Indefinite Suspension and “Credit for Time Served” in Financial-Fraud Cases: Commentary on Disciplinary Counsel v. Fusco

Indefinite Suspension and Structured Evaluation of Credit for Interim Felony Suspensions in Attorney Financial-Fraud Cases: Commentary on Disciplinary Counsel v. Fusco, 2025‑Ohio‑5397

I. Introduction

The Supreme Court of Ohio’s decision in Disciplinary Counsel v. Fusco, 2025‑Ohio‑5397, is a significant addition to Ohio’s attorney-discipline jurisprudence in two closely linked areas:

  • Sanctioning lawyers convicted of financial crimes involving client or third‑party funds; and
  • How, and when, to award “credit for time served” under an interim felony suspension pursuant to Gov.Bar R. V.

Respondent Anthony James Fusco, admitted in 2015 and employed in a high‑volume personal‑injury practice, engaged in a multi‑year scheme to submit falsely inflated medical bills in hundreds of cases to increase his bonus compensation. He was criminally convicted of third‑degree felony insurance fraud and placed under an interim felony suspension in 2022. The disciplinary proceedings followed in 2024–2025.

While the Board of Professional Conduct recommended a one‑year suspension without credit for interim suspension, the Supreme Court—over no objections but with a separate partial dissent—opted for a substantially harsher outcome: an indefinite suspension with no credit for time served under Fusco’s interim felony suspension. In doing so, the court:

  • Affirmed that large‑scale, profit‑motivated financial fraud by lawyers will ordinarily draw an indefinite suspension; and
  • Collected and systematized more than 100 prior “interim felony suspension” cases to articulate the themes and factors governing when credit for time served will, and will not, be granted.

Justice Kennedy authored the majority opinion (joined by four justices), with Justice DeWine concurring in the imposition of an indefinite suspension but dissenting as to the denial of any credit for the three-plus years Fusco had already been suspended, arguing that at least one year of credit was warranted to keep Fusco’s total suspension in line with comparable precedents.

II. Summary of the Opinion

A. Factual Background

Shortly after admission to the bar, Fusco joined a personal‑injury firm where:

  • He managed 400–600 clients at a time, handling pre‑litigation settlement and negotiation (Fusco at ¶¶ 5, 7).
  • He was paid a $45,000 base salary plus bonuses tied to the amount of fees he generated (¶ 6).

Between March 2017 and October 2019:

  • Fusco systematically inflated medical bills submitted in demand packages in 399 cases involving 62 insurers and third‑party claim administrators (¶ 8).
  • He falsely added a total of $859,464.44 in “fake” medical charges (¶ 8).
  • His scheme contributed to receiving $118,046.05 in bonuses between 2017 and 2019 (¶ 8).

The scheme came to light when an insurer questioned an apparently inflated bill. Fusco:

  • Initially lied to senior partners about what had occurred (¶ 9);
  • Then admitted inflating that particular bill but falsely denied inflating others (¶ 9); and
  • Resigned on October 2, 2019 (¶ 9).

The matter was referred to the Ohio Department of Insurance, which led to:

  • An indictment for:
    • Telecommunications fraud (2nd‑degree felony), and
    • Insurance fraud (3rd‑degree felony) (¶ 10).
  • A guilty plea to insurance fraud in exchange for dismissal of the telecommunications‑fraud count (¶ 10).
  • A sentence of 18 months’ imprisonment, of which Fusco served about 40 days before being granted judicial release and probation (¶ 10).

On September 21, 2022, the Supreme Court imposed an interim felony suspension under Gov.Bar R. V(18)(A)(4). That suspension remained in effect through the disciplinary case (¶ 1).

B. Rule Violations and Stipulations

In March 2024, Disciplinary Counsel charged Fusco with professional‑conduct violations arising from his criminal conduct. The parties stipulated to:

  • Prof.Cond.R. 8.4(b) – committing an illegal act that reflects adversely on honesty or trustworthiness;
  • Prof.Cond.R. 8.4(c) – engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; and
  • Prof.Cond.R. 8.4(h) – engaging in conduct that adversely reflects on fitness to practice law, with a specific reference to Disciplinary Counsel v. Bricker, 2013‑Ohio‑3998, ¶ 21, for using 8.4(h) when misconduct is sufficiently egregious (¶ 11).

