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Criminal Law Casebook
Ethical Issues and Disciplinary Proceedings
Ethical Issues and Disciplinary Proceedings
Franklin County Criminal Law Casebook
Reproduced with permission from:
David L. Strait
Franklin County Public Defender Office
Ohio Rules of Professional Conduct
In re Original Grand Jury Investigation
(2000), 89 Ohio St. 3d 544 -- Investigator for lead counsel in a capital case obtained letter from client to brother containing threats against others. On advice of the Secretary of the Board of Commissioners on Grievances and Discipline of the Supreme Court, counsel read the letter to the trial judge, then was permitted to withdraw as counsel. Prosecutor subpoenaed the letter. Divided Supreme Court holds it had to be produced. Read opinion carefully for ethical guidance at each stage of the situation's development. Was disclosure optional? Would the situation have been different if counsel did not obtain the letter or did not read it to the trial judge, but managed to pass on the threat otherwise?
Allen County Bar Association v. Williams
, 95 Ohio St. 3d 160,
-- At ¶5: "...(T)he monitoring attorney may not interfere with the attorney-client privilege between the respondent and his clients by reviewing privileged materials without the client's specific waiver of that privilege." At ¶15: "A problem might arise were the monitoring attorney to find in the disciplined attorney's files information concerning a client of his own."
Toledo Bar Association v. Neller
, 102 Ohio St. 3d 1234,
-- When an affidavit is required, the document must be notarized. While federal law accepts unnotarized statements declared subject to the penalties of perjury, Ohio law does not.
Dayton Bar Association v. Sebree
, 104 Ohio St. 3d 448,
, ¶9-- "A motion for default in a disciplinary proceeding supported only by summary, conclusory, and hearsay-filled affidavits is not supported by the prima facie evidence of misconduct required by Gov. Bar. R. V(6)(F)." When possible affidavits of the greivants should be supplied.
Hecht v. Levin
(1993), 66 Ohio St. 3d 458 -- Paragraphs one and two of the syllabus: "(1) A complaint filed with the grievance committee of a local bar association is part of a judicial proceeding. (2) A statement made in the course of an attorney disciplinary proceeding enjoys an absolute privilege against a civil action based thereon as long as the statement bears some reasonable relation to the proceeding. (
Surace v. Wuliger
, 25 Ohio St. 3d 229...approved and followed.)" Also see
Elsass v. Tabler
(1999), 131 Ohio App. 3d 66.
Medina County Bar Association v. Muhlbach
(1998), 83 Ohio St. 3d 224 -- No action taken with regard to the subject matter of the original complaint, but a six month suspended suspension is imposed because lawyer did not comply with rule relating to response upon receipt of notice of a disciplinary complaint.
Cleveland Bar Association v. Mallin
(1999), 86 Ohio St. 3d 310 -- While Rule 4 of the Rules for government of the bar prescribes time limits for the completion of an investigation, they are not jurisdictional. But a nine year delay is unreasonable, warranting dismissal of the complaint.
In re Complaint Against Judge Harper
(1996), 77 Ohio St. 3d 211 -- Void for vagueness complaint advanced attacking two Canons within the Code of Judicial Ethics.
Dishonesty, Deception and General Sleaziness
Disciplinary Counsel v. Kellogg-Martin
, 124 Ohio St. 3d 415,
– In a rape prosecution where the victim’s age at the time of the offense was crucial to the penalty, prosecutor elected to withhold information she was 13, not 12. No violations found. (1) The disciplinary rules do not give rise to a duty to disclose evidence favorable to the defense broader than Criminal Rule 16. (2) Applying United
States v. Ruiz
(2002), 536 U.S. 622, 633, material impeachment evidence need not be disclosed prior to entering into a plea bargain. In the case leading to the ethical complaint, the defendant pled to a lesser offense.
Disciplinary Counsel v. Mitchell
, 124 Ohio St. 3d 266,
– Indefinite suspension for an attorney who lied about his middle name, then as to what state he was licensed to practice in, to a magistrate inquiring as to his professional qualifications. In fact he had been suspended three years previously for failing to register.
Disciplinary Counsel v. Rohrer
, 124 Ohio St. 3d 65,
– Counsel for a juvenile in a homicide case violated a gag order, then lied to the court about the circumstances. Lying to a court warrants an actual suspension.
