Monday, September 15, 2014

The Shower, the Video, Twitter and Invasion of Privacy

Gerald Brown was “indicted on two counts of third-degree invasion of privacy”, in violation of New Jersey Statutes § 2C:14–9b and 14–9c, for “surreptitiously videotaping the victim, his former girlfriend D.W., as she prepared to take a shower and uploading that video to a Twitter account for dissemination to others following their breakup.” State v. Brown, 2014 WL 4450430 (Superior Court of New Jersey, Appellate Division 2014).
The case went to trial and, in this opinion, the Appellate Division is ruling on
the State's interlocutory appeal from the grant of defendant Gerald Brown's in limine motion requiring the State to produce an expert to explain internet service provider and cell phone records it intends to introduce at defendant's trial to establish that defendant uploaded a video of his former girlfriend in a state of undress. 
State v. Brown, supra.  
Before we get to that issue, I need to outline how and why the prosecution arose. According to the prosecution, Brown was indicted for
surreptitiously videotaping the victim, his former girlfriend D.W., as she prepared to take a shower and uploading that video to a Twitter account for dissemination to others following their breakup. The victim discovered the crime on January 27, 2011, when she got several messages from a Twitter subscriber (user) sent to her Twitter account.

The first such message was in the form of a tweet stating, `remember the COP that took u 2 the HOOKAH bar n da summer? He said good looking out 4 da happy ending HOOKer!!!’ Within minutes, the victim received another tweet from the same user, `stop looking 4 all these dudes 2 be ur daddy. . . . they just wanna nut all n dat fat azz . . .DatS ALL!!’ Several minutes later, that user tweeted to someone else, `[t]his TRICK [D.W.] is a MAJOR WHORE n the tri state area. . . .’

Over the next several minutes, D.W. received several more tweets from the same user that insinuated that she was a prostitute.

At 9:06 a.m., D.W. received a tweet from the user, which was also sent to four other Twitter subscribers. The tweet provided an embedded link to a video hosted by, a service that provides a means for Twitter users to share videos.

The tweet also contained the symbol `<—‘ pointing to D.W.'s username, implying that the video was with reference to her. Upon viewing the video, D.W. recognized herself and her bathroom and the male voice off camera as belonging to defendant. D.W. was not aware that defendant had videotaped her and did not know such a video existed until seeing it on Twitter.
State v. Brown, supra.  
That triggered an investigation:
After obtaining [Brown’s] cell phone number from the victim, Detective Bolan of the Cyber Crimes Unit in the Essex County Prosecutor's Office obtained a communications data warrant (CDW) for Twitter account information relating to the user.
Twitter responded that the account was created on January 26, 2011, at 7:10 p.m. from a certain IP address. Using DomainTools, a publicly available directory of IP addresses, Bolan found that the IP address was registered to Research in Motion (RIM) Technologies, now known as Blackberry.

Bolan sent a subpoena to Blackberry requesting subscriber information for IP address on January 27, 2011, for an identified one hour and forty-minute period. Blackberry responded by requesting the user's International Mobile Equipment Identity (IMEI) or International Mobile Subscriber Identity (IMSI) numbers. Bolan obtained the information by transmitting a grand jury subpoena to T–Mobile, Brown's cellular service provider, which provided the ISMI number to Brown's phone.

Using the IMSI number provided by T–Mobile, Blackberry responded to the subpoena by advising that on January 27, 2011, a Blackberry device at the IP address provided by Twitter, downloaded the TwitVid application (app) from Blackberry App World. Blackberry also responded by identifying an email address associated with the account.
Using the information received from Blackberry, Detective Bolan served a subpoena on Microsoft, operator of the domain, requesting subscriber information on that email address. The response from Microsoft revealed that the account belonged to a `Gerald Brown.’
State v. Brown, supra.  In a footnote, the court explains that
[a]n IMEI identifies a user's mobile handset number; it remains constant so long as the SIM (Subscriber Identification Module) card is not changed, and the IMSI identifies `the user's country code, user account, network code and telephone number.’ Jen Manso, Cell–Site Location Data and the Right to Privacy, 27 Syracuse Sci. & Tech. Rep. 1, 4 n.15 (2012).
State v. Brown, supra.  
The Appellate Division then explained that the
issue before the Law Division was whether the State needed an expert to explain that document trail to the jury. [Brown] asserted that the information collected in response to the CDW and subpoenas pertained to internet-working protocols and applications that were extremely technical and outside the ken of the average juror, thus requiring an expert to explain the links.