They jointly proposed a two‑year suspension without a stay, reserving only whether Fusco should receive credit for the interim felony suspension (¶ 11).

A three‑member panel—and then the Board—accepted the misconduct findings but found the proposed two‑year suspension “unduly harsh” and recommended:

  • A one‑year suspension, and
  • No credit for time served under the interim felony suspension (¶ 12).

No party filed objections with the Supreme Court (¶ 12).

C. Supreme Court’s Holding

The court:

  • Adopted the Board’s findings of misconduct (¶ 13);
  • Rejected the Board’s one‑year sanction recommendation as too lenient (¶ 13); and
  • Imposed an indefinite suspension from the practice of law with no credit for the time served under the interim felony suspension (¶¶ 4, 13, 41, 66).

The court held that Fusco’s multi‑year fraudulent scheme involving $859,464.44 in inflated bills to 62 insurers and claim administrators, designed to increase his personal bonus compensation, placed him within the line of cases warranting indefinite suspension for serious financial crimes.

On the credit issue, the court conducted an unusually comprehensive survey of prior decisions and concluded that:

  • Granting credit under Gov.Bar R. V(17)(D)(2) is discretionary and based on the totality of the circumstances rather than any single factor (¶¶ 56–63); and
  • Given the scale, duration, personal profit, absence of restitution, short actual imprisonment, and limited mitigating evidence, Fusco should receive no credit (¶ 65).

D. Concurring and Dissenting Opinion (DeWine, J.)

Justice DeWine agreed that an indefinite suspension was appropriate but dissented from the denial of all credit. He would award one year of credit for time served.

He emphasized:

  • Fusco has already been suspended for more than three years (since September 21, 2022) (¶ 68–69).
  • Because an attorney under an indefinite suspension cannot petition for reinstatement for two years after the indefinite‑suspension order, the majority’s approach yields a minimum effective suspension of over five years (approximately 1,901 days) before Fusco can even seek reinstatement (¶ 69, 73).
  • In similar financial‑crime cases, attorneys have typically received:
    • Either credit for time served,
    • Or shorter aggregate waiting periods before they could petition for reinstatement.

DeWine argued that denying all credit:

  • Creates an outlier result relative to comparable fraud and financial‑crime cases (¶¶ 75–79);
  • Risks punishing Fusco more harshly simply because of procedural timing; and
  • Undermines the principle that “like cases should generally be treated alike” (¶ 81).

III. Detailed Analysis

A. Misconduct, Rule Violations, and Aggravating/Mitigating Factors

1. Substantive Misconduct and Rules Applied

The misconduct findings are straightforward and largely undisputed:

  • Prof.Cond.R. 8.4(b): Fusco’s felony insurance‑fraud conviction is, by definition, an “illegal act that reflects adversely on the lawyer’s honesty or trustworthiness.”
  • Prof.Cond.R. 8.4(c): Systematically falsifying medical bills to insurers and administrators is classic fraud, deceit, and misrepresentation.
  • Prof.Cond.R. 8.4(h): The court, following Bricker, treats egregious, systemic financial dishonesty as sufficiently serious to separately establish that the conduct “adversely reflects on the lawyer’s fitness to practice law” (¶ 11).

The court’s willingness to recognize an 8.4(h) violation in addition to (b) and (c) matters practically: 8.4(h) serves as a kind of catch‑all signal that this is not a technical violation but a profound fitness concern.

2. Aggravating Factors (Gov.Bar R. V(13)(B))

The parties stipulated, and the Board found, three aggravating factors under Gov.Bar R. V(13)(B) (¶ 15):

  • Dishonest or selfish motive (V(13)(B)(2)):
    • Fusco’s conduct was motivated by personal financial gain: increasing his performance‑based bonuses.
  • Pattern of misconduct (V(13)(B)(3)):
    • The scheme persisted from March 2017 to October 2019—over two and a half years—with repeated similar acts.
  • Multiple offenses (V(13)(B)(4)):
    • Though criminally charged only once, in disciplinary terms each instance of inflated billing and related dishonesty constitutes separate ethical violations across 399 matters.

