Ohio State Bar Assn. v. Winkler

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Ohio

State Bar Assn. v. Winkler, Slip Opinion No. 2024-Ohio-3141.]

NOTICE

This slip opinion is subject to formal revision before it is published in an

advance sheet of the Ohio Official Reports. Readers are requested to

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65

South Front Street, Columbus, Ohio 43215, of any typographical or other

formal errors in the opinion, in order that corrections may be made before

the opinion is published.

SLIP OPINION NO. 2024-OHIO-3141

OHIO STATE BAR ASSOCIATION v. WINKLER.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as Ohio State Bar Assn. v. Winkler, Slip Opinion No.

2024-Ohio-3141.]

Judges—Misconduct—Violations of the Rules of Professional Conduct—Public

reprimand.

(No. 2024-0488—Submitted May 7, 2024—Decided August 21, 2024.)

ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme

Court, No. 2023-032.

__________________

The per curiam opinion below was joined by KENNEDY, C.J., and DEWINE,

DONNELLY, and STEWART, JJ. FISCHER, BRUNNER, and DETERS, JJ., did not

participate.

SUPREME COURT OF OHIO

Per Curiam.

{¶ 1} Respondent, Ralph Edward Winkler, of Cincinnati, Ohio, Attorney

Registration No. 0037930, was admitted to the practice of law in Ohio in 1987. He

was elected to the Hamilton County Court of Common Pleas, Probate Division, in

November 2014 and was reelected in 2020. He has previously served as a judge of

the Hamilton County Court of Common Pleas, General Division, and the Hamilton

County Municipal Court.

{¶ 2} In an October 2023 complaint, relator, Ohio State Bar Association,

charged Winkler with professional misconduct for permitting court staff to make

inaccurate comments to the press about a pending guardianship case and for then

posting similar comments to the court’s Facebook page himself. Winkler waived a

determination of probable cause and, in his answer, admitted every allegation

contained in the complaint. The parties submitted stipulations of fact, misconduct,

and aggravating and mitigating factors, along with 32 stipulated exhibits.

{¶ 3} Winkler was the only witness to testify at his hearing before a three-

member panel of the Board of Professional Conduct. The panel issued a report in

which it found by clear and convincing evidence that Winkler had committed four

violations of the Code of Judicial Conduct and recommended that we publicly

reprimand him. A fifth alleged rule violation was unanimously dismissed on the

joint motion of the parties. The board adopted the panel’s findings of fact,

conclusions of law, and recommended sanction. We adopt the board’s findings of

misconduct and publicly reprimand Winkler.

BACKGROUND

{¶ 4} Winkler’s misconduct in this case arises out of a conservatorship and

guardianship for Mary Frances McCulloch administered by the Hamilton County

Court of Common Pleas, Probate Division, that predates Winkler’s election to that

bench. In 2013, McCulloch was an 83-year-old widow with three adult children:

Theresa McClean, Kathleen Bosse, and John Robert (“Rob”) McCulloch.

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{¶ 5} In July 2013, McCulloch, with the aid of counsel, filed an application

for appointment of a conservator in which she alleged that she was a competent

adult who was physically infirm and sought to have an attorney (who was not a

family member) appointed as her conservator. The probate court granted the

application and appointed the attorney as McCulloch’s conservator. In August,

Theresa applied to terminate the conservatorship on the ground that McCulloch was

mentally incompetent. Theresa filed an application to be appointed as McCulloch’s

guardian, and McCulloch’s conservator filed a contingent guardianship application.

{¶ 6} In March 2014—ten months before Winkler took the probate-court

bench—the court adopted a magistrate’s decision declaring McCulloch

incompetent, effectively terminating the conservatorship, see R.C. 2111.021, and

appointing the attorney who had served as her conservator as her guardian. In the

fall of 2015, the guardian resigned, and Winkler, as the sole probate-court judge,

granted an application to appoint another attorney as a successor guardian.

{¶ 7} In the years that followed, Rob and Kathleen sent numerous letters

and emails to the probate court accusing the guardian of misconduct and

complaining about the guardianship process. Those communications were filed in

the guardianship as comments or complaints, applications for removal of the

guardian, or exceptions to the guardian’s accounts. On one occasion, Winkler

denied a motion that Rob had filed to set aside a magistrate’s order overruling his

objections to the guardian’s actions.

