BEFORE THE BOARD OF COMMISSIONERSON

GRIEVANCES AND DISCIPLINEOF

THE SUPREME COURT OF OHIO

In Re:

Complaint against

Joshua Adam EngelAttorney Reg. No. 0075769

Resnondent,

Disciplinary Counsel

Relator.

OVERVIEW

Case No. 11-004

Findings of Fact,Conclusions of Law andRecommendation of theBoard of Commissioners onGrievances and Discipline ofthe Supreme Court o io

While serving as Chief Counsel to the Ohio Department of Public Safety ("DPS"),

Respondent put an interception device (hereinafter "filter") on all computers of DPS staff

members. The filter captured confidential emails sent by the Ohio Inspector General's Office

("OIG") to certain DPS employees engaged in confidential work for the OIG. The captured

communications were diverted to Respondent and other DPS employees selected by Respondent

to also receive them. The captured information related to ongoing confidential criminal

investigations and grand jury proceedings by the United States Attorney or the United States

Department of Justice. Distribution of such information to unauthorized persons was unlawful.

Respondent's initial decision to use a filter was made in a volatile situation where the

media was releasing confidential information and in a time of inter-agency rivalry and conflict.

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Respondent was concerned about the integrity of DPS internal operations and felt it imperative to

ensure that DPS was not the source of leaked material.

Respondent ultimately recognized that the filter was selecting and distributing

confidential information to persons without authorization to receive such matters. Respondent

had not originally anticipated such would be the case. However, when such disclosure became

apparent, Respondent did not immediately remove the filter or otherwise prevent the unlawful

distribution of the information.

As a result, Respondent was terminated from his position and ultimately pled guilty to

three misdemeanor charges. On October 26, 2010, the Court ordered a thirty-day suspended jail

sentence and a $750 fine.for each count.

Pursuant to this conviction, the office of Disciplinary Counsel charged Respondent with

violating Prof. Cond. R. 8.4(d) [conduct that is prejudicial to the administration of justice] and

Prof. Cond. R. 8.4(h) [conduct that adversely reflects on the lawyer's fitness to practice law].

At its June 9, 2011 meeting, the Board of Commissioners rejected the consent to

discipline, filed on April 25, 2011, because it felt the charges against Respondent, a public

official, warranted strict scrutiny and because the agreed stipulations presented questions of fact

about which the panel needed to personally question Respondent before deciding the appropriate

sanetion.

A hearing was held at the Ohio Judicial Center on August 30, 2011. The hearing panel

consisted of Judge Beth Whitmore, Larry R. Elleman, and Lynn B. Jacobs, chair. The panel

heard testimony from Respondent and three character witnesses, including his wife. The record

was left open for submission of a character letter (in addition to the eight in Relator's exhibits)

from Judge Rachel Hutzel, which later arrived in the form of an affidavit.

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Relator recommended the sanction of six-month suspension, stayed in its entirety, while

Respondent proposed a public reprimand. Accepting the agreed stipulations and exhibits, this

panel also considered the absence of any aggravating factors as well as the presence of numerous

mitigating factors. Based on the stipulations in evidence, the panel finds the violations as alleged

were supported by clear and convincing evidence. After review of all the evidence, the panel

finds that a public reprimand is the appropriate sanction for Respondent.

FINDINGS OF FACT

{¶1} Respondent is a 1995 graduate of Harvard Law School and former associate at the

Boston law firm, Choate, Hall & Stewart where he engaged in extensive pro bonowork for the

ACLU. He was admitted to practice law in Ohio in 2003. He and his wife moved to Ohio so that

she could accept a tenure track position in the English department at Wilmington College. He

was hired as an Assistant Prosecutor by the Warren County Prosecuting Attorney:

{1[2} During his five years there, he became the office's expert on domestic violence

and stalking and initiated an appellate division that was handling twelve cases when he began

and grew to over 100 cases per year during his tenure.