3. Mitigating Factors (Gov.Bar R. V(13)(C))

The Board credited three mitigating factors (¶ 15):

  • No prior discipline (V(13)(C)(1)): Fusco had a clean professional record prior to this case.
  • Cooperative attitude (V(13)(C)(4)): He stipulated to the facts, rules violated, and aggravating/mitigating circumstances and cooperated in the process.
  • Other penalties/sanctions (V(13)(C)(6)): He was criminally sentenced to 18 months’ imprisonment (though he served only about 40 days before judicial release).

Notably, the court did not credit several mitigating themes that frequently soften sanctions in financial‑crime cases:

  • Restitution / disgorgement:
    • Unlike some respondents, Fusco was not ordered to pay restitution, and the record showed no efforts to disgorge his ill‑gotten bonuses or compensate insurers/administrators (¶ 26).
  • Good character and reputation:
    • The record did not support a finding of strong character evidence, unlike in Kraemer and Gittinger (¶ 26).
  • Qualifying mental‑health or substance‑use disorders (V(13)(C)(7)):
    • Fusco testified about misusing Adderall and “spiraling in addiction,” but:
      • There was no showing that a disorder “contributed to cause” the misconduct; and
      • No prognosis that he could return to competent, ethical practice (¶¶ 16–17, 26–27).
    • Thus, the court refused to treat this as a mitigating disorder under Gov.Bar R. V(13)(C)(7)(b),(d) (¶ 27).

While Fusco did enter into an OLAP contract and pursued AA meetings and mental‑health counseling (¶ 17), those efforts did not rise, on this record, to a qualifying “disorder‑based” mitigation.

B. Precedents Cited and How They Shaped the Outcome

1. The Board’s Comparators: Kraemer and Gittinger

The Board had cited Disciplinary Counsel v. Kraemer, 2010‑Ohio‑3300, and Disciplinary Counsel v. Gittinger, 2010‑Ohio‑1830, to justify a one‑year suspension without credit (¶ 18).

a. Kraemer

In Kraemer:

  • The lawyer diverted about $7,157 in fees from his law firm over four months (¶¶ 19–20).
  • He:
    • Stopped on his own before detection,
    • Admitted wrongdoing when confronted, and
    • Paid restitution and had positive character evidence and a qualifying mental‑health diagnosis (¶ 21).
  • Violations included 8.4(b), 8.4(c), 8.4(h), and 8.4(d) (conduct prejudicial to the administration of justice) (¶ 20).
  • The court imposed a two‑year suspension with one year stayed on conditions and gave one year’s credit for the interim felony suspension, leaving only the stayed portion (¶ 21).

The Fusco court distinguished Kraemer on several grounds (¶¶ 24–26):

  • Scale and duration: Fusco’s misconduct spanned 2.5+ years vs. four months, involved 399 matters and more than $850,000 in inflated claims.
  • Restitution: Kraemer fully repaid the firm; Fusco made no restitution or disgorgement.
  • Mental health: Kraemer had a qualifying disorder with treatment; Fusco did not satisfy Gov.Bar R. V(13)(C)(7).
  • Acceptance of responsibility: Kraemer accepted responsibility early; Fusco initially lied and then minimized the scope of his misconduct.

Result: Kraemer was deemed more mitigated and less serious, so its two‑year framework (with credit) was considered too lenient for Fusco.

b. Gittinger

In Gittinger:

  • The lawyer was convicted of conspiracy to commit bank fraud and money laundering in a real‑estate closing context, with a loss between $400,000 and $1,000,000 (¶ 22).
  • Crucially:
    • He obtained no tangible personal gain from the scheme (¶ 22, 25).
    • His role pertained to the sale of a single property and constituted a “one‑time” episode (¶ 22).
  • He stipulated to analogous rules (former DR 1‑102(A)(3),(4),(6)), but:
    • He refused to acknowledge the harm (denying any loss despite pleading to >$400k loss),
    • Acted with a dishonest or selfish motive, and
    • The court treated his refusal to accept wrongful nature as an aggravator (¶ 23).
  • The court imposed an indefinite suspension with credit for the 18+ months of interim suspension (¶ 23).

The Fusco majority found Gittinger comparable in terms of rule violations and loss range but still less egregious because:

  • Gittinger did not personally profit, whereas Fusco did (¶ 25).
  • Gittinger’s misconduct was a one‑time transaction; Fusco’s was an extended pattern in 399 matters (¶ 25).