The State maintained that expert opinion was unnecessary as it did not intend to have Bolan provide an opinion conclusively linking [Brown] to the Twitter account or the video. Instead, Bolan would testify to the steps she took in conducting her investigation and the business records obtained in response to the CDW and subpoenas. The State maintained that Bolan would do no more than provide the circumstantial links from which the jury could draw a conclusion.
State v. Brown, supra.  
The opinion then notes that the trial judge “did not conduct a Rule 104 hearing or hear oral argument on the motion”, which was essentially the basis of Brown’s argument, at trial and on appeal. State v. Brown, supra.  That is relevant because Rule 104(a) of the New Jersey Rules of Evidence states that
[w]hen the qualification of a person to be a witness, or the admissibility of evidence, or the existence of a privilege is subject to a condition, and the fulfillment of the condition is in issue, that issue is to be determined by the judge. In making that determination the judge shall not apply the rules of evidence except for Rule 403 or a valid claim of privilege. The judge may hear and determine such matters out of the presence or hearing of the jury.
If you are interested, the blog post you can find here explains more about Rule 104 hearings.
Instead of holding a Rule 104 hearing, the trial judge reviewed the briefs submitted by  both sides and then issued a written opinion, “relying predominantly on out-of-state cases”, in which he explained that
[e]xtensive and diligent research performed by both parties, and supplemented by the Court's own research, has failed to uncover any cases from inside or outside this jurisdiction that are directly on point. Nonetheless, the Court finds U.S. v. Ganier, 468 F.3d 920 (U.S. Court of Appeals for the 6th Circuit 2006) somewhat instructive.

In Ganier, the court determined that an expert was required to testify about his use of forensic software to determine what searches were run on three different computers. Id. at 923. The Court reasoned that `[s]oftware programs such as Microsoft Word and Outlook may be as commonly used as home medical thermometers, but the forensic tests Drueck ran are more akin to specialized medical tests run by physicians.’ Id. at 926.

This Court acknowledges that the fast pace of technological advancements lessens the persuasiveness of Ganier which was decided in 2006. Technology that was new and evolving in 2006 may be commonplace in 2013. Nonetheless, this Court finds that the issues involved in this case (IP addresses and advanced networking protocols used by mobile device applications, RIM networks, and T–Mobile) are more akin to specialized medical tests and the use of forensic software to find information about computer searches, and less akin to the output of popular software programs such as Microsoft Word and Outlook. Id. at 926.

After poring over these records, and aided by both parties' written submissions, this Court has experienced significant difficulty and confusion in attempting to discern exactly how the records link the Defendant to the particular video in question. The Court finds that the concepts required to establish this inferential link are `so esoteric that jurors of common judgment and experience cannot form a valid judgment’ about whether or not [Brown] uploaded this video. Butler v. Acme Markets, Inc., [89 N.J. 270,] 283 (New JerseySupreme Court 1982)].

The Court has broad discretion to determine whether or not this subject-matter is beyond the ken of the average juror. The fact that this Court, with the luxury of time and written explanations, struggled mightily to understand the technical subject-matter demonstrates the complexity of these issues. Therefore, an expert witness is required.
State v. Brown, supra.  
The fact that the trial judge relied “primarily” on cases from other states was at least potentially problematic because, if a statute does not explicitly apply to an issue, U.S. courts, both state and federal, rely on precedent as authority.  And as this short article from the Georgetown University Law Center notes, prior decisions only act as binding precedent on a trial court judge if they were issued by a higher court in that state.  The article explains that and has a chart that outlines the scope of precedential decisions.  
Basically, here, the Appellate Division seems hesitant to defer to the trial judge’s analysis, at least in part, because it was based mostly on decisions issued by courts the ruling of which are not binding on a New Jersey trial judge, or on a New Jersey appellate court. 
In the judge’s (potential) defense, judges usually rely on precedents from other states when they cannot find relevant precedential decisions from higher courts in their own states.  I do not, of course, know if that was the case here.
Perhaps for that reason, perhaps because of the potentially novel issue raised by this case, the Appellate Division chose not to weigh in on it, at least not at this stage.  Instead, it concluded
that we lack the record to definitively resolve this issue. Accordingly, we remand for a Rule 104 hearing to determine the nature and extent of the evidence the State seeks to introduce as part of Bolan's proffered testimony and whether she is qualified to give such evidence. See State v. McLean, 205 N.J. 438 (New Jersey Supreme Court 2011) (addressing lay and expert opinion in the context of drug prosecution); State v. Green, 417 N.J. Super. 190 (Appellate Division 2010) (holding that the court erred in concluding that defendant was not qualified to testify as an expert without conducting a hearing under New Jersey Rule of Evidence 104 to ascertain the factual testimony that would be offered and the opinions that would be expressed).