{¶3} In 2006, Respondent was hired as Chief Legal Counsel to DPS. While

Respondent was in this position, the events occurred that caused the filing of the disciplinary

complaint.

{Q4} The stipulated facts show that on October 20, 2010, a three-count bill of

information was filed against Respondent alleging that between October 2009 and September

2010, Respondent recklessly disclosed confidential information acquired by the OIG in the

course of investigations being conducted by that office. State v. Engel, Franklin County

Common Pleas Court, Case No. 10CR-10-6185.

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{¶5} The confidential information disclosed by Respondent came from investigations

conducted by the OIG, the Ohio Ethics Commission, the U.S. Attorney's office, and the U.S.

Department of Justice. This information was disclosed to Respondent and other employees of

DPS designated by Respondent to be recipients of this information.

{¶6} Confidential information was obtained by Respondent after he instructed the DPS

information technology department to create the filter. The filter also caused a copy of

confidential e-mails to be sent to other DPS employees not authorized to receive such

information.

{¶7} This happened because several persons, working in conjunction with the OIG,

were employees of the DPS and had DPS e-mail addresses. Thus, the "filter" intercepted

confidential communications solely between OIG staff about matters unrelated to the DPS.

{¶8} The communications received by Respondent and/or his designees included OIG

and/or Ohio Ethics Commission investigatory materials that are considered confidential under

the Ohio Revised Code and the U.S. Attorney and/or U.S. Department of Justice's criminal

investigatory materials related to confidential grand jury proceedings.

{¶9} Disclosure of OIG confidential information is a second degree misdemeanor

punishable by up to 90 days in jail and a fine of up to $750.

{¶10} On October 20, 2010, a plea agreement was filed in Franklin County Common

Pleas Court. Under the terms of this agreement, Respondent agreed to plead guilty to the three

misdemeanor charges.

{¶11} On October 26, 2010, Respondent pled guilty to the three-count information, and

the court ordered a thirty-day suspended jail sentence and a $750 fine for each of the three

counts.

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{¶12} At the hearing, Respondent freely admitted to installing a filter on e-mails of DPS

members. He claimed, correctly, that public employers possess a legal right to monitor the

emails of employees. Such a right is explicit state and departmental policy, which allows no

right of privacy to e-mails on the state e-mail system. In addition, when logging in each day,

each employee is required to check an acknowledgement of that policy.

{¶13} Respondent stated that the specific reason for installing the filter was that the

Columbus Dispatch had received numerous "leaks" of investigatory information during the

course of confidential investigations by OIG and DPS personnel prior to the DPS Director's

knowledge of it.

{¶14} Respondent explained that the OIG is an autonomous investigator appointed

directly by the Governor to expose wrongdoing either within the law enforcement community or

in any other state offices.

{¶15} Respondent testified that the OIG had an insufficient number of its own

investigators and would "cherry-pick" members of the Ohio Highway Patrol (employees of DPS)

to conduct these investigations without the knowledge and consent of the Director of DPS.

{1116} Respondent testified that he had repeated meetings with his Director (DPS), the

OIG, and the Governor's office to object to this secretive process because it impeded his ability

as Chief Counsel of DPS to legally protect the borrowed employees or account for their work

product.

{¶17} Both witnesses McCann and Respondent testified that there was no defined

procedure to resolve disputes between the OIG (a totally autonomous entity reporting only to the

Governor) and DPS. Had there been such a mechanism, there would have been no need for the

filter.

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{¶18} As chief counsel of the DPS, Respondent became increasingly concerned and

frustrated when the leaks occurred. He testified to the damage done by such leaks:

[M]y staff would come to me and say, we don't feel that we can send candid legaladvice to people because it won't be kept confidential. And we knew it wouldn'tbe kept confidential because occasionally Mr. Ludlow [a Columbus Dispatchreporter] would make a public records request and it would be "I would like to seethe November 5, 1988 e-mail written by the attorney over [sic]." And so this hada rather significant chilling effect on the ability of the ten attorneys I supervise toprovide candid legal advice to people within the department. (August 30, 2011Hearing Tr. at 74-75)

{¶19} Respondent described the problems and legal dangers to which DPS members

could be exposed if they were denied consultation with DPS attorneys. He described the

jurisdictional differences between OIG and DPS employees that could result in legal harm to

unknowing DPS investigators working for the OIG, as well as possible denial of their Fifth

Amendment rights pursuant to the Garrity decision of the United States Supreme Court.

