[Cite as Disciplinary Counsel v. Smith, 128 Ohio St.3d 390, 2011-Ohio-957.] 

DISCIPLINARY COUNSEL v. SMITH. 

[Cite as Disciplinary Counsel v. Smith, 128 Ohio St.3d 390, 2011-Ohio-957.] 

Attorneys — Misconduct — Felony conviction for tax fraud and impeding IRS 

investigation — Indefinite license suspension ordered, with credit for time 

served under interim suspension, but petition for reinstatement not 

permitted until completion of supervised release and restitution agreement 

with federal government. 

(No. 2010-1888 — Submitted January 4, 2011 — Decided March 9, 2011.) 

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and 

Discipline of the Supreme Court, No. 10-029. 

__________________ 

Per Curiam. 

{¶ 1} Respondent, Joseph Harold Smith of Avon, Ohio, Attorney 

Registration No. 0041412, was admitted to the practice of law in Ohio in 1989. 

On April 24, 2009, we suspended respondent’s license to practice on an interim 

basis pursuant to Gov.Bar R. V(5)(A)(4) upon receiving notice that he had been 

convicted of a felony. See In re Smith, 121 Ohio St.3d 1456, 2009-Ohio-1891, 

905 N.E.2d 195. 

{¶ 2} In April 2010, relator, Disciplinary Counsel, filed a complaint 

charging respondent with four violations of the Code of Professional 

Responsibility arising from the conduct that resulted in his federal convictions: 

failing to accurately report his income to the Internal Revenue Service (“IRS”), 

conspiring to defraud the IRS, and corruptly endeavoring to obstruct and impede 

the ensuing IRS investigation. 

{¶ 3} A panel of the Board of Commissioners on Grievances and 

Discipline accepted the parties’ agreed stipulations of fact and misconduct and the 
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recommendation that respondent be indefinitely suspended from the practice of 

law in Ohio with credit for time served under his interim suspension. The panel, 

however, recommended that respondent not be permitted to apply for 

reinstatement until he completes his federal supervised release and enters into an 

agreement with the federal government for payment of restitution. The board has 

accepted the panel’s findings and its recommended sanction, as do we. 

Misconduct 

{¶ 4} The parties have stipulated that from 1983 through February 17, 

2003, respondent was employed by the Catholic Diocese of Cleveland. He began 

as the diocese treasurer. By 2000, he had been promoted to chief financial 

officer, and was finally named financial and legal secretary. In August 2006, a 

federal grand jury issued a 27-count indictment against respondent and a 

codefendant. Respondent was charged with one count of conspiracy to commit 

mail fraud, eight counts of mail fraud, eight counts of money laundering, one 

count of conspiring to defraud the IRS, four counts of making false tax returns, 

and one count of corruptly endeavoring to obstruct and impede an IRS 

investigation. 

{¶ 5} A jury found respondent guilty of one count of conspiracy to 

defraud the IRS, four counts of making false tax returns, and one count of 

corruptly endeavoring to obstruct and impede an IRS investigation. He was 

acquitted of mail fraud and conspiracy to commit mail fraud, and the court 

dismissed the money-laundering charges. 

{¶ 6} At the panel hearing, respondent testified that the conduct leading 

to his federal convictions began in the late 1990s when he received a series of 

offers to go into private or public practice. According to respondent, the priest 

who oversaw respondent’s employment did not want respondent to leave the 

diocese and agreed to pay him approximately $250,000 annually, but stated that 

this compensation could not go through the diocese payroll. To conceal 
January Term, 2011 

3 

respondent’s compensation, respondent and his codefendant, who provided 

comptroller services for the diocese through his company, moved money from the 

diocese, through the codefendant’s company, and into two businesses owned by 

respondent. Respondent failed to pay taxes on this compensation, and while 

representing respondent in a 1999 audit, the codefendant presented fraudulent 

documentation of expenses purportedly incurred by respondent and falsely stated 

that respondent had no sources of income other than those reported on his tax 

return. 

{¶ 7} Respondent was sentenced to one year and one day in federal 

prison and was ordered to perform 150 hours of community service. He was also 

ordered to pay restitution of $395,154 to the IRS, based on the statutory default 

tax rate of 28 percent as applied to his unreported income of $1,411,265. 

Respondent was released from the federal prison in Morgantown, West Virginia 

on November 14, 2009, and stayed at a halfway house in Cleveland for 

approximately two months. He is currently serving a two-year period of 

supervised release that will terminate in January 2012. At the time of the panel 

hearing, he had paid approximately $2,000 in restitution, and upon the conclusion 

of his supervised release, he will be required to enter into an agreement with the 

IRS for continued payment of restitution. 