Disciplinary Counsel v. Rafidi
, 114 Ohio St. 3d 336,
-- Six month actual suspension to lawyer who solicited a relative of an existing client to retain his services. Existing client was concerned he might be implicated in a drug investigation involving the relative and sought advice. After talking to the relative's wife the lawyer went to the jail and was retained at a much higher fee to represent the relative on drug charges.
Columbus Bar Association v. Linnen
, 111 Ohio St. 3d 507,
-- Indefinite suspension for Speaker of the House's Legal Counsel for Taxation and Education, AKA The Naked Photographer. Opinion cites a Nebraska case to the effect that no one ever did anything quite like this before. Respondent faulted for his failure to recognize how his actions affected the victims. No disbarment because maybe a different therapist might come up with a better explanation for respondent's actions.
Disciplinary Counsel v. Krieger
, 108 Ohio St. 3d 319,
-- Actual suspension for former public defender who became romantically involved with, and helped support, a client she initially represented in juvenile court.
Dayton Bar Association v. O'Brien
, 103 Ohio App. 3d 1,
-- Identity theft client with sentencing woes tape recorded a conversation with his attorney, who suggested bringing in a lawyer the judge owed a favor to. Indefinite suspension.
Disciplinary Counsel v. Baumgartner
, 100 Ohio St. 3d 41,
-- Permanent disbarment for attorney whose "misconduct manifested a seemingly inexhaustible campaign to retaliate against anyone and everyone who defied her." Even in ruling on her objections the court only addressed those "amenable to rational analysis."
Butler County Bar Association v. Foster
, 99 Ohio St. 3d 491,
-- Six month suspended suspension to attorney who sent menacing communications suggesting inbreeding to the brother of a pro se litigant. ¶ 9: "Respondent's conduct might have been a reaction to aggressive behavior; as a lawyer, however, he is not permitted to respond in kind. 'Part of the role of an attorney is to remove himself from the emotions of the moment and provide objective counsel and representations to his client, To perform that role, attorneys must hold themselves to the highest standards of professionalism...'"
Disciplinary Counsel v. Wrenn
, 99 Ohio St. 3d 222,
-- Six month suspended suspension for prosecutor who withheld exculpatory information material to the defense and was deceptive at a pretrial as to whether DNA testing had been completed.
Disciplinary Counsel v. Freeman
, 106 Ohio St. 3d 334,
-- Six month actual suspension to an attorney who took nude photos of a client three days after her 18th birthday while he was still providing representation in a criminal case.
Disciplinary Counsel v. Allen,
94 Ohio St. 3d 129,
-- Attorney landed in prison for perjury after having a client execute a false affidavit contending that the father of her children had threatened her and was armed and dangerous. Father was charged with, and arrested for, domestic violence. Attorney given an indefinite suspension.
Disciplinary Counsel v. Furth
, 93 Ohio St. 3d 173,
-- Eagerness to become involved in a celebrated school shooting case in another state, followed by more press releases than adequate representation, coupled with other violations leads to disbarment.
Office of Disciplinary Counsel v. Fowerbaugh
(1995), 74 Ohio St. 3d 187 -- Syllabus: "When an attorney engages in a course of conduct that violates DR 1-102(A)(4) [engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation], the attorney will be actually suspended from the practice of law for an appropriate period of time."
Office of Disciplinary Counsel v. Greene
(1995), 74 Ohio St. 3d 13 -- Syllabus: "When a lawyer intentionally misrepresents a crucial fact to a court in order to effect a desired result to benefit a party, the lawyer will be suspended from the practice of law in Ohio for an appropriate period of time." Assistant prosecutor misrepresented reason for dismissing traffic ticket issued the wife of a Highway Patrol officer.
Disciplinary Counsel v. Washington
(1997), 78 Ohio St. 3d 54 -- Six month suspension for attorney appointed to handle an appeal, who farmed it out to a drug-impaired attorney not licensed to practice in Ohio, and who misrepresented reasons for extension requests.
Disciplinary Counsel v. Lynch
(1994), 71 Ohio St. 3d 287 -- Six month suspension for attorney who executed false affidavit that client had not been convicted following reversal of rape conviction, though he had in fact appeared in court with the client when a negotiated plea was entered.