Thus, even though Gittinger resulted in an indefinite suspension, the court used the more lenient credit component there as a contrast to justify withholding credit in Fusco’s more aggravated case.

2. Cases the Court Finds More Instructive: George, King, and Muntean

The court ultimately relied on three cases to calibrate sanction: Disciplinary Counsel v. George, 2020‑Ohio‑2902; Cleveland Metro. Bar Assn. v. King, 2019‑Ohio‑4715; and Disciplinary Counsel v. Muntean, 2010‑Ohio‑6133 (¶ 27).

a. George

In George:

  • The lawyer helped a company defraud more than 70 investors of over $31 million over four years by:
    • Acting as an “escrow agent” and using his trust account to assure investors funds were safe (¶¶ 28–29).
  • He was convicted of conspiracy to commit wire fraud and securities fraud.
  • Aggravators: prior discipline, pattern, multiple offenses, and harm to vulnerable persons (¶ 29).
  • Mitigation: cooperation, strong character evidence, significant community involvement, and criminal penalties including restitution (¶ 29).
  • Sanction: indefinite suspension with no credit for interim suspension (¶ 29).

The Fusco court noted parallels:

  • Long‑running fraudulent schemes;
  • Serious financial crimes; and
  • Indefinite suspensions with no credit as the chosen sanction.

b. King

In King:

  • The lawyer engaged in attempted money laundering of supposed drug proceeds:
    • He proposed forming a corporation to launder drug‑trade profits; accepted $20,000 in marked bills; refunded the money and later wrote checks from his personal account (¶ 30).
  • He was convicted on two counts of money laundering and one count of attempted money laundering (¶ 30).
  • Violations: 8.4(b), 8.4(c), 8.4(h) (¶ 31).
  • Aggravation: dishonest/selfish motive (¶ 31).
  • Mitigation: cooperation, good character and lawyering skills, completed treatment, and criminal sanctions (¶ 31).
  • Sanction: indefinite suspension, no credit for time served (¶ 31).

The court took from King that even where mitigation is fairly strong, an indefinite suspension with no credit can be justified in serious financial‑crime contexts, particularly when there is personal profit and an attempt to facilitate criminal activity.

c. Muntean

In Muntean:

  • The lawyer, as treasurer of a CASA board, converted nearly $50,000 in funds for personal use over a few months (¶ 32).
  • He was convicted of grand theft but received a suspended six‑month sentence conditioned on full restitution (¶ 32).
  • Violations: 8.4(b), (c), and (h) (¶ 33).
  • Aggravators: dishonest/selfish motive, pattern, multiple offenses (¶ 33).
  • Mitigation: full restitution, clean record, cooperation (¶ 33).
  • Sanction: indefinite suspension with credit for time served under interim felony suspension (¶ 33).

The Fusco majority regarded Muntean as similar in the type of wrongdoing—self‑dealing financial theft—and in the presence of the same three aggravators (¶ 34). But they viewed Fusco’s lack of restitution and greater overall financial impact as warranting no credit despite the same ultimate sanction type (indefinite suspension).

3. The Treatment of Fitz as an “Outlier”

The court squarely addressed Disciplinary Counsel v. Fitz, 2022‑Ohio‑3108, where:

  • Fitz was convicted of workers’ compensation fraud (a fourth‑degree felony) for failing to carry required coverage over extended periods, causing nearly $1 million in loss (¶¶ 37–39).
  • He engaged in a pattern of misconduct and acted with a dishonest motive but had more mitigation:
    • No prior discipline, partial restitution, cooperation, and other sanctions (¶ 38).
  • Notably, the court imposed a two‑year suspension with no credit despite more than 2 years and 8 months of interim suspension already served (¶ 39).

In Fusco, the majority concluded that Fitz is an “outlier” (¶ 40) when compared to the broader trend:

  • In many financial- and tax‑crime cases, the norm has been an indefinite suspension, often with some credit.
  • Fitz used a fixed two‑year suspension (with no credit), deviating from that pattern.

Thus, rather than using Fitz to argue for a lesser sanction in Fusco, the court used it to justify returning to the “weight of authority” favoring indefinite suspensions in serious financial‑and tax‑crime cases (¶ 40–41).