{¶20} Respondent also felt that if OIG needed additional investigators, it should appeal

to the General Assembly for additional funding rather than take these employees away from their

duties at DPS.

{¶21} Respondent, as well as Michael McCann, a former colleague at DPS, testified to

the poor working relationship between the OIG and DPS and their consequential inability to

resolve differences together. Respondent described the DPS during this time as a troubled

agency with many conflicts within the department. (August 30, 2011 Hearing Tr. at 87-88)

{1122} The filter was successful in "trapping" emails sent to members of the DPS.

Unfortunately, it also resulted in Respondent and his information technology designees receiving

confidential information to which they were not entitled.

{1123} Responding to panel members' questions about the length of time and/or number

of such confidential e-mails he intercepted, Respondent initially testified that he only remembers

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one for sure. He then acknowledged that there may have been more than one because the "turf

war" was ongoing for more than a year.

{¶24} Respondent readily acknowledged that he should have terminated the filter

immediately but failed to do so. He could not explain exactly why he failed to do so. The panel

believes the stress of the "turf war" undoubtedly obscured his focus. We believe it was not his

knowing intent to "trap" confidential information.

{1[25} Respondent testified:

I know now in hindsight I should have recognized that this was going to otherpeople and terminated the e-mail filtering program and tried to find some otherway to accomplish our goals. (August 30, 2011 Hearing Tr. at 82)

I didn't stop it because at the time--you know, at the time it wasn't the focus thatwe were under; and we were looking for other things and dealing with otherproblems, and it slipped through. We should have realized that this should havebeen stopped. (August 30, 2011 Hearing Tr. at 83)

CONCLUSIONS OF LAW

{¶26} The panel accepted the parties' stipulations and found independently, by clear and

convincing evidence, that Respondent's conduct violated Prof. Cond. R. 8.4(d) [conduct that is

prejudicial to the administration of justice] and Prof. Cond. R. 8.4(h) [conduct that adversely

reflects on the lawyer's fitness to practice law].

AGGRAVATION AND MITIGATION

{¶27} The panel accepts the agreed stipulations as to mitigation pursuant to BCGD Proc.

Reg. 10(B):

• No prior disciplinary record;

• Cooperation with the disciplinary process; and

• Respondent's criminal conviction and sentence constitutes another penalty a_nd/or

sanction imposed for this conduct.

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{¶28} As a result of hearing testimony, the panel also finds the following mitigating

factors:

• Absence of a dishonest or selfish motive. The Panel is satisfied with Respondent's

testimony that he didn't delete the filter after first discovering that it had resulted in a

breach of confidentiality because he was focused on more pressing issues of the

moment.

• Character or reputation. The panel notes the words of Judge Rachel A. Hutzel

represent the sentiment of the other character witnesses. She says:

In the years that I have known Mr. Engel, I have never had cause toquestion his ethics. I believe that his ethics are above reproach and that heis an extraordinarily caring and competent attorney. Respondent's Noticeof Filing of Affidavit of Judge Rachel A. Hutzel in Support ofRespondence [sic] Joshua Engel, Exhibit A at ¶ 9.

{¶29} The panel finds no aggravating factors and no harm to any individual other than

Respondent himself. The panel acknowledges the potential for inchoate harm whenever

confidential information is improperly disclosed. However, there is nothing in the record to

establish any actual harm, and we will not increase a sanction based on a potential for injury.