Cincinnati Bar Association v. Deardorff
(1998), 84 Ohio St. 3d 85 -- One and two year suspensions to law partners who represented a domestic violence defendant and gave legal advice to the alleged victim, who claimed she had filed a false affidavit, but working for the police, tape recorded a meeting with the lawyers which led to them being charged with obstructing justice. (1) Discussion of contingent courses of action if motion to dismiss was denied violated disciplinary rules. (2) Fee was collected from purported victim. Though not called a conflict, representation of both victim and defendant said to be "inimical to the administration of justice." (3) One of the attorneys implied to victim part of fee would go to the judge as a bribe, disguised as a campaign contribution. No comment on this was made in disposition of the case.
Stark County Bar Association v. Russell
(1986), 25 Ohio St. 3d 124 -- City law director who also continued private law practice received a one year suspension from practice in the following circumstances. In the course of a deposition, he got into a personal argument with a witness. Afterwards he told the witness "Don't get smart with me or you won't get out of this town." After the witness, in the court's words, "retorted with somewhat of a derogatory remark to the effect that he would nail (the law director's) posterior to the wall," the law director charged the witness with aggravated menacing. These charges were unfounded and dismissed.
Disciplinary Counsel v. Booher
(1996), 75 Ohio St. 3d 509 -- One year suspension for appointed counsel who engaged in sexual activity with client in jail interview room. Also see
Cleveland Bar Association v. Feneli
(1999), 86 Ohio St. 3d 102.
Disciplinary Counsel v. Cicero
(1997), 78 Ohio St. 3d 351 -- One year suspension for boasting of intimate relationship with a judge.
Cincinnati Bar Association v. Nienaber
(1997), 80 Ohio St. 3d 534 -- Indefinite suspension for attorney who misrepresented client's record for OMVI to two judges hearing pending charges on the same day. Technical justification offered in response to ethics charges may have helped increase penalty from the recommended two-year suspension.
Office of Disciplinary Counsel v. Hazelkorn
(1985), 18 Ohio St. 3d 297 -- Indefinite suspension for attorney who knowingly went along with client's misrepresentation of his true identity to the court.
Fees and Money Handling
Toledo Bar Association v. Pheils
, 129 Ohio St. 3d 279,
– Suspension to an attorney who loaned a client money, supposedly provided by his wife. Client was eager to settle.
Toledo Bar Association v. Stahlbush
, 126 Ohio St. 3d 366,
– Attorney handing primarily appointed cases padded his billing, charging for more than 24 hours work on three dates, and 139.5 hours in a 144 hour period., and 3,451 hours in 2006. Two year suspension, one year stayed.
Disciplinary Counsel v. Laatsch
, 123 Ohio St. 3d 140,
– A single overdraft on an IOLTA account led to an investigation and a suspended suspension for an attorney who had advanced money to a long time client for whom he was a father figure. Only one justice thought a public reprimand was the appropriate remedy.
Disciplinary Counsel v. Johnson
, 106 Ohio St. 3d 365,
-- Actual suspension to attorney who billed an impossible number of hours per day by submitting multiple claims for the same hours in and out of court while representing multiple clients during the same court sessions through appointments from the juvenile court. Also see
Disciplinary Counsel v. Holland
, 106 Ohio St. 3d 372,
Disciplinary Counsel v. Agopian
, 112 Ohio St. 3d 103,
-- Public reprimand to attorney who on the weekend reconstructed hours billed for serving as appointed counsel, sometimes indicating more hours worked in a day than was credible. Accounting practices are faulted, but the court finds no dishonest motive since he worked at least as many hours on each case as he billed for and was subject to a low cap.
Geauga County Bar Association v. Bruner
, 98 Ohio St. 3d 312,
-- Indefinite suspension to attorney who withheld social security and medicare payments from his secretary's pay for ten years without forwarding payment to the IRS.
Disciplinary Counsel v. McCord,
96 Ohio St. 3d 21,
-- Attorney refused to pay arbitrator's award in a fee dispute or the judgment obtained to enforce that award. Attorney was bound by the award, regardless of its correctness. Six month suspension.