4. Survey of “Credit for Time Served” Cases and Thematic Factors

One of the opinion’s most notable features is its extensive survey of prior credit cases (¶¶ 43–55). The court groups them by offense type and notes broad trends:

  • Sex crimes (e.g., child pornography, importuning):
    • “Almost always” no credit (¶ 44), with only one unexplained exception (Ridenbaugh).
  • Felony theft:
    • More likely to deny credit, but some cases granting credit (¶¶ 45–46).
  • Crimes affecting the administration of justice (e.g., obstruction, false statements, tampering):
    • More likely to deny credit, though again with exceptions (¶¶ 47–48).
  • Fraud offenses:
    • Credit is “often” granted in fraud cases (Rohrbaugh, Bereday, Gittinger, etc.) (¶ 49);
    • But some fraud cases deny credit (George, Marshall, Evans, Fitz) (¶ 50).
  • Tax crimes:
    • Generally granted credit, but not universally (¶ 51).
  • Corruption/public‑integrity crimes:
    • More likely to receive credit, but there are clear exceptions (Riley, Sciortino) (¶ 52).
  • Violent and weapons offenses:
    • Outcome more evenly split (¶¶ 53–54).
  • Drug offenses:
    • Also mixed results (¶ 55).

From that review, the court identifies non‑exhaustive factors that have influenced credit decisions (¶ 56–58):

  • Duration of misconduct (one‑time vs. extended pattern);
  • Degree to which the attorney thwarted the administration of justice;
  • Amount of money involved;
  • Cooperation in disciplinary proceedings;
  • Evidence of good character and reputation;
  • Extent of harm to others;
  • Whether the attorney personally profited;
  • Violation of public trust (especially public office or fiduciary roles);
  • Acceptance of responsibility and genuine remorse;
  • Restitution and efforts to make victims whole; and
  • Whether the attorney voluntarily stopped practicing (voluntary interim suspension).

The court emphasizes that:

  • The offense type and length of the interim suspension are not dispositive; and
  • The governing standard remains a totality‑of‑the‑circumstances inquiry (¶¶ 56–63).

C. Legal Reasoning: Why Indefinite Suspension and Why No Credit?

1. Why an Indefinite Suspension?

The court’s reasoning on sanction has three main steps:

  1. Identify the baseline by comparing with prior sanctions in similar financial‑crime cases (¶¶ 24–35, 40–41).
  2. Evaluate the weight of aggravating and mitigating factors under Gov.Bar R. V(13).
  3. Fit Fusco into the prevailing pattern that serious financial fraud by lawyers typically warrants an indefinite suspension, not a short fixed suspension.

Key features driving the indefinite suspension:

  • Scale and Duration:
    • 399 separate matters over more than two and a half years (¶¶ 8, 25, 34).
    • Long‑term, systematic misconduct, not impulsive or isolated.
  • Amount of Fraud:
    • $859,464.44 in inflated medical bills—substantial by disciplinary standards (¶¶ 8, 25, 34–35).
  • Personal Profit:
    • $118,046.05 in bonuses over three years “undeniably increased” by fraud (¶ 8, 35).
  • Pattern and Deceit:
    • Patterned misconduct and multiple offenses (¶ 15).
    • Additional dishonesty when confronted—initial denial, limited admission, and continued minimization (¶ 9, 25).
  • Limited Mitigation:
    • No restitution, no documented disorder causally linked to misconduct, no robust character evidence, and a short actual incarceration period (¶¶ 26–27, 34–35).

Against those aggravators, the usual mitigating factors—clean record, cooperation, and the mere existence of a criminal sentence—could not, in the court’s view, justify a term‑limited suspension such as one or two years. Indefinite suspension allows:

  • A minimum two‑year waiting period before petitioning; and
  • Case‑by‑case assessment of whether Fusco can demonstrate rehabilitation, restitution efforts, and restored fitness.

2. Why No Credit for Time Served?

Under Gov.Bar R. V(17)(D)(2), the court “may allow full or partial credit” against an indefinite or term suspension for time spent under interim felony suspension. The majority frames the inquiry as fundamentally discretionary and context‑bound (¶¶ 56–63).