{¶ 8} The panel and board concluded that the parties’ stipulated facts and 

exhibits and respondent’s testimony clearly and convincingly established that 

respondent’s conduct violated DR 1-102(A)(3) (prohibiting a lawyer from 

engaging in illegal conduct involving moral turpitude), 1-102(A)(4) (prohibiting a 

lawyer from engaging in conduct involving dishonesty, fraud, deceit, or 

misrepresentation), 1-102(A)(5) (prohibiting a lawyer from engaging in conduct 

that is prejudicial to the administration of justice), and 1-102(A)(6) (prohibiting a 

lawyer from engaging in conduct that adversely reflects on the lawyer’s fitness to 

practice law). We accept these findings of fact and misconduct. 
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Sanction 

{¶ 9} When imposing sanctions for attorney misconduct, we consider 

relevant factors, including the ethical duties that the lawyer violated and the 

sanctions imposed in similar cases. Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio 

St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶ 16. In making a final 

determination, we also weigh evidence of the aggravating and mitigating factors 

listed in Section 10(B) of the Rules and Regulations Governing Procedure on 

Complaints and Hearings Before the Board of Commissioners on Grievances and 

Discipline (“BCGD Proc.Reg.”). Disciplinary Counsel v. Broeren, 115 Ohio 

St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21. 

{¶ 10} Respondent has admitted that he engaged in a course of conduct 

designed to conceal the true value and source of the compensation he received for 

services provided to the Catholic Diocese of Cleveland, that he failed to 

accurately report his income to the IRS, and that during an IRS audit, his agent 

falsely stated that all of respondent’s sources of income were reported on his tax 

return. As a result of this conduct, respondent has been convicted of conspiracy 

to defraud the IRS, making false tax returns, and corruptly endeavoring to 

obstruct and impede an IRS investigation. He has served a federal prison 

sentence, has spent time in a halfway house, will remain on supervised release 

until January 2012, and has been ordered to pay almost $400,000 in restitution to 

the IRS. 

{¶ 11} As aggravating factors, the parties stipulated and the panel and 

board found that respondent had acted with a dishonest or selfish motive and had 

engaged in a pattern of misconduct. See BCGD Proc.Reg. 10(B)(1)(b) and (c). 

Mitigating factors include respondent’s lack of a prior disciplinary record, his full 

and free disclosure to Disciplinary Counsel and cooperative attitude toward these 

proceedings, and evidence of his good character and reputation, including letters 

from an auxiliary bishop of the Catholic Diocese of Cleveland and a paralegal, 
January Term, 2011 

5 

both of whom worked with respondent at the diocese, and a family friend who is 

also an attorney. See BCGD Proc.Reg. 10(B)(2)(a), (d), and (e). The panel and 

board also found that other penalties had been imposed, including incarceration. 

See BCGD Proc.Reg. 10(B)(2)(f). 

{¶ 12} In light of these factors and our precedent, the board recommends 

that we adopt the parties’ recommendation to indefinitely suspend respondent, 

with credit for time served under his interim suspension, but suggests that we 

condition his reinstatement upon completion of his federal supervised release and 

consummation of a final restitution agreement with the federal government. 

{¶ 13} In Dayton Bar Assn. v. Brunner (2001), 91 Ohio St.3d 398, 746 

N.E.2d 596, we imposed an indefinite suspension with credit for time served 

under an interim felony suspension on an attorney who had violated DR 1-

102(A)(4) by structuring and orchestrating a commercial real estate transaction in 

contravention of federal regulations that prohibited the seller from financing 100 

percent of the purchase price. Mitigating factors in Brunner included the 

respondent’s cooperation with the federal investigation, his completion of a 

federal prison term, his halfway-house confinement, and his payment of his 

criminal fines. 

{¶ 14} More recently, in Cincinnati Bar Assn. v. Kellogg, 126 Ohio St.3d 

360, 2010-Ohio-3285, 933 N.E.2d 1085, we sanctioned an attorney for his role in 

a scheme to shield $14 million of his employer’s assets from the Federal Trade 

Commission and future legal claims, concluding that his conduct, which resulted 

in multiple federal felony convictions, violated DR 1-102(A)(3) through (5), as 

well as 7-102(A)(7) (prohibiting a lawyer from counseling a client in conduct he 

knows to be illegal) and (8) (prohibiting a lawyer from knowingly engaging in 

illegal conduct), and 7-109(A) (prohibiting a lawyer from suppressing evidence 

he has an obligation to produce). Kellogg at ¶ 10, 12. Citing Kellogg’s assistance 

to the employer’s bankruptcy trustee, which helped preserve the jobs of more than 
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200 innocent employees, his cooperation in a related federal investigation, and 

evidence of his good character, we imposed an indefinite suspension rather than a 

permanent disbarment. Kellogg at ¶ 25-26. Observing, however, that Kellogg 

had served less than one year of his three-year term of federal supervised release 

at the time of our decision, we conditioned his reinstatement upon completion of 

that term. Kellogg at ¶ 11, 26. 

{¶ 15} Here, in contrast, respondent’s license to practice law has been 

suspended for almost two years, and respondent has accepted responsibility and 

expressed genuine remorse for his misconduct. Moreover, his supervised release 

is scheduled to terminate in January 2012. Under these facts, we agree that an 

indefinite suspension with credit for time served, with reinstatement conditioned 

upon both the completion of federal supervised release and execution of a final 

agreement for payment of restitution, is the appropriate sanction for respondent’s 

misconduct. 

{¶ 16} Accordingly, Joseph Harold Smith is hereby indefinitely 

suspended from the practice of law in Ohio. He shall receive credit for time 

served under his interim suspension, but he shall not be permitted to petition for 

reinstatement until he has completed his federal supervised release and entered 

into a final agreement with the federal government for payment of restitution. 

Costs are taxed to respondent. 

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. 

Joseph H. Smith, pro se. 

______________________