RECOMMENDED SANCTION

{¶30} Respondent recommends a sanction of a public reprimand. Relator recommends

that a sanction of a six-month suspension, all stayed, be imposed. We agree with Respondent

that the sanction be a public reprimand. We make this recommendation because:

a. All character witnesses, through both live testimony and written letters, attest to

Respondent's honesty, integrity, and dedication. We note the record contains ample

evidence of his past public service, beginning in college in 1992 with an award of a

Truman scholarship at the University of Pennsylvania. He graduated magna cum

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laude from that university as well as cum laude from Harvard Law School. In

addition, we acknowledge that the stress of his circumstances and his conviction for a

criminal offense have imposed a sufficient sanction upon him.

b. His personal suffering, beginning with job-related stress in 2008, and as exacerbated

by both criminal and disciplinary proceedings, have resulted in severe depression and

suicidal thoughts. We note that he voluntarily sought psychiatric care and

psychological counseling before being terminated from his position at DPS in late

2010. Moreover, there is no claim by Relator that Respondent is unfit to practice law.

{1131} Respondent stated that his greatest regret is that he can no longer dedicate his

professional life to the service of the public good. His genuine remorse was evident. He is

currently self-employed in the general practice of law and is co-owner of a private consulting

firm for law enforcement and other security issues and investigations. He also performs

significant pro bono work for the citizens of Clinton County.

{¶32} The panel finds Disciplinary Counsel v. Taft, 112 Ohio St.3d 155, 2006-Ohio-

6525 to be more persuasive precedent than Disciplinary Counsel v. Forbes, 122 Ohio St.3d 171,

2009-Ohio-2623. Whereas Governor Taft actually received tangible personal benefits for his

violations of Prof. Cond. R. 8.4(h), this Respondent not only received no benefits, he actually

caused great harm to himself and to his family due to his loss of his position as Chief Counsel.

Unlike Govemor Taft, this Respondent also violated Prof. Cond. R. 8.4(d) [conduct prejudicial to

the administration of justice]. However, because no harm was done to an individual, the panel

concludes that a public reprimand is the appropriate sanction.

{¶33} Therefore, this panel recommends that Respondent be issued the sanction of a

public reprimand in this matter.

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BOARD RECOMMENDATION

Pursuant to Gov. Bar R. V, Section 6(L), the Board of Commissioners on Grievances and

Discipline of the Supreme Court of Ohio considered this matter on October 7, 2011. The Board

adopted the Findings of Fact, Conclusions of Law and Recommendation of the panel and

recommends that Respondent, Joshua Adam Engel, be publicly reprimanded in the State of Ohio.

The Board further recommends that the cost of these proceedings be taxed to Respondent in any

disciplinary order entered, so that execution may issue.

Pursuant to the order of the Board of Commissioners onGrievances and Discipline of the Supreme Court of Ohio,I hereby certify the foregoing Findings of Fact, Conclusionsof Law, and Recommendations as those of the Board.

.OWE, SecretaryRICHARD AWBoard of Commissioners onGrievances and Discipline ofthe Supreme Court of Ohio

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BEFORE THE BOARD OF COMMISSIONERSON GRIEVANCES AND DISCIPLINEOF THE SUPREME COURT OF OHIO

In re:

Complaint against Joshua Engel

Respondent

Disciplinary Counsel

Relator

Case No. 11-004

FILEDSEP f 5 2011

BQARD Qr COMMISSIONERSON GRIEVANCES & bISCIPLINE

MEMORANDUM OF RESPONDENT IN SUPPORT OF SANCTION

INTRODUCTION

Respondent, Joshua A. Engel, submits this Memorandum in Support ofdiscipline for apublic

reprimand. In the stipulated agreement, Respondent and Relator have stipulated to the facts,

violation, mitigation, and exhibits.

MEMORANDUM IN SUPPORT OF PUBLIC REPRIMAND

In this matter, Relator and Respondent stipulate and agree that the conduct of Respondent,

as recited in the complaint, violates the Rules of Professional Conduct: 8.4(d) [a lawyer shall not

engage in conduct that is prejudicial to the administration of justice] and 8.4(h) [a lawyer shall not

engage in conduct that adversely reflects on the lawyer's fitness to practice law].