In applying the identified themes, the court acknowledged factors that favor credit:

  • Fusco has been under an interim suspension since September 21, 2022 (¶¶ 1, 64).
  • He cooperated in the disciplinary proceedings (¶¶ 15, 64).

But the court saw stronger countervailing factors:

  • Not a one‑time event:
    • Misconduct spanned more than two and a half years (¶ 64)—a factor the court often weighs heavily against credit (¶ 57).
  • Short actual imprisonment:
    • He served only about 40 days of an 18‑month sentence (¶ 64), suggesting that criminal punishment has been relatively light compared to the magnitude of harm.
  • Personal profit and extensive harm:
    • Significant personal gain, large dollar amounts, and broad impact on numerous insurers and claim administrators (¶¶ 34–35, 64).
  • No restitution:
    • Unlike many respondents credited with time, Fusco has neither been ordered nor voluntarily chosen to make victims whole (¶¶ 26, 64–65).
  • Limited mitigation and uncertain remorse:
    • The Board did not find strong character evidence or genuine remorse (¶ 64).

Weighing these together, the court concluded that credit would unduly dilute the disciplinary response in light of the breadth and gravity of Fusco’s financial misconduct (¶ 65).

D. DeWine’s Partial Dissent: The Problem of Consistency and Aggregate Punishment

Justice DeWine agreed that an indefinite suspension was substantively appropriate but focused on comparative proportionality and the equitable function of credit for time served.

1. The Aggregate Suspension Issue

DeWine’s core concern is the total amount of time Fusco will remain suspended before he can even apply for reinstatement:

  • Interim suspension began September 21, 2022.
  • By the decision date, Fusco had been suspended 1,171 days (¶ 73).
  • An indefinite suspension triggers a minimum two‑year waiting period before filing for reinstatement (Gov.Bar R. V(25)(A); ¶ 69).
  • Without credit, this yields approximately 1,901 days of total suspension before Fusco can petition (¶ 73).

DeWine contrasts that with other financial‑crime cases where:

  • Attorneys often received credit for their interim suspension; and/or
  • The resulting total suspension period before eligibility for reinstatement was shorter (¶¶ 75–79).

He suggests that the use of credit—to effectively lengthen or shorten the aggregate suspension—has become a de facto but opaque way to adjust sanctions beyond the formal ranges in Gov.Bar R. V(12), and urges that this must be done in a way that treats similar cases similarly (¶¶ 71–72).

2. Comparable Cases and Disparities

DeWine points out:

  • Gittinger: indefinite suspension with full credit, total of about 730 days before petitioning (¶ 76).
  • Kraemer: two‑year suspension with one-year credit and the remainder stayed, totaling about 741 days before petitioning (¶ 76).
  • Muntean: indefinite suspension with credit, totaling about 384 days before petitioning (¶ 77).
  • George and King: more egregious large‑scale or attempted laundering schemes, where total suspensions before eligibility were roughly 1,950–1,997 days (¶ 78).

He underscores that Fusco’s 1,901‑day minimum places him much closer to the most aggravated cases (George and King) than to many closer precedents—despite not being on par with the $31M fraud in George (¶ 78–79).

Thus, DeWine would award at least one year of credit to bring Fusco’s overall suspension more in line with the intermediate range of like financial‑crime cases (¶ 81).

IV. Impact and Doctrinal Significance

A. Solidifying Indefinite Suspension as the Default for Serious Financial Crimes

The opinion reinforces a trend already recognized in Mahoning Cty. Bar Assn. v. Rohrbaugh, 2024‑Ohio‑5127: attorneys convicted of significant financial or tax crimes will usually face an indefinite suspension (¶ 40–41).

Key practical implications:

  • For lawyers involved in insurance fraud, large‑scale billing fraud, investor schemes, theft from organizations, and similar conduct:
    • Term‑limited suspensions (e.g., 1–2 years) are increasingly disfavored.
    • Expect an indefinite suspension unless there is exceptionally strong mitigation (e.g., full restitution, documented disorder causally linked to misconduct, extensive character evidence, long incarceration).
  • For disciplinary counsel and defense counsel:
    • Negotiating stipulations that assume a fixed 1–2 year suspension in serious financial‑fraud cases is now riskier; the court may easily override such joint recommendations.