In addition, the court should address under New Jersey Rule of Evidence 901 the issue of the authentication of the documents the detective received in response to the CDW and the subpoenas she issued.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
State v. Brown, supra.  

While it is, at least for those of us who are interested in these issues, disappointing that the Appellate Division chose not to address this issue at this stage in the proceedings, it may well be the wisest choice.  It is, after all, reasonably certain that the trial judge will conduct the Rule 104 issue and draft a new decision, which will no doubt make its way back to the Appellate Division.

Friday, September 12, 2014

Child Pornography, "Dirty Little Mermaid" and Lifetime Electronic Monitoring

After William Lance McGowan was convicted of “aggravated indecent liberties with a child and aggravated indecent solicitation of a child” in violation of Kansas law and sentenced to “life without the possibility of parole for 25 years, plus lifetime postrelease supervision if McGowan is released from prison”, he appealed.  State v. McGowan, 2014 WL 4231229 (Court of Appeals of Kansas 2014). There was also another aspect to his sentencing, which I will address later in this post.
According to the opinion, the prosecution arose after “the mother of the child he ultimately was convicted of sexually abusing” told her “mother about what had been going on” and “the mother contacted the police.”  State v. McGowan, supra.  When
the child was interviewed by a social worker, she said McGowan had shown her pornographic videos on his computer involving Beauty and the Beast, Pocahontas, and the Little Mermaid. She said she sat on McGowan's lap and she could feel McGowan's penis while she was sitting on his lap; she described it as squishy but said sometimes it felt hard.

At times, McGowan would rub his penis against her buttocks while she was sitting on his lap. She said McGowan used anatomically correct dolls to simulate sex acts and then asked her to engage in sex acts, but she refused. She told the social worker McGowan asked to put his fingers in her `wussy,’ asked her to kiss his penis, licked her breasts, placed his hand on her `wussy’ inside her clothing, and licked her `wussy.’
State v. McGowan, supra.  The child testified at trial and a “video and a transcript of her” interview by social worker were also admitted into evidence. State v. McGowan, supra.  
And McGowan testified at his trial, admitting to
viewing pornographic websites on his home computer as a way to test whether his spyware could shut down virus-type activity. He admitted being familiar with a video called the `Dirty Little Mermaid’ in which the mermaid expresses her disappointment about not being able to have sex, but he denied watching this video, or any other pornographic video, with the child.

He admitted that the child sat on his lap while he played computer games, but he denied having an erection when this occurred. He admitted kissing the child on the mouth but denied touching the child in a sexual manner.

Further, he denied knowing that there was a story of grooming a child for sexual activity on his computer. McGowan was familiar with the concept of sexual grooming from his background in clinical psychology and his training regarding sexual abuse.
State v. McGowan, supra.  
At the trial,
Kansas Bureau of Investigation Special Agent John Kite testified about his search of McGowan's computer. He found files relating to Internet sites which had been deleted. On the pornographic websites he discovered, Kite found past searches using the key words `Disney gals’ and `Dirty Little Mermaid.’ 

When searching for the term `beauty,’ Kite found a text narrative that described a man showing videos of sexual activity between adults and children to an 11–year–old girl in order to precondition her for sex acts with him.
State v. McGowan, supra.  
On appeal, McGowan argued, first, that       
the district court should have suppressed the pornographic text file found on his computer. He contends the language of the search warrant restricted the officers to a search for photographs, videos, and images, not text files. But he also argues, to the contrary, that the warrant that encompassed this text file was too broadly drawn.
State v. McGowan, supra.  
The Court of Appeals began its analysis of McGowan’s arguments by noting that
there is no dispute regarding the facts surrounding the suppression issue. Thus, we have unlimited review over whether this evidence should have been suppressed.
State v. McGowan, supra.  It then went on to explain that the April 2009 search warrant
covered `[a]ny electronic data including files and images of a sexually explicit nature depicting Beauty and the Beast.’ Agent Kite discovered the narrative file describing the sexual grooming of a child.

McGowan argues the warrant covered photos, videos, and images but not text files. The State argues that because the April 2009 search warrant uses the word `depict,’ this encompasses both visual representations and narrative descriptions such as the one found by Agent Kite.