STIPULATED FACTS

In support of finding the above violations, the parties have agreed to the following

uncontested facts in this matter: From 2007 until May 2010, Respondent was employed as Chief

400289

Legal Counsel for the Ohio Department of Public Safety (DPS). Respondent was demoted to staff

attorney in May 2010 and terminated by the DPS on September 29, 2010.

On October 20, 2010, a three-count information was filed against Respondent alleging that

between October 2009 and September 2010, Respondent recklessly disclosed confidential

information acquired by the Ohio Inspector General (OIG) in the course of investigations being

conducted by that office. State v. Engel, Franklin County Common Pleas Court, Case No.

10CR6185.

The confidential information disclosed by Respondent came from investigations being

conducted by the OIG, the Ohio Ethics Commission, the U.S. Attorney's office and the U.S.

Department of Justice. This information was disclosed to Respondent and other employees of the

DPS designated by Respondent to be recipients of this information. The confidential information

was obtained by Respondent after he requested a "filter" be created by DPS Information Technology

staff to intercept all emails sent by the OIG to the DPS. The filter caused a copy of these emails to

be sent to Respondent and/or his designees at the DPS.

Because several persons working in conjunction with the OIG were employees of the DPS

and had DPS email addresses, the filter intercepted confidential communications solely between OIT

staff about matters unrelated to the DPS. The communications received by Respondent and/or his

designee included OIT and/or Ohio Ethics Commission investigatory materials that are considered

confidential under the Ohio Revise Code and U.S. Attorney and/or U.S. Department of Justice

criminal investigatory materials related to confidential grand jury proceedings.

Disclosure of Inspector General Confidential Information is a second degree misdemeanor

punishable by up to ninety (90) days in jail and a fine of up to $750.00. On October 20,2010, a plea

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agreement was filed in Franklin County Conunon Pleas Court. Under the terms of this agreement,

Respondent agreed to plead guilty to the three misdemeanor charges. On October 26, 2010,

Respondent pled guilty to the three count information and the Court ordered a thirty-day suspended

jail sentence and a $750.00 fine for each count.

STIPULATED VIOLATIONS

Respondent's conduct violates the Rules of Professional Conduct: 8.4(d) [a lawyer shall not

engage in conduct that is prejudicial to the administration of justice] and 8.4(h) [a lawyer shall not

engage in conduct that adversely reflects on the lawyer's fitness to practice law].

STIPULATED MITIGATION

Respondent has no prior disciplinary record.

Respondent has cooperated in the disciplinary process.

Respondent's conviction and sentence constitute another penalty and/or sanction imposed

for this conduct.

Additionally, Relator and Respondent had stipulated and agreed that the appropriate sanction

in this matter was a public reprimand. The Board rejected this agreement. Thus, this matter was set

for a full hearing.

The following witnesses were called to testify at the hearing:

1. Christian Schock, Executive Director of the Clinton County Regional Planning

Commission

2. Joshua Engel, Respondent

3. Mike McCann, Former Chief of Staff of Ohio Department of Public Safety, thirteen

(13) years with the Columbus Police Department

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4. Laura Struve, Spouse of Respondent.

The following letters/affidavits of support were submitted on behalf of Respondent:

1. Dr. John Hawkins. Dr. Hawkins writes:

I have been treating Mr. Engel since May 2010 for anxiety anddepressive symptoms related to the circumstances that have led up tothe disciplinary findings he now faces. He carries the diagnosis ofMajor Depressive Disorder, single episode, mild. He has beencompliant with all treatment recommendations. He has respondedwell to a combination of medications plus therapy. He is now seenonly as needed and only takes sleep medication as needed.

I have found Mr. Engel to be a very genuine and caring person, whohas been deeply impacted by the degree of stress that he endured inhis previous job situation. He clearly has empathy and is sincere inhis desire to improve as it relates to understanding how he reacts andmanages stressful situations.

