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Cleveland Metropolitan Bar Association v. McFaul

December 3, 2008

CLEVELAND METROPOLITAN BAR ASSOCIATION
v.
MCFAUL.



ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Supreme Court, No. 07-084.

SYLLABUS BY THE COURT

Attorneys at law-Misconduct-Conduct adversely reflecting on fitness to practice law-Two-year stayed suspension.

Per curiam.

Submitted August 26, 2008

{¶1} Respondent, Kevin T. McFaul of Cleveland, Ohio, Attorney Registration No. 0033568, was admitted to the practice of law in Ohio in 1986. The Board of Commissioners on Grievances and Discipline recommends that we suspend respondent's license to practice for two years and stay the suspension on remedial conditions, based on findings that he (1) took liberties on sign-in sheets at a juvenile detention center to gain access for a client's girlfriend and (2) was convicted of attempted drug possession after years of alcohol and cocaine addiction. We find that respondent violated the Code of Professional Responsibility and agree that a two-year stayed suspension is appropriate.

{¶2} Relator, Cleveland Metropolitan Bar Association, charged respondent with three counts of professional misconduct, later dismissing the allegations in Count II. A panel of the board heard the case, making findings of misconduct and recommending the two-year suspension, stayed on conditions including monitored probation and drug screening. The board accepted the panel's findings and recommendation.

{¶3} The parties have jointly waived objections and moved for our adoption of the board's report.

I. Misconduct

A. Count I

{¶4} While representing Jose Reyes in September 2006, respondent allowed Reyes's girlfriend, Whitney Matta, to pose as a legal assistant so that she could visit Reyes in the county juvenile detention center. Although regulations limited visitors other than detainees' legal representatives, respondent passed two checkpoints during restricted hours, signing in Matta first as his "legal assistant" and then as his "paralegal." Matta was not technically in respondent's employ, although she had helped him with his investigation in Reyes's case, and respondent had credited Reyes $250 for Matta's services.

{¶5} The parties stipulated and the board found that respondent's misrepresentation violated DR 1-102(A)(6) (prohibiting conduct that adversely reflects on a lawyer's fitness to practice law). We accept this finding of misconduct. The parties also stipulated that relator had dismissed a charged violation of DR 1-102(A)(4) (prohibiting conduct involving dishonesty, fraud, deceit, or misrepresentation). The board mistakenly stated that the parties had stipulated to that misconduct and found a violation of that rule. We reject that finding.

B. Count III

{¶6} Respondent has been addicted to alcohol and crack cocaine for many years. In November 2006, he was indicted on two counts of possession of drugs in violation of R.C. 2925.11. In May 2007, respondent pleaded guilty to a reduced charge of attempted drug possession, a first-degree misdemeanor. Respondent was sentenced to a jail term of six months, which the court suspended, and was placed on probation for five years.

{ΒΆ7} Among the terms of respondent's probation are the requirements that he perform 50 hours of community service, submit to random drug testing, successfully complete a substance-abuse treatment program, including a minimum of six months of inpatient treatment, and attend aftercare and outpatient treatment as necessary for his recovery. ...


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