Cincinnati Bar Association v. Nienaber
(1994), 68 Ohio St. 3d 459 -- Appointed counsel turned in expenses said to relate to taking a deposition in Florida, which turned out to include the cost of taking his wife and child along, then renting a car after the deposition and driving to Disney World. He also claimed the time spent as Disney World as billable hours. Six month suspension.
Disciplinary Counsel v. Massey
(1998), 80 Ohio St. 3d 605 -- Six month suspension to lawyer who sent a letter to client suggesting methods for payment of demanded $30,000 fee while avoiding requirement that cash transactions of $10,000 or more be reported to the IRS.
Cincinnati Bar Association v. Cohen
(1999), 86 Ohio St. 3d 100 -- Public reprimand to attorney who threatened to file passing bad checks charge against client whose checked bounced, and whose account remained unpaid. Held to violate DR7-105 (A lawyer shall not threaten to present criminal charges solely to gain advantage in a civil matter.)
Cincinnati Bar Association v. Smith
(1993), 67 Ohio St. 3d 71 -- Attorney disciplined for abandoning post-conviction cases without refund of unearned fees, where cases had been referred by a disbarred lawyer and doubts had developed as to probity of the claims advanced.
Cleveland Bar Association v. Cox
(1998), 83 Ohio St. 3d 218 -- $4500 said to be a clearly excessive fee for filing a shock probation motion.
Cleveland Bar Association v. Mineff
(1995), 73 Ohio St. 3d 281 -- Public reprimand for attorney who on request gave money to worker's compensation client who appeared destitute, even though stated facts indicate clearly charitable purpose, and no effort was made to seek repayment. Two justices would have imposed a suspension.
Disciplinary Counsel v. Siehl
, 123 Ohio St. 3d 480,
– Indefinite suspension to attorney who did nothing after being appointed to handle a postconviction case, then blew off disciplinary proceedings.
Disciplinary Counsel v. Gaul
, 127 Ohio St. 3d 16,
– Six month suspended suspension to common pleas court judge who flew off the handle when an elderly crime victim did not appear at trial. He believed the defendant conspired with the victim’s caregiver to secure her absence. Multiple violations detailed. Expert testimony properly excluded. Jail phone call recordings establishing the judge was correct in his suspicion also properly excluded. According to news coverage the defendant filed the complaint. Judge was not contrite during disciplinary proceedings, and feuded with Disciplinary Counsel.
Disciplinary Counsel v. Frost
, 122 Ohio St. 3d 219,
– Lawyer whose practice included litigating claims of discrimination developed a pattern of lashing out at judges, opposing counsel and others with claims of discrimination, illegal conduct, and defamation. Her conduct before the hearing panel on the complaint showed a lack if understanding of fundamental evidentiary and procedural rules. Indefinite suspension imposed, with proof of mental fitness made a condition of reinstatement.
Disciplinary Counsel v. Yeager
, 123 Ohio St. 3d 156,
– Attorney had a melt down and abandoned client in the middle of a trial court hearing on sanctions for her prior misrepresentations. She may have moved to New York, and did not cooperate in disciplinary proceedings, leading to an indefinite suspension.
Columbus Bar Association v. Vogel
, 117 Ohio St. 3d 108,
– Disrespectful conduct and rough and tumble allegations against judges and prosecutors, already punished as contempt, leads to two year suspension.
Disciplinary Counsel v. Stuard
, 121 Ohio St. 3d 29,
– Judge asked a prosecutor to draft his sentencing opinion in a capital case. Public reprimand to both.
Disciplinary Counsel v. Kelly
, 121 Ohio St. 3d 39,
– Magistrate unethically provided pro bono legal services to the county humane society where she served as treasurer. Indefinite suspension primarily the result of stealing $40,000 from the society.
Cincinnati Bar Association v. Schmalz
, 123 Ohio St. 3d 130,
– Defendant complained to the bar association that he had gone to trial instead of accepting a plea bargain hoping acquittal would allow their romantic relationship to continue. Relationship was limited to monitored calls from the jail. Public reprimand because the attorney effectively performed her function as counsel.
Disciplinary Counsel v. Sartini & Tarighati
, 114 Ohio St. 3d 205,
-- Public reprimand to county prosecutor and assistant who used a defendant's mother as a intermediary in plea negotiations without consent of appointed counsel.