I do hope, for Mr. Engel's sake and the sake of his family, that hispositive attributes, willingness to take responsibility and independentefforts to seek help, will be fully taken into consideration. I am alsohopeful that he will no longer have to endure any ongoing, drawn out,continuing legal actions, as this has made it difficult for Mr. Engel'ssymptoms to be fully resolved, so that he can focus on his new joband the task of raising his family.

2. Leslie Meyer, Attorney. Attorney Meyer writes:

I worked with Joshua Engel at the Warren County Prosecutor'sOffice, where we both served as Assistant Prosecuting Attomeys. Weworked together in that capacity from 2002 until he left in 2007. Iworked closely with Joshua Engel during that time. We tried multiplecases together and conferred often regarding legal issues we faced asAssistant Prosecuting Attorneys with felony caseloads. I alsoconsider Joshua Engel to be a close friend. I know Joshua Engel tobe an attorney who is very connnitted to public service. I knowJoshua Engel to be professional, dedicated, and ethical.

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3. Paul Moke, Attorney. Attorney Moke writes:

In the summer of 2002, I met Joshua Adam Engel in Wilmington,Ohio, and he has been my professional colleague and friend since thattime.

For the past eight years, Joshua Adam Engel has given selflessly ofhis time in providing professional assistance to the WilmingtonCollege Mock Trial Team. He has done a masterful job of explainingthe rules of evidence, giving advice about trial strategy, helping theteam frame a theory of its cases, and serving as presiding judge inscrimmages and invitationals.

The mock trial program has helped ten Wilmington College studentsqualify for admission to law school and prepare themselves forcareers in the field of law. Of these ten students, six are nowmembers of the Ohio Bar, and the remaining four currently are in lawschool.

Joshua Adam Engel has often performed this work withoutcompensation, and his assistance to the Wilmington College MockTrial Team is indicative of a truly outstanding level of communityinvolvement and professionalism.

I have asked Joshua Adam Engel to provide me with legal advice onmany occasions, and in each instance, this advice has been thoughtful,informed, and ethical. At no time have I ever witnessed anywrongdoing or ethically questionable activity.

4. Charles Rittgers, Attorney. Attorney Rittgers writes:

I am a practicing attorney practicing law in the state of Ohio for 33years. I am Past President of the Ohio Association of CriminalDefense Lawyers and Past President of the Warren County BarAssociation.

I first met Joshua Engel when he began work as an AssistantProsecuting Attorney for the Warren County Prosecutor's Office in2002. As my opponent, I found him to be very courteous,professional, straightforward and honest.

Throughout the five years he was with the Warren CountyProsecutor's Office, we became friends and I then began to leam

400289

more about his commitment to public service. As an AssistantProsecutor, he was committed to furthering the goals of the OhioProsecuting Attomey's Association and he was given an award formeritorious service by that association.

5. Christine Savage, Attorney. Attomey Savage writes:

I have known Josh ("Josh") Engel since the Fall of 1992 when weboth enrolled as first year students at Harvard Law School. Josh andI had many classes together throughout our tenure at law school,frequently studied together, and he became one of my closest friendsduring that time.

When at law school, I learned that Josh and I also shared in commonthe fact that we were Harry S. Truman Scholars. The Hany S.Traman Scholars program is a highly competitive scholarshipprogram which provides financial support, principally for graduateeducation, and leadership training to individuals demonstrating acommitment to a career in public service. Approximately 60 TrumanScholars are named each year across the country.

Josh and I then worked together as summer associates-and office-mates-at Choate, Hall & Stewart during the summer of 1994,following our second year of law school. At the end of the summerassociate program, we both accepted offers to become associates atthe firm following graduation.

Over the nearly 19 years that I have known Josh, his desire to servethepubl-ic in some capacity has remained unwaver-ing. When he leftthe firm, he left to become an assistant district attorney in MiddlesexCounty in Massachusetts. When he moved to Ohio after his wifesecured a teaching position there, it came as no surprise that hewanted to remain a prosecutor and that he assumed a role as someoneknown for handling particularly disturbing cases involving domesticviolence.