B. Structured, Though Flexible, Framework for Credit for Interim Felony Suspensions

The decision is particularly important for its systematic explanation of credit determinations:

  • The court clarifies that:
    • Offense category (fraud, theft, sex crimes, etc.) provides a starting point but is not determinative (¶¶ 56–57).
    • The length of time already served under interim suspension is relevant but not controlling (¶¶ 59–63).
  • The opinion bundles the various cases into patterns that practitioners can now use as a quasi‑framework when litigating or negotiating credit issues.

Going forward, attorneys seeking credit for interim felony suspensions—especially in financial‑crime cases—will likely need to:

  • Show a one‑time or short‑duration event rather than a multi‑year pattern;
  • Demonstrate substantial restitution or meaningful efforts to repay or disgorge;
  • Provide strong evidence of remorse, rehabilitation, and character (including OLAP compliance, treatment, and positive community testimonials); and
  • Emphasize cooperation and voluntary steps to limit harm.

The credit analysis in Fusco thus serves as a practical roadmap: it shows what was missing in Fusco’s case and implicitly how future respondents might construct a more compelling record for partial or full credit.

C. The Role of Restitution and Disgorgement

The decision places notable weight on the absence of restitution or disgorgement (¶¶ 26–27, 64–65). This has important signaling value:

  • Where a lawyer has engaged in massive financial misconduct, failure to make the victims whole (or to surrender ill‑gotten gains) will weigh heavily against both:
    • Term‑limited suspensions; and
    • Credit for interim suspension.
  • Conversely, full restitution—as in Muntean and Kraemer—features prominently in cases where credit is granted or where sanctions are less severe.

D. Internal Court Debate and Future Directions

Justice DeWine’s separate opinion exposes an important tension:

  • The majority emphasizes doctrinal themes and the seriousness of misconduct.
  • The dissent stresses comparative proportionality and the risk that the timing of criminal and disciplinary proceedings can arbitrarily lengthen punishment when credit is denied.

While no rule change is announced, DeWine’s footnote (¶ 71 n.1) hints at a policy alternative: expanding the range of formal sanctions (beyond a two‑year maximum term suspension) and granting credit for interim suspension as a matter of course, rather than using credit as an informal lever to adjust total suspension duration.

That idea remains theoretical, but the opinion may catalyze future discussion in rulemaking or future cases about:

  • Whether the current sanction structure and discretionary credit mechanism are sufficiently transparent and predictable; and
  • How to better ensure that “like cases [are] treated alike” without over‑reliance on case‑specific credit determinations.

V. Complex Legal Concepts Simplified

1. What Is an “Interim Felony Suspension”?

Under Gov.Bar R. V(18)(A)(1)(a), when a lawyer is convicted of a felony:

  • The Supreme Court of Ohio issues an interim felony suspension—a temporary but immediate suspension from practice.
  • This happens before any full disciplinary hearing on professional‑conduct charges.

The interim suspension remains in effect until:

  • Disciplinary proceedings are completed and a final sanction is imposed; or
  • The conviction is reversed or vacated.

2. Indefinite Suspension vs. Term Suspension vs. Disbarment

  • Term suspension:
    • Fixed length (from six months up to two years).
    • May be partially or fully “stayed” (i.e., not actually served if conditions are met).
  • Indefinite suspension:
    • No fixed end date.
    • The lawyer may not petition for reinstatement until at least two years after the suspension order (Gov.Bar R. V(25)(A)), and must prove rehabilitation and fitness.
  • Permanent disbarment:
    • The lawyer is permanently prohibited from practicing law.
    • No petition for reinstatement is available.

In Fusco, the court chose the middle category—indefinite suspension—signaling grave concern but leaving open the possibility of eventual reinstatement if Fusco can demonstrate rehabilitation and restitution.

3. “Credit for Time Served” Under Gov.Bar R. V(17)(D)(2)

If the court later imposes a term or indefinite suspension, Gov.Bar R. V(17)(D)(2) allows it to give the attorney credit for the time already spent under an interim felony suspension.

Practically, this can:

  • Shorten the remaining period of suspension; or
  • Count toward the two‑year waiting period before an attorney may petition for reinstatement after an indefinite suspension.

There is no automatic right to credit. It is considered on a case‑by‑case basis based on factors like duration of misconduct, restitution, harm, and personal profit.