{¶ 8} In addition, Winkler learned that three websites had been created

using the names of the guardian and two probate-court magistrates. Although the

creators of the websites were not identified, the content of those websites resembled

the complaints that Rob and Kathleen had filed with the court and was critical of

the guardian, the probate court, and the magistrates.

{¶ 9} In March 2019, a detective with the Hamilton County Prosecutor’s

Office sent Rob a letter regarding “threatening and harassing correspondence” he

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had allegedly sent to a probate-court magistrate and several of the assistant county

prosecutors. The letter directed Rob to have no further contact with the magistrate

or the prosecutor’s office regarding McCulloch’s guardianship.

MISCONDUCT

{¶ 10} In January 2019, a reporter with the news outlet Richland Source

contacted the probate court regarding McCulloch’s case. Winkler has stipulated

that he had authorized the assistant court administrator, Scott Weikel, who was

under Winkler’s supervision and control, to address public inquiries on behalf of

the court. Weikel spoke to the reporter and informed her that McCulloch “was

removed from her home because it was a squalid, unsafe living environment” and

Rob “was not properly caring for her.” The reporter sent Rob an email informing

him of what Weikel had said and asking him for a response.

{¶ 11} In October 2020, the court received a letter addressed to Winkler

from Kathleen stating that Weikel’s statements to the reporter were incorrect. The

letter, which included a timeline of events and certain records related to the

guardianship proceeding, was filed by the court and forwarded to the guardian.

Although the letter was part of the record in the guardianship case, Winkler did not

review it.

{¶ 12} At all times relevant herein, the probate court has maintained a

Facebook page titled “Hamilton County Probate Court, Judge Ralph Winkler.” At

his disciplinary hearing, Winkler testified that the page had been set up by his

predecessor but that he took it over and added his own name to the page when he

became the probate-court judge.

{¶ 13} On October 23, 2020, Winkler posted an interview on his court

Facebook page titled “14 questions with Kendal M. Coes.” Nearly two years later,

on October 7, 2022, Rob made a comment on Winkler’s post that was critical of

Magistrate Coes. That night, Winkler posted the following response:

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January Term, 2024

Rob McCulloch you’re just mad because we had to intercede

and take care of your mother when you did not. You were living in

your Mothers house in deplorable conditions. I am glad a nice

neighbor called Senior Services and we got your Mother into a safe,

Clean and healthy care facility. God only knows what would have

happened to her if a Good Samaritan neighbor had not reported this

elder abuse. The home photos in evidence don’t lie. Anyone in the

public can look at them as they are part of your Mother’s case file.

{¶ 14} At his disciplinary hearing, Winkler testified that Rob posted a reply

to his response, to which Winkler then responded with:

You lost your case because you were wrong. You

interviewed this poor woman with dementia with leading and

suggestive questions to try to prove you weren’t wrong. However,

you were wrong for not taking care of your mother. When you did

make it to Court you often reeked of alcohol. Plus, You also missed

many hearings for unknown reasons. Don’t try to blame my court

or Magistrate Coes for your shortcomings as a son. I am glad your

neighbor reported this to the Authorities. Your mother could have

died or suffered needlessly if my Court didn’t help her.

{¶ 15} Winkler has stipulated that the statements he and Weikel made about

McCulloch’s being removed from her home due to poor living conditions were

incorrect, misleading, and unsupported by the record in the guardianship case. In

fact, the record shows that McCulloch’s guardian had moved her to an assisted-

living-memory-care unit on the belief that she would benefit from the increased

structure, supervision, and activities available at the facility. And in his testimony

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before the panel, Winkler acknowledged that the photographs he had recalled

seeing in the record depicted the condition of McCulloch’s home around the time

that the guardian sought the court’s permission to sell the home—sometime after

McCulloch had moved to the assisted-living facility.