Josh's dedication to public service, however, has frequently gonebeyond the scope of his employment. While Josh worked in privatepractice, he also served as a member of the Cambridge Police Reviewand Advisory Board, working to help ensure that the civil rights ofindividuals in Cambridge, where he lived at the time, were protectedand that police procedures were impoved upon where possible. Healso worked on pro bono matters while at the firm that involved

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matters handled jointly with the Massachusetts Chapter of theAmerican Civil Liberties Union, including at least one free speechcase. Josh also maintained a connection with the Truman ScholarshipFoundation, serving on regional scholar selection panels for a numberof years and hosting dinners for applicants.

6. Michael Taylor, former Police Officer for the Columbus Police Department. Mr.Taylor writes:

On a personal basis, after having interactions with Mr. Engel at theDepartment of Public Safety, I got to know him in an "unofficial"capacity. We would often talk about various subjects that includedpolitics, a favorite subject of mine. I came to know Mr. Engel as anhonest individual whose heart seems to be in the right place. He issomeone who is willing to entertain others' thoughts and ideas on aparticular subject, even when different from his. It is because of theseand other qualities, that in spite of the much publicized issues thathave brought Mr. Engel in front of this board, I asked Mr. Engel toserve as Chief Legal Counsel and Vice President of a security firmthat I was part of forming. Mr. Engel has been and will continue tobe an asset to this firm.

7. The Honorable Rachel Hutzel, Current 12' District Court of Appeals Judge andformer Warren County Prosecutor from 2003-2010. Judge Hutzel writes:

I became acquainted with Respondent, Joshua Engel, at the WarrenCounty Prosecutor's Office. Mr. Engel was employed as an AssistantCounty Prosecutor from 2002 through 2007. During that period, Isaw Mr. Engel on a daily basis and worked with him on many cases.Mr. Engel handled an adult misdemeanor docket for the first two (2)years that he was employed with the Prosecutor's Office and workedhis way up to adult felony and appellate dockets.

Mr. Engel earned my respect during his time at the Prosecutor'sOffice. Mr. Engel was so adept at research and writing that I put himin charge of our Law Clerk Program. In that capacity, he selected,trained and supervised many young law students who relied on himfor guidance. Mr. Engel turned this into a productive program fromwhich the Prosecutor's Office was able to hire many new lawyers.

I personally observed that Mr. Engel was greatly admired by regionalanti-domestic violence activists and victim advocates because of histenacity in prosecuting sexual assault and domestic violence cases.

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He was often asked to lecture at state and regional training programson the subject. In addition, Mr. Engel's courtroom skills wererecognized bymembers ofthe bench who appreciated his promptness,thoroughness and knowledge of evidentiary law.

Mr. Engel was an integral part of my office during the time that I wasan assistant and county prosecutor. In the years that I have known Mr.Engel, I have never had cause to question his ethics. I believe that hisethics are above reproach and that he is an extraordinarily caring andcompetent attorney.

Joshua Engel accepted full responsibility for this matter. The act of authorizing the filter was

legal. No employee had an expectation of privacy.

Respondent had no intent to violate any of the rules stated. Thus, Respondent would direct

the Board's attention to the State's IT policy. The State IT policy, ITP-E8, provides:

5.6 No Expectation of PrivacX. This policy serves as notice to publicservants that they shall have no reasonable expectation of privacy inconjunction with their use of state-provided IT resources. Contentsof state computers may be subject to review, investigation and publicdisclosure. Access and use of the Internet, including communicationby e-mail and instant messaging and the content thereof, are notconfidential, except in certain limited cases recognized by state orfederal law. The state reserves the right to view any files andelectronic communications on state computers, monitor and log allelectronic activities, and report findings to appropriate supervisorsand authorities.

