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Disciplinary Counsel v. Martyniuk

Supreme Court of Ohio

June 20, 2017

Disciplinary Counsel
v.
Martyniuk.

          Submitted March 1, 2017

         On Certified Report by the Board of Professional Conduct of the Supreme Court, No. 2016-015.

          Scott J. Drexel, Disciplinary Counsel, and Jennifer A. Bondurant, Assistant Disciplinary Counsel, for relator.

          Buckingham, Doolittle & Burroughs, L.L.C., and Peter Thomas Cahoon, for respondent.

          Per Curiam.

         {¶ 1} Respondent, Andrew Osyp Martyniuk, of Kent, Ohio, Attorney Registration No. 0064997, was admitted to the practice of law in Ohio in 1995. On November 20, 2015, we suspended his license to practice for an interim period pursuant to Gov.Bar R. V(18)(A)(1)(a) upon receiving notice that he had been convicted of multiple felonies. In re Martyniuk, 144 Ohio St.3d 1265, 2015-Ohio-4746, 45 N.E.3d 1013.

         {¶ 2} In April 2016, relator, disciplinary counsel, charged Martyniuk with violations of Prof.Cond.R. 8.4(b) (prohibiting a lawyer from committing an illegal act that adversely reflects on the lawyer's honesty or trustworthiness) and 8.4(h) (prohibiting a lawyer from engaging in conduct that adversely reflects on the lawyer's fitness to practice law) based on his criminal conduct. The Board of Professional Conduct found that Martyniuk committed the charged misconduct and recommended that he be indefinitely suspended from the practice of law with no credit for the time served under his interim felony suspension. We adopt the board's findings of fact, misconduct, and aggravating and mitigating factors and its recommended sanction.

         Misconduct

         {¶ 3} On September 29, 2014, Martyniuk pleaded guilty to 20 fourth-degree-felony counts of pandering sexually oriented material involving a minor in violation of R.C. 2907.322(A)(5). Martyniuk stipulated that he had knowledge of the character of the material or performance involved and that he knowingly solicited, received, purchased, exchanged, possessed, or controlled material that showed a minor participating or engaging in sexual activity, masturbation, or bestiality. As a result of that conduct, he was sentenced to a five-year prison term, which was suspended on the condition that he serve five years of community control, complete a sex-offender evaluation and follow all the evaluator's recommendations, and pay a fine of $5, 000 plus court costs. He was also required to register as a Tier II sex offender for a period of 25 years.

         {¶ 4} The parties stipulated that Martyniuk's conduct adversely reflects on his fitness to practice law in violation of Prof.Cond.R. 8.4(h), and the matter proceeded to a hearing before a three-member panel of the board. Consistent with our decision in Disciplinary Counsel v. Bricker, 137 Ohio St.3d 35, 2013-Ohio- 3998, 997 N.E.2d 500, the board expressly determined that Martyniuk's conduct involving pornographic materials relating to minors was sufficiently egregious to warrant finding the violation. It also found that by engaging in that criminal conduct, he committed an illegal act that adversely reflects on his honesty and trustworthiness in violation of Prof.Cond.R. 8.4(b).

         {¶ 5} We adopt the board's findings of fact and misconduct.

         Sanction

         {¶ 6} When imposing sanctions for attorney misconduct, we consider several relevant factors, including the ethical duties the lawyer violated, the aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions imposed in similar cases.

         {¶ 7} The parties stipulated and the board found that just one aggravating factor is present-Martyniuk committed multiple offenses. See Gov.Bar R. V(13)(B)(4). And the parties agree and the board found that the applicable mitigating factors include the absence of a prior disciplinary record, Martyniuk's full and free disclosure (including his November 2015 self-reporting of his convictions to relator) and cooperative attitude in the disciplinary proceedings, his acknowledgment of the ...


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