{¶ 16} In addition, Winkler admitted that several other items in his

responses to Rob on Facebook were inaccurate, including his claims that a neighbor

had called senior services about McCulloch, that McCulloch was the victim of elder

abuse, and that the court had been required to intercede to take care of McCulloch

because Rob had failed to do so. Winkler further stipulated that there was no

evidence to suggest that a lack of care by Rob or any other family member had

necessitated McCulloch’s guardianship. Although the board determined that

Winkler had not intentionally posted inaccurate information, the parties stipulated

and the board found that he had posted those comments without reviewing the

record or otherwise refreshing his memory about McCulloch’s guardianship case.

{¶ 17} Winkler testified that within a couple hours of posting those

comments, he realized that he should not have done so and deleted the posts. He

deleted or “hid” Rob’s comments and his responses so that they could no longer be

viewed on the court’s Facebook page and promptly handed over control of the page

to two staff members so that he would no longer have the ability to post things on

his own. On relator’s suggestion, Winkler recused himself from McCulloch’s

guardianship proceeding in August 2023.

{¶ 18} The parties presented Facebook statistics demonstrating that in the

more than three years that Winkler’s 2020 post about Magistrate Coes had been

visible on Facebook, it had reached 206 people and made 235 “impressions.”1

1. Facebook defines “reach” as “the number of people who [see] any content from [a] Page or about

[a] Page. This metric is estimated.” “Impressions” are defined as “the number of times any content

from [a] Page or about [a] Page entered a person’s screen.” Facebook, Differences between Page

views, reach and impressions, https://www.facebook.com/help/274400362581037

/?helpref=uf_share (accessed July 19, 2024) [https://perma.cc/HMD8-KSU4].

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However, it is unknown whether anyone other than Rob saw Winkler’s 2022

comments before Winkler voluntarily removed them.

{¶ 19} When questioned about the court’s current media policy, Winkler

testified that the policy is to comment without disclosing details about pending

cases. He explained that the court obtains signed releases from families authorizing

him to talk about their cases in interviews or Facebook posts about the court’s

“adoption day” programs.

{¶ 20} The parties stipulated and the board found by clear and convincing

evidence that Winker’s conduct violated Jud.Cond.R. 1.2 (requiring a judge to act

at all times in a manner that promotes public confidence in the independence,

integrity, and impartiality of the judiciary, and to avoid impropriety and the

appearance of impropriety), 2.8(B) (requiring a judge to be patient, dignified, and

courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge

deals in an official capacity), 2.10(A) (prohibiting a judge from making any public

statement that might reasonably be expected to affect the outcome or impair the

fairness of a matter pending in any court and from making any nonpublic statement

that might substantially interfere with a fair trial or hearing), and 2.10(C) (requiring

a judge to require court staff, court officials, and others subject to the judge’s

direction and control to refrain from making statements that the judge would be

prohibited from making under this rule). We adopt these findings of misconduct.

RECOMMENDED SANCTION

{¶ 21} When imposing sanctions for judicial misconduct, we consider all

relevant factors, including the ethical duties that the judge violated, the aggravating

and mitigating factors listed in Gov.Bar R. V(13), and the sanctions imposed in

similar cases.

{¶ 22} The parties stipulated and the board found that just two aggravating

factors are present in this case—Winkler’s multiple offenses and the vulnerability

of and resulting harm to victims of the misconduct. See Gov.Bar R. V(13)(B)(4)

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and (8). The board pointed to this court’s precedent establishing that lawyers

“possess, and are perceived by the public as possessing, special knowledge of the

workings of the judicial branch of government,” (cleaned up) Erie-Huron Cty. Bar

Assn. v. Bailey & Bailey, 2020-Ohio-3701, ¶ 50. The board noted that this is

especially true for judges. Consequently, the board found that Winkler’s inaccurate

statements regarding the inception of McCulloch’s guardianship and Rob’s alleged

culpability “could have been perceived as reliable and difficult to defend against.”

We find that this is also true of the statement issued by Weikel as a spokesperson

for the Hamilton County Probate Court while under the supervision and control of

Winkler—the sole judge of that court.

{¶ 23} As for mitigating factors, the parties stipulated that Winkler has a

clean disciplinary record, did not act with a dishonest or selfish motive, made full

and free disclosure to the board and exhibited a cooperative attitude toward the

disciplinary proceedings, and submitted evidence of his good character and

reputation. See Gov.Bar R. V(13)(C)(1), (2), (4), and (5).