Respondent would also direct the Board's attention to paragraph number 6 of the agreed

stipulations. Paragraph number 6 reads:

Because several persons working in conjunction with the OIG wereemployees of the DPS and had DPS e-mail addresses, the "filter"intercepted confidential communications solely between OIG staffabout matters unrelated to DPS.

400289 8

The mistake made by Respondent could have happened to anyone. However, having made

the mistake, Respondent failed to terminate the filter after leanring that unauthorized information

was captured.

Respondent received no personal benefit from this violation. His motive was to detennine

the source of public leaks of sensitive law enforcement information and investigations. Second,

Respondent has cooperated in the disciplinary process. Third, Respondent's convictions were for

misdemeanors. This less serious criminal offense might not normally result in discipline, but for

Respondent's position as a public official. Fourth, his conviction and sentence constitute another

penalty and/or sanction for his conduct. Fifth, there are no aggravating factors present in this matter.

Sixth, there is no evidence that it was Respondent's ori inal intention to access confidential

connnunications between 0IG staff and/or between OIT staff and non-DPS staff.'

Seventh, the American Bar Association Standards for Imposing Lawyer Sanctions § 5.23

indicates that a"reprimand is generally appropriate when a lawyer in an official or governmental

position negligently fails to follow proper procedures or rules, and causes injury or potential injury

to a party or to the integrity of the legal process."

Finally, there is prior case law that supports a public reprimand in this matter. In

Disciplinary Counsel v. Taft, 112 Ohio St.3d 155, 2006-Ohio-6525, 858 N.E.2d 414, Taft, while

serving as governor, failed to report gifts that he had received as governor as required by financial

disclosure laws. He subsequently pled no contest to four misdemeanor charges? As a result, Taft

'However, it is clear that after Respondent realized that his actions caused interception of these confidentialcommunications, he took no affinnative steps to end this improper interception.

ZIn Disciplinary Counsel v. Forbes, 122 Ohio St.3d 171, 2009-Ohio-2623, 909 N.E.2d 629, Forbes receiveda six month stayed suspension for misconduct that is distinguishable from the present matter. In addition to beingconvicted ofthe same misdemeanor violations as Taft, Forbes was also convicted of accepting gratuities offered to curryfavor and obtain substantial and improper influence in the performance of his duties as a public official.

400289 9

was found to have engaged in conduct that adversely reflected on his fitness to practice law in

violation of DR 1-102(A)(6) and received a public reprimand. Similarly, in the present matter,

Respondent was convicted of three misdemeanor charges for actions while serving as a government

official that adversely reflect on his fitness to practice law. In Akron Bar Assn. v. Finan, 118 Ohio

St.3d, 106, 2008-Ohio-1807, 886 N.E.2d 229, Finan improperly signed and notarized her client's

name to a factually-inaccurate affidavit submitted to a court. Finan case found to have violated DR

1-102(A)(5) and DR 1-12(A)(6), which are the same two ethical rules as Respondent has stipulated

to violating in the present matter. Finan received a public reprimand.

CONCLUSION

Relator and Respondent have stipulated and agreed that Respondent violated the Ohio Rules

of Professional Conduct. In light of the foregoing discussion, Respondent requests the Board of

Commissioners on Grievances and Discipline impose a public reprimand as the complete resolution

of this matter.

Respectfully submitted,

Lar". James (0021773)Chr(tina L. Corl (0067869)Crabbe, Brown & James, LLP500 South Front Street, Suite 1200Columbus, OH 43215Tel: (614) 229-4567Fax: (614) 229-4559

(614) 229-4562Email: Ijaines@cbjlawyers.com

ccorl a,cbjlawyers.com

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CERTIFICATE OF SERVICEThe undersigned hereby certifies that a copy of the foregoing document was served

electronically upon Panel Chair Lynn B. Jacobs, Esq., Judge Beth Whitmore, Lawrence R.Elleman, Esq., and Robert R. Berger, Esq., Assistant Disciplinary Counsel, this 15' day ofSeptember, 2011.

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