We are not persuaded by McGowan's argument that the word `depicting’ in the warrant cannot mean anything other than to `convey the concept of pictorial images.’ A common definition of the word `depict’ is `to represent in words.’ See Webster's II New College Dictionary 310 (3d ed. 2005). Further, a text file falls within the purview of `any electronic data’ including files of a sexually explicit nature.

Finally, it makes no sense for the warrant to include the word `files’ as well as the phrase `images of a sexually explicit nature’ if the issuing magistrate did not anticipate the search would include text files as well as images. The fact that the second search warrant was restricted to photographs, videos, and images does not nullify the language contained in the first warrant.
State v. McGowan, supra.  
The Court of Appeals explained that
‘”[W]arrants, and their supporting affidavits, are to be interpreted in a common-sense, rather than a hypertechnical, fashion’”. State v. Ames, 222 Kan. 88, 563 P.2d 1034 (Kansas Supreme Court 1977). Using a common-sense approach to defining the scope of the warrant, we conclude the text file seized falls within the four corners of the warrant.
State v. McGowan, supra.  
The Court of Appeals began its response to McGowan’s argument by noting that
[o]n McGowan's alternative argument, we conclude the warrant was not too broadly drawn. As stated in State v. Francis, 282 Kan. 120, 126, 145 P.3d 48 (Kansas Supreme Court 2006):

`The requirement that warrants shall particularly describe the things to be seized prevents the seizure of one thing under a warrant describing another. [Citations omitted.]

The constitutional standard for particularity of description in a search warrant is that the language be sufficiently definite to enable the searcher reasonably to ascertain and identify the things authorized to be seized. [Citation omitted.] Hence, the specificity required hinges on the circumstances of each case. [Citation omitted.]’
State v. McGowan, supra.  
The court went on to explain that
[w]hen the police search a computer they “`cannot simply conduct a sweeping, comprehensive search of a computer's hard drive.”’ State v. Rupnick, 280 Kan. 720, 125 P.3d 541 (Kansas Supreme Court 2005) (quoting U.S. v. Walser, 275 F.3d 981 [U.S. Court of Appeals for the 10th Circuit 2001]. . . .

The search warrant must describe the things to be seized with sufficient particularity so the officers conducting the search are clear as to what it is they are seeking and, therefore, they search the computer in a way that avoids searching files of types not identified in the warrant. U.S. v. Walser, supra.

The test is one of practical accuracy rather than one of technical sufficiency, and absolute precision is not required in identifying the property to be seized. See State v. Rupnick, supra.

For example, when the defendant is being investigated for drug crimes, the police cannot introduce into evidence pornography found on the defendant's computer that was not covered by the warrant. U.S. v. Walser, 275 F.3d at 984. U.S. v. Carey, 172 F.3d 1268 (U.S. Court of Appeals for the 10th Circuit 1999).

But here, McGowan was being investigated for molesting a child, and the text file that was discovered specifically related to the crime under investigation. The language of the warrant restricted the search to electronic data of a sexually explicit nature that related to several specifically articulated scenarios.

The text file depicting an adult male showing a video to a young girl and soliciting her to perform sex acts was specifically related to the allegations made by the child in this case. Unlike the warrant issued in the case relied upon by McGowan, Crowther v. State, 45 Kan.App.2d 559, 566–67, 249 P.3d 1214 (Kansas Court of Appeals), rev. denied 293 Kan. 1105 (Kansas Supreme Court 2011), the warrant in our present case did not authorize the police to conduct a roving search of McGowan's computer files.
State v. McGowan, supra.  The court therefore held that the trial judge “correctly denied McGowan’s motion to suppress.”  State v. McGowan, supra.  
Finally, McGowan appealed the district court judge’s sentencing him to “lifetime electronic monitoring,” in addition to the penalties noted above. State v. McGowan, supra.  As the Court of Appeals explained,
[t]he district court did not order lifetime electronic monitoring during any period of postrelease supervision when the court orally pronounced McGowan's sentence at trial. Nevertheless, this added provision found its way into the final journal entry of judgment.

The box calling for lifetime electronic monitoring appears to have been checked, probably by court services, before the journal entry was submitted to the court for signature.

Both parties agree that the district court lacked the authority to order lifetime postrelease supervision with electronic monitoring. A sentencing court has no authority to order a term of postrelease supervision in conjunction with an off-grid indeterminate life sentence.