Disciplinary Counsel v. Geer
, 112 Ohio St. 3d 124,
-- Attorney ran up a $396,959 support arrearage and did not respond to complaint. One year actual suspension. Dissenters would simply continue the already in place interim suspension, since the additional suspension only harms the children by precluding a return to practice if the arrearage can be resolved. Also see
Disciplinary Counsel v. Curry
, 112 Ohio St. 3d 130,
Columbus Bar Association v. Dougherty
, 105 Ohio St. 3d 307,
-- Public reprimand to attorney who notarized the signature on an application for a temporary liquor permit without witnessing the signature. Three justices would have imposed a six month actual suspension. Also see
Mahoning County Bar Association v. Melnick
, 107 Ohio St. 3d 240,
Disciplinary Counsel v. Freedman
, 110 Ohio St. 3d 284,
Cincinnati Bar Association v. Gottesman
, 115 Ohio St. 3d 222,
Disciplinary Counsel v. Gardner
, 99 Ohio St. 3d 416,
-- Six month actual suspension to attorney who attacked the probity of the Court of Appeals in a motion for reconsideration/motion to certify following a disappointing decision. The First Amendment does not insulate an attorney from professional discipline for expressing an opinion, during court proceedings, that a judge is corrupt when the attorney knows that the opinion has no factual basis or is reckless in that regard. The Free Speech Clause of the Ohio Constitution provides broader protection of false statements expressed as an opinion but not here. Nor are the attorney's actions to be weighed in a manner corresponding to defamation cases. Also see
State v. DeMastry
, 155 Ohio App. 3d 110,
, ¶ 76-80.
Disciplinary Counsel v. LoDico
, 106 Ohio St. 3d 229,
-- Actual suspension to attorney whose conduct in criminal cases drew contempt citations and jail sentences. Mindful of the demands of criminal practice, the process should not devolve into a barroom brawl.
Disciplinary Counsel v. Armengau
, 99 Ohio St. 3d 55,
-- Public reprimand to attorney who inserted his own contrived experience borrowing a car overnight from a dealership into questioning during the trial of a former employee charged with unauthorized use of a motor vehicle.
Cincinnati Bar Association v. Sauter
96 Ohio St. 3d 136,
-- Public reprimand for (former) Court of Appeals law clerk who e-mailed advice to a city solicitor concerning an upcoming panel's views on the definition of "abuse of discretion."
Disciplinary Counsel v. Noethlich
(2002), 94 Ohio App. 3d 124 -- Six month suspension to attorney who continued to practice during a CLE suspension, filed a false affidavit with the Supreme Court stating he had notified all clients of the suspension, and who failed to register with the Supreme Court for the 1997/1999 and 1999/2001 biennium periods.
Disciplinary Counsel v. Klass
(2001), 91 Ohio St. 3d 86 -- One year suspension for attorney who warned a former client she thought might be a drug dealer that local authorities and the FBI were about to conduct drug raids. Attorney also served time in jail for attempted obstruction of justice.
Disciplinary Counsel v. Pavlik
89 Ohio St. 3d 458,
-- Law firm engaged a specialist in corporate restructuring who was admitted in Illinois and the Northern District of Ohio to perform services for clients. Clients were not made aware of lawyer's limited ability to practice law in this state. Public reprimand to member of firm most responsible for this situation.
Cincinnati Bar Association v. Young
(2000), 89 Ohio St. 3d 306 -- Syllabus: "A finding of discrimination by the Ohio Civil Rights Commission, the Equal Employment Opportunity Commission, or a state or federal court is not a prerequisite to the Board of Commissioners on Grievances and Discipline finding that an attorney violated DR 1-102(B)." Repeated indefensible misconduct towards women employees nets a two-year suspension, second year suspended.
Disciplinary Counsel v. Grove
(2000), 90 Ohio St. 3d 312 -- Public reprimand to public defender who elected not to notify twelve clients of appeals taken by the prosecutor, and who failed to file briefs in those cases.
Allen County Bar Association v. Williams
, 92 Ohio St. 3d 104,
-- Six month suspended suspension for attorney who voluntarily dismissed an appeal without proper consultation with client.
Mahoning Bar Association v. Sheftel,
92 Ohio St. 3d 137,
-- Public reprimand for attorney who failed to cooperate in investigation of complaint that was dismissed on its merits.
Disciplinary Counsel v. Hanni
, 94 Ohio St. 3d 446,
-- Six month suspended suspension for attorney who counselled with target of an extortion scheme, then showed up for arrest and arraignment of person charged with that attempt three and a half years later. Identity if the extortionist was not disclosed at the prior meeting. At that time matters were resolved by ascertaining that the target did not face indictment as threatened. Attorney later claimed not to remember this meeting. His fault lay in not keeping adequate notes and in not refunding fee, both reflecting on fitness to practice.
Columbus Bar Association v. Ross
, 107 Ohio St. 3d 354,
-- Six month suspended suspension to attorney who did not ignore the possibility of a conflict of interest in continued representation of boyhood friends, but waited too long before exiting their cases. Feds wanted one to identify the other as his drug supplier, but would not provide the attorney with more specific information as to a basis for this belief.
Ohio St. Bar Association v. Mayer
(1978), 54 Ohio St. 2d 431 -- As to a judge's claim that violations of the Code of Judicial Conduct and Canons of Judicial Ethics were justified as an exercise of his rights under the First Amendment, the court adopts the following passage from
In re Sawyer
(1959), 360 U.S. 622, 646-647 (Stewart, concurring): "A lawyer belongs to a profession with inherited standards of propriety and honor, which experience has shown necessary in a calling dedicated to the accomplishment of justice. He who would follow that calling must conform to those standards. Obedience to ethical precepts may require abstention from what in other circumstances might be constitutionally protected speech."
Columbus Bar Assn. v. Riebel
(1982), 69 Ohio St. 2d 290 -- Attorney publicly reprimanded for repeated use of insulting and obscene language at conferences and in correspondence. At p. 292: "The zeal employed by an attorney in guarding the interests of his clients must always be tempered so as not to inject his personal feelings or display a demeanor that subjects parties to a proceeding or opposing counsel to certain indignities."
Bar Association of Greater Cleveland v. Milano
(1984), 9 Ohio St. 3d 86 -- Though attorney's contemptuous statements regarding the judge's conduct of the trial may have had some basis in fact, breaches of courtroom decorum were a violation of DR 7-106(C), leading to a one year suspension instead of the public reprimand recommended by Board of Commissioners on Grievances and Discipline of the Bar.
Disciplinary Counsel v. Allen
(1997), 79 Ohio St. 3d 494 -- Public reprimand for judge who appeared on the bench, in her robe, in a commercial for a law firm.
Disciplinary Counsel v. Beane
(1995), 72 Ohio St. 3d 480 -- Six month suspension for attorney who was repeatedly derelict in registration, in meeting CLE requirements and in responding to correspondence from disciplinary counsel.
Disciplinary Counsel v. Brown
(1998), 84 Ohio St. 3d 1 -- Indefinite suspension for attorney who continued to practice during a suspension for CLE noncompliance. Also see
Akron Bar Association v. Barron
(1999), 85 Ohio St. 3d 167.
Cuyahoga County Bar Association v. Bogart
(1999), 86 Ohio St. 3d 38 -- Eighteen month suspension with probation for attorney who appeared in court under the influence of alcohol.
In re Application of Stage
(1998), 81 Ohio St. 3d 554 -- While an application for admission to the Ohio bar without taking the bar examination is pending, it is unauthorized practice to use a letterhead bearing the title general counsel or managing counsel, unless there is notice that the subject is not licenses to practice in this state.
Disciplinary Counsel v. Smith
, 124 Ohio St. 3d 49,
– Two years out of law school lawyer became counsel for New York State residents injured in a car crash. Under their policy, payments were made directly to the hospitals where they were treated, under a personal-injury-protection portion of their policy, which under New York law was not subject to contingent fees. He also collected from the other driver’s policy, and at the direction of his employer deducted the lost contingency fees from the New York coverage from the disbursement. Public reprimand. “Just following orders” does not excuse this conduct.
Everage v. Elk & Elk
, 159 Ohio App. 3d 220,
-- Gov. Bar. R. V(11)(E) makes all documents relating to review and investigation of grievances private unless waived by the respondent attorney. Such documents may not be reached through discovery. Disciplinary proceedings become public only when certified by a probable cause panel.
David L. Strait
Copyright © Franklin County Public Defender and David L. Strait, 2015
Contents may not be duplicated without express permission.