4. Aggravating and Mitigating Factors in Sanctioning

Gov.Bar R. V(13) lists factors that either aggravate (increase seriousness) or mitigate (reduce seriousness) of misconduct. Examples:

  • Aggravating:
    • Dishonest or selfish motive;
    • Pattern of misconduct;
    • Multiple offenses;
    • Prior discipline;
    • Harm to vulnerable victims.
  • Mitigating:
    • No prior discipline;
    • Cooperation and full disclosure;
    • Good character and reputation;
    • Restitution or remedial actions;
    • Other penalties (e.g., criminal sentence);
    • Qualifying physical, mental, or substance‑use disorder that contributed to misconduct and is being successfully treated.

In disciplinary practice, these factors shape whether the sanction will be at the low, middle, or high end of the possible range.

5. “Pattern of Misconduct” vs. “Multiple Offenses” vs. “One‑Time” Conduct

  • Pattern of misconduct:
    • Repeated wrongful acts over time (as in Fusco’s many inflated bills over years).
  • Multiple offenses:
    • Violations arising from numerous separate incidents or clients.
  • One‑time violation:
    • Misconduct tied to a single episode, such as one real‑estate closing (Gittinger) or a single altercation.

Patterns and multiple offenses almost always aggravate sanctions and weigh against credit for interim suspensions.

6. OLAP and Mental‑Health/Substance‑Use Mitigation

The Ohio Lawyers Assistance Program (OLAP) helps lawyers with substance‑use and mental‑health issues. Participation can be mitigating when:

  • A diagnosable disorder is shown to have contributed to the misconduct (Gov.Bar R. V(13)(C)(7)(b)); and
  • The lawyer has a favorable prognosis and is engaged in successful treatment (V(13)(C)(7)(d)).

In Fusco, mere testimony about Adderall misuse and OLAP involvement was not enough without the required causal link evidence and prognosis (¶¶ 16–17, 26–27).

VI. Conclusion: Key Takeaways and Broader Significance

Disciplinary Counsel v. Fusco is important not because it breaks radically new ground, but because it consolidates and clarifies existing trends and principles in Ohio’s disciplinary law.

Core takeaways:

  1. Serious financial fraud by lawyers now almost presumptively triggers an indefinite suspension.
    • Fusco’s multi‑year, profit‑driven insurance‑fraud scheme clearly met that threshold, and the court aligned his sanction with similar large‑scale financial‑crime cases like George, King, and Muntean.
  2. Credit for interim felony suspension is a discretionary, fact‑intensive question under Gov.Bar R. V(17)(D)(2).
    • The court’s survey identifies recurring factors—duration, personal profit, restitution, harm level, character evidence—that will guide future cases.
    • Fusco’s long‑term scheme, personal enrichment, and absence of restitution weighed heavily against any credit.
  3. Restitution and concrete rehabilitation efforts are increasingly vital in financial‑crime cases.
    • Where respondents pay restitution, demonstrate documented treatment of contributing disorders, and build strong character records, courts have been more willing to grant credit and sometimes impose less severe sanctions.
  4. The court is attentive to consistency, but internal disagreement remains on how to measure “like cases alike.”
    • The majority focuses on the gravity of misconduct and patterns across many cases.
    • Justice DeWine emphasizes aggregate suspension length and comparability of total punishment, arguing Fusco’s case is an outlier and warrants at least partial credit.

In the broader legal context, Fusco signals to Ohio attorneys that:

  • Engaging in systematic, profit‑motivated fraud—especially involving client or insurer funds—places one squarely in the domain of indefinite suspension, with no guarantee of credit for time already spent under interim suspension.
  • Mitigation must be robust, well‑documented, and oriented toward restitution and rehabilitation to meaningfully affect outcome.
  • Even after an indefinite suspension, reinstatement will require a compelling showing that the lawyer has addressed the causes of misconduct and can again be trusted with the responsibilities of the profession.

In short, Disciplinary Counsel v. Fusco both illustrates and reinforces a disciplinary regime that treats financial integrity as central to the fitness to practice law, and it refines the analytical framework for crediting time served under interim felony suspensions in Ohio.

Case Details

Year: 2025
Court: Supreme Court of Ohio

Judge(s)

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