In addition, although lifetime electronic monitoring is mandated by the statute, the sentencing court does not have the authority to impose the conditions of parole. See Kansas Statute § 22–3717(u); State v. Waggoner, 297 Kan. 94, 298 P.3d 333 (Kansas Supreme Court 2013); State v. Mason, 294 Kan. 675, 279 P.3d 707 (Kansas Supreme Court 2012).

The State recently supplemented the record with a nunc pro tunc order correcting this error, so the issue is now moot.
State v. McGowan, supra.  

This brief news story reported McGowan’s sentencing.

Wednesday, September 10, 2014

Bankruptcy, Attorney Discipline and Extortion

On April 25, 2013, the Toledo Bar Association "filed a five-count second amended complaint charging Beauregard Maximillion Harvey with violating various rules of professional conduct arising from his representation” several clients “in various legal matters.” Toledo Bar Association v. Harvey, 2014 WL 4358004 (Supreme Court of Ohio 2014). 
The Supreme Court began its opinion by noting that this was Harvey’s
second disciplinary matter. Harvey was disciplined in 2012 for failing to act with reasonable diligence in representing clients, failing to keep his clients informed, and engaging in conduct prejudicial to the administration of justice.

We ordered a one-year suspension, all stayed on the conditions that he commit no further misconduct and submit to one year of monitored probation. Toledo Bar Assn. v. Harvey, 133 Ohio St.3d 228, 977 N.E.2d 628 (Ohio Supreme Court 2012).
The flowchart you can find here outlines the Ohio attorney disciplinary process.
On April 25, 2013, . . . the Toledo Bar Association, filed a five-count second amended complaint charging Harvey with violating various rules of professional conduct arising from his representation of four clients in various legal matters. Some of the conduct occurred during his stayed suspension and some occurred before his earlier disciplinary case.

After conducting a hearing, a three-member panel of the Board of Commissioners on Grievances and Discipline found that he had violated numerous rules of professional conduct. The panel recommended that he be suspended for two years, with six months stayed on conditions.
Toledo Bar Association v. Harvey, supra.   The Board of Commissioners on Grievances and Discipline
adopted the panel's findings of fact and conclusions of law but recommends that we suspend Harvey from the practice of law for two years with no portion of the suspension stayed. 

Harvey filed objections to the board's recommended sanction, and relator filed a response to those objections.
Toledo Bar Association v. Harvey, supra.   
This post examines the Supreme Court’s analysis of Harvey’s handling of the cases involving two of the four clients, the first being Andrea DeBagio who retained him on
October 8, 2010, to file a Chapter 7 bankruptcy petition and gave him a check for $999. The terms of the agreement for legal services between them provided that $299 was for filing fees and $700 was for Harvey's legal fees.

Harvey negotiated the check on October 8, 2010, and deposited $299 into his IOLTA account and the remaining $700 into another account.

DeBagio testified that she understood that the bankruptcy petition would be filed on November 2, 2010. She attempted to call Harvey after that date on multiple occasions because creditors were calling her.

She finally reached him on December 29, and Harvey told her he had not filed the petition and advised her that he thought that he should wait until after she received her tax refund check in February to file.

She agreed that he could wait to file. After she received her tax refund, she attempted to reach Harvey at least five times between February 17 and March 4, 2011.

She then retained new counsel to file the bankruptcy petition and requested that Harvey refund the money previously paid. Her new attorney also requested the refund for his client.

Harvey responded that he had `performed all but a de minimis amount of the work’ and that DeBagio would `only receive the filing fee back.’

DeBagio wrote to Harvey again on September 1, 2011, and noted that while she disputed the amount of work he had done, she was willing to accept only her filing fee back but indicated that she wanted it `as soon as possible.’

The panel found that despite DeBagio's and her new counsel's requests to return funds, Harvey did not return the $299 filing fee until October 2012, more than a year after the initial request.

The panel also found that Harvey's fee contract with DeBagio did not contain the required written clause that she may be entitled to a refund based on the value of the representation.

