney general has a heightened duty to the
public by virtue of his elected office. As the chief law officer for the state, the
attorney general is charged with providing legal representation and advice to all
officers, boards, heads of departments, and institutions of this state. See generally
R.C. 109.02 and 109.12. For that reason, the work of the attorney general touches
upon virtually all areas of our state government. Thus, Dann’s criminal and
ethical violations reflect poorly on his fitness to practice law and the legal
profession as a whole, but also cause incalculable harm to the public perception of
the attorney general’s office and those government agencies, departments, and
institutions that the attorney general advises and represents.
{¶ 24} Although we have imposed public reprimands or fully stayed
suspensions for other public officials who have engaged in comparable
misconduct, their misconduct is factually distinguishable from Dann’s. In
Disciplinary Counsel v. Taft, 112 Ohio St.3d 155, 2006-Ohio-6525, 858 N.E.2d
414, we publicly reprimanded Governor Robert A. Taft II for filing false
disclosure statements. But the combined value of the omitted gifts was less than
$6,000, and the board attributed Taft’s nondisclosure “to oversight, rather than a
conscious effort to conceal certain relationships.” Id. at ¶ 6, 11.
{¶ 25} In contrast, Dann falsely reported that the Democratic Attorneys
General Association paid $7,687.14 for his travel to an Arizona seminar, thereby
concealing the fact that a company closely affiliated with a campaign contributor
paid more than $20,000 for his travel by private jet. Moreover, he admitted that
he was aware of the ethical problems posed by the supplementation of his
employees’ state salaries, stating, “We were operating in a gray area. I knew we
were operating in a gray area, even though I thought we might have been right,
that was—that in the position that I was in, that was the wrong decision to make
and I take full responsibility for it.” Thus, Dann’s conduct is more serious than
Taft’s.

9
 SUPREME COURT OF OHIO

{¶ 26} The conduct at issue in Disciplinary Counsel v. Carroll, 106 Ohio
St.3d 84, 2005-Ohio-3805, 831 N.E.2d 1000, ¶ 4, is likewise distinguishable from
the facts of this case. Carroll submitted 11 inaccurate timesheets while serving as
the executive director of the Ohio State Barber Board. On some of them, he
claimed compensatory time in a manner inconsistent with a directive issued by the
Ohio Department of Administrative Services, and on others, he claimed to have
worked full days for the Barber Board, when he had actually spent part of those
days attending court proceedings for private legal clients. Id.
{¶ 27} The board found that Carroll’s errors were the result of deficient
bookkeeping, rather than a desire to receive pay for work that he did not perform.
Id. at ¶ 10. In light of this fact and numerous mitigating factors, including
Carroll’s full cooperation in the disciplinary investigation, his payment of
restitution before any criminal or disciplinary charges were brought against him,
genuine remorse, his explanation of his actions without trying to excuse them, his
service to needy clients in a rural county, the absence of harm to his clients, his
good character and reputation, and the imposition of criminal sanctions, the board
recommended, and we agreed, that a six-month stayed suspension was the
appropriate sanction. Id. at ¶ 10-12, 15.
{¶ 28} In notable contrast to Dann’s position as the attorney general,
neither Taft nor Carroll held public offices that required them to be licensed
attorneys or to actively engage in the practice of law. See Taft at ¶ 1; Carroll at
¶ 3, R.C. 4709.05(G). And neither of them had a record of discipline for prior
misconduct, as Dann does. Taft at ¶ 10; Carroll at ¶ 10.
{¶ 29} The conduct at issue in Disciplinary Counsel v. Forbes, 122 Ohio
St.3d 171, 2009-Ohio-2623, 909 N.E.2d 629, ¶ 1, 11-12, 23-24, was in some ways
more egregious than Taft’s, Carroll’s, or Dann’s because Forbes accepted gifts
that were intended to obtain a substantial and improper influence over the
performance of his duties as a member of the Bureau of Workers’ Compensation

10
 January Term, 2012

Oversight Commission, knowingly failed to disclose those gifts on his financial-
disclosure statements, and attempted to explain away his criminal convictions for
that conduct. Id. at ¶ 11, 19. Nonetheless, we found that the numerous mitigating
factors, including the absence of a prior disciplinary record, full cooperation in the
investigation and disciplinary proceedings, the payment of restitution to the
bureau, positive character and reputation evidence, the imposition of criminal
penalties, and Forbes’s long history as a prominent attorney and defender of civil
rights in Cleveland outweighed the sole aggravating factor—Forbes’s refusal to
acknowledge the wrongful nature of his conduct. Id. at ¶ 19, 24-26. Although the
board recommended only a public reprimand for Forbes’s misconduct, id. at ¶ 17,
we imposed a six-month stayed suspension. Id. at ¶ 28.
{¶ 30} In contrast to the public reprimand in Taft and the fully stayed
suspension imposed in Carroll and Forbes, we imposed an actual six-month
suspension in Disciplinary Counsel v. Engel, 132 Ohio St.3d 105, 2012-Ohio-
2168, 969 N.E.2d 1178, for an attorney found to have engaged in conduct
prejudicial to the administration of justice and adversely reflecting on his fitness
to practice law during his tenure as chief legal counsel for the Ohio Department of
Public Safety (“DPS”). Id. at ¶ 13. In contrast to Dann’s two first-degree
misdemeanor convictions, Engel was convicted of three third-degree
misdemeanor counts of disclosing confidential information belonging to the
inspector general. He had recklessly placed an e-mail filter that captured e-mails
sent to DPS employees by the inspector general’s office, sent the captured
information to himself and several other persons, and left that filter in place even
after he discovered that it had intercepted and disseminated confidential
information. Id. at ¶ 2, 5. In Engel, we noted the absence of any aggravating
factors and the presence of substantial mitigating factors—including cooperation
in the disciplinary proceedings, the imposition of criminal sanctions, the absence
of a dishonest or selfish motive, evidence of Engel’s good character, and his

11
 SUPREME COURT OF OHIO

significant pro bono work. Id. at ¶ 9, 11. But in contrast to Taft’s inadvertent
failure to disclose, we found that Engel’s reckless conduct and its prejudicial
effect on the administration of justice warranted an actual suspension from the
practice of law rather than the six-month stayed suspension sought by relator and
the public reprimand recommended by the board. Id. at ¶ 10, 12-13.
{¶ 31} While Dann has offered substantial mitigating evidence, he has
previously been disciplined by this court, he has admitted that he knowingly
engaged in the conduct that resulted in his criminal conviction for soliciting
improper compensation, and his conduct with respect to his financial-disclosure
statements was at best reckless. He also engaged in this unlawful conduct while
serving as the state’s chief legal officer.
{¶ 32} Having considered Dann’s conduct, the applicable aggravating and
mitigating factors, and the sanctions imposed for comparable misconduct, we find
that the board properly weighed the aggravating and mitigating factors present in
this case. Therefore, we overrule Dann’s objections, concur with the findings of
the board, and agree that a six-month actual license suspension is the appropriate
sanction for Dann’s misconduct.
{¶ 33} Accordingly, we suspend Marc Edward Dann from the practice of
law in Ohio for six months. Costs are taxed to Dann.
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 Joseph M. Caligiuri,
Senior Assistant Disciplinary Counsel, for relator.
James E. Arnold & Associates, L.P.A., and Alvin E. Mathews Jr., for
respondent.
______________________

12