Crimes May Draw Disbarment
A bar discipline oral argument before the Ohio Supreme Court Tuesday
Columbus Bar Association v. Javier H. Armengau, Case No. 2019-0500
Franklin County
Javier Armengau objects to the disbarment proposed by the Ohio Board of Professional Conduct based on his criminal convictions. In July 2014, a Franklin County jury found Armengau guilty of rape, kidnapping, public indecency, two counts of gross sexual battery, and four counts of sexual imposition.
Attorney Loses Appeal, Sent to Prison
Following Armengau’s convictions, the Columbus Bar Association filed a disciplinary complaint against him in December 2014. The Supreme Court Rules for the Government of the Bar of Ohio mandates that the Board of Professional Conduct defer pending disciplinary hearings based on criminal convictions until all direct appeals have concluded.
In June 2017, the Tenth District Court of Appeals issued a decision in Armengau’s appeal. The court affirmed in part, reversed in part, and sent the case back to the trial court for resentencing. The Ohio Supreme Court declined to review Armengau’s appeal of the ruling.
At resentencing, Armengau received a 13-year prison sentence, was designated a Tier 1 sex offender, and will be subject to five years of postrelease control when released from prison.
Disciplinary Process Moves Forward
In July 2018, the board returned Armengau’s disciplinary case to the docket because his direct appeal of his conviction was done. In August, the board agreed to hold a hearing for Count 1 and a separate hearing on Counts 2 through 14. This case is based on Count 1, which involves Armengau’s convictions for eight felonies and one misdemeanor. (The other counts allege professional misconduct not directly related to the convictions.)
The board’s report notes that criminal convictions upheld on direct appeal are conclusive proof in a disciplinary proceeding. Armengau wanted to assert in the disciplinary proceedings that he is innocent, but the board states that it doesn’t have the authority or jurisdiction to address factual and legal issues resolved by his direct appeal.
The board found that, based on his convictions, Armengau violated the attorney conduct rule prohibiting an illegal act that reflects on the lawyer’s honesty or trustworthiness. The board also found two violations of the rule against conduct that adversely reflects on the lawyer’s fitness to practice law.
Board Reviews Aggravating and Mitigating Factors
The bar association pointed out to the board that Armengau’s victims were employees, clients, and client family members. Describing the record as “uniquely sparse,” the board panel that heard the disciplinary case turned to the Tenth District’s decision for additional facts to understand the nature of Armengau’s relationships with each of his victims. In one situation, Armengau was convicted of the rape and kidnapping of a woman who first had been a client, then an employee.
The board identified several aggravating circumstances, including the vulnerability of and harm to two victims who were Armengau’s clients. The board panel declined to accept as aggravating two factors the bar association suggested – that Armengau has refused to acknowledge the wrongful nature of his conduct and that he made false statements. The board report stated that it “decline[d] to strip [Armengau] of his belief in his innocence and his right to stand on that belief in this proceeding without adverse impact.”
As mitigating factors, the board noted four “credible and sincere” witnesses who testified positively about Armengau’s character, diligence, and dedication; Armengau’s actions toward making restitution to certain former clients; and the 13-year prison sentence he is serving as a penalty for his actions. However, the board stated it must “hold supreme” the established convictions.
The board recommends that the Court disbar Armengau from the practice of law in Ohio.
Attorney Cites Other Pending Appeals, Insists on His Innocence
Armengau maintains that he was convicted of crimes he didn’t commit and crimes for which he wasn’t indicted, based on claims about which county the crimes took place. He argues that his disciplinary hearing should’ve been delayed while his other appeals are pending. The board panel had the authority to do so to ensure a fair result, he asserts. He also believes that one of his pending appeals is a direct appeal, which required a stay of his disciplinary hearing.
He contests the panel’s decision to bar him from presenting evidence at the hearing about the nature and character of the offenses for which he was convicted – which is an aspect of one of the rule violations. Yet the board relied on the Tenth District’s opinion for specific facts, he notes. He argues doing so denied him a fair hearing because the court’s opinion isn’t proper evidence.
On the recommended sanction, the lawyer’s brief states: “[D]isbarment, if accepted, will forever preclude Mr. Armengau from reobtaining his law license should this Court or another court conclude that he was innocent of the charges. Because the future is unknown, an indefinite suspension would be a more appropriate sanction. This would allow Mr. Armengau the opportunity to request reinstatement of his law license in the event his convictions are overturned.”
Columbus Bar Rejects Procedural Claims
The bar association maintains that Armengau’s ongoing appeals aren’t direct appeals, which would mandate a stay of the disciplinary case. The association also stresses that the panel had the discretion, but wasn’t required, to grant a continuance of the hearing and was permitted to move forward with the proceedings once the direct appeals were exhausted.
It was clear that Armengau wanted to introduce evidence that he was wrongly convicted, but Supreme Court rules and precedent prohibit lawyers from attacking their convictions in a disciplinary hearing, the bar association states. It notes that the Tenth District’s decision is public record and that it’s not unusual for the Court to rely on court decisions about a lawyer’s convictions for information.
Given the “heinous” nature of Armengau’s crimes – rape, kidnapping, and sexual battery – Armengau shouldn’t be permitted to practice law in Ohio any longer, the bar association concludes.
–Kathleen Maloney
(Mike Frisch)