Harvey was charged with the following rule violations: Prof. Cond. R. 1.1, 1.3, 1.4(a)(4) (requiring a lawyer to comply as soon as practicable with reasonable requests for information from the client), 1.5(d)(3) (prohibiting a lawyer from charging a flat fee without simultaneously advising the client in writing that she may be entitled to a refund of all or part of the fee if the lawyer does not complete the representation), 1.15(c) (requiring a lawyer to deposit into a client trust account legal fees that are paid in advance), 1.16(d) (requiring a lawyer to promptly return property to the client upon termination of the representation), 1.16(e) (requiring a lawyer to promptly refund any unearned fee to the client upon termination of the representation), 8.4(c), and 8.4(d). 
Based on the testimony and exhibits, the panel found by clear and convincing evidence that Harvey had violated all the rules charged in Count Three except Prof. Cond. R. 1.16(e), which it dismissed. The board adopted the findings of fact and conclusions of law of the panel.
Toledo Bar Association v. Harvey, supra.   
That brings us to the other client:
Andre Zepeda, who sued his former employer, Cumulus Broadcasting, L.L.C. (`Cumulus’). Ashley Herd, corporate counsel for Cumulus, sent a letter to Harvey in February 2013 regarding Zepeda's contractual obligations with Cumulus. She requested that Harvey contact her before March 1, 2013, to discuss Zepeda's breach of the employment agreement.

Matt Spaulding, Cumulus's vice president and market manager, was copied on the letter. Harvey stipulated in this case that he was aware that Spaulding worked for Cumulus and was represented by counsel.

Harvey responded to Herd's letter by e-mail, refuting her claim and offering to `allow Cumulus to settle [its] potential liabilities by paying [his] client $25,000.’ On February 28, 2013, Harvey sent the following text messages to Matt Spaulding:

`[2:01 p.m.] You should seriously convince them to pay 25k or else face my wrath will be fun for sure.’

`[2:02 p.m.] And, your company is on the losing end on this one.’
Toledo Bar Association v. Harvey, supra.   
Spaulding texted the following response to Harvey:
`[2:06 p.m.] As I have told you multiple times, this is not a discussion I will get into. Your threats would be better served elsewhere.’
Toledo Bar Association v. Harvey, supra.   
Harvey then sent the following to Spaulding:
`[2:07 p.m.] Come on Matt, this surely isn't a threat. . . . don't be silly.’

`[2:09 p.m.] I don't think you understand. . . . this is fun stuff. Its intellectually challenging and it matters to someone. I only throw you shit on the side bc I like you.’

(Ellipsis points sic.)
Harvey implied in his testimony before the panel that he and Spaulding were friends. He stated that in texting Spaulding, he was merely `bantering’ with him. But Spaulding testified that he and Harvey were not friends and that he interpreted the text messages as extortion.
Toledo Bar Association v. Harvey, supra.   
One of the allegations against Harvey that arose from this case was that he violated Rule 4.2 of the Ohio Rules of Professional Conduct, which states that
[i]n representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.
Ohio Rules of Professional Conduct 4.2. Toledo Bar Association v. Harvey, supra.
The panel found,
by clear and convincing evidence, that Harvey had violated Prof.Cond.R. 4.2 (prohibiting a lawyer from communicating about the subject of his representation of a client with a person known to be represented by another lawyer in the matter, unless he has the consent of the other lawyer or is authorized by law or court order) and 8.4(d).
Toledo Bar Association v. Harvey, supra.  Rule 8.4(d) says that it is “professional misconduct” for a lawyer to “engage in conduct that is prejudicial to the administration of justice”.
The panel also dismissed the allegation that Harvey violated Prof.Cond.R. 8.4(h), which says it is professional misconduct for a lawyer to “engage in any other conduct that adversely reflects on the lawyer’s fitness to practice law.”  Toledo Bar Association v. Harvey, supra.   
The board adopted the findings of fact and conclusions of law of the panel.  Toledo Bar Association v. Harvey, supra.   It also recommended “Harvey be suspended from the practice of law for two years with no time stayed and that we condition his reinstatement on his making restitution.”  Toledo Bar Association v. Harvey, supra.   
Harvey disagreed, arguing that “a one-year suspension is appropriate.”  Toledo Bar Association v. Harvey, supra.   
The Supreme Court agreed with the board, holding that
[u]pon our independent review of the evidence, we hold that the panel's recommended sanction is the appropriate sanction for Harvey's misconduct, and we therefore adopt that sanction. 

Beauregard Harvey is suspended from the practice of law for two years with six months stayed on the conditions that (1) he prove that he has made full restitution of $2,512, plus interest and costs, to Michael Degens, as ordered by the Toledo Municipal Court, and $1,050 to Andrea DeBagio for the additional attorney fees she incurred and (2) he commit no further misconduct.
Toledo Bar Association v. Harvey, supra.   

Two of the Supreme Court Justices dissented, because they “would decline to stay any portion of the two-year suspension.”  Toledo Bar Association v. Harvey, supra.   If you are interested, you can find the full opinion here.