{¶ 24} The board adopted those stipulated mitigating factors and also found

that Winkler made a timely, good-faith effort to rectify the consequences of his

misconduct by voluntarily removing his Facebook comments shortly after posting

them and promptly handing off control of the court Facebook page to staff

members. See Gov.Bar R. V(13)(C)(3). Winkler testified that the conduct at issue

in this case was out of character for him. Indeed, there is no evidence that Winkler

has ever done anything like this before, and he testified that he would never do it

again. He did not attempt to excuse his conduct but explained that it was motivated

in part by a desire to defend Magistrate Coes from what he perceived to be Rob’s

unjust attack.

{¶ 25} The board found that Winkler acknowledged his misconduct and

concluded that he is highly unlikely to repeat it. Furthermore, the board credited

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Winkler for his forthright acknowledgment of his misconduct and on-the-record

apology to Rob McCulloch for his inaccurate statements.

{¶ 26} The parties agreed that a public reprimand is the appropriate sanction

for Winkler’s misconduct in this case. The board considered several cases

advanced by the parties in support of that sanction, including two recent cases with

comparable behavior.

{¶ 27} In Disciplinary Counsel v. Berry, 2021-Ohio-3864, we imposed a

conditionally stayed six-month suspension on a judge who sent numerous Facebook

messages to a court employee containing images, memes, or links to videos that

were overtly partisan or vulgar, and occasionally sexually suggestive. Id. at

¶ 20-21.

{¶ 28} We imposed a similar conditionally stayed suspension in

Disciplinary Counsel v. O’Diam, 2022-Ohio-1370. There, O’Diam, a probate

judge, berated an estate beneficiary in his courtroom for nearly an hour because the

beneficiary publicly questioned the apparent conflict of interest created by the

judge’s permitting his own daughter to practice law in his courtroom. O’Diam then

permitted his daughter—an attorney who we concluded was under his direction and

control—to interrogate the beneficiary in an intemperate manner and without

restriction for more than 15 minutes. The following week, the judge denigrated the

beneficiary by making public comments before the county board of commissioners.

Finding that O’Diam had planned his course of action against the beneficiary rather

than acting in the heat of the moment, we imposed a six-month suspension for his

misconduct but stayed the entire suspension on the conditions that he commit no

further misconduct and complete six hours of continuing legal education focused

on judicial demeanor, civility, and professionalism. Id. at ¶ 61, 63.

{¶ 29} The board concluded that Winkler’s misconduct was less egregious

than the misconduct at issue in Berry and O’Diam. Finding that Winkler

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recognized his misconduct and was highly unlikely to engage in similar misconduct

in the future, the board recommends that we publicly reprimand him.

DISPOSITION

{¶ 30} The primary purposes of judicial discipline are to protect the public,

guarantee the evenhanded administration of justice, and maintain and enhance

public confidence in the integrity of the judiciary. Disciplinary Counsel v. O’Neill,

2004-Ohio-4704, ¶ 33. Sanctions serve as a deterrent to similar violations by

judicial officers in the future, they notify the public of the self-regulating nature of

the legal profession, and they build confidence in the legitimacy and integrity of

the judiciary. Disciplinary Counsel v. Horton, 2019-Ohio-4139, ¶ 60.

{¶ 31} In this case, Winkler and Weikel—a court administrator who was

under Winkler’s supervision and control—made inaccurate, inappropriate, and

inflammatory statements regarding the facts of a pending case that were not

supported by the record. Although it appears that Winkler’s statements were only

visible on Facebook for a short time and that Weikel’s statements were not widely

broadcast to the public, Rob learned of both statements and shared at least one of

them with Kathleen.

{¶ 32} Both Rob and Kathleen were active participants in the guardianship

proceeding. They had a legitimate interest in ensuring that their mother received

appropriate care and had access to her family and that her funds were prudently

expended by her guardian to achieve those ends. While Winkler may have been

frustrated by their criticisms or the means by which they sought to achieve their

objectives, he was nonetheless obligated under the Ohio Code of Judicial Conduct

to (1) act at all times in a manner that promotes public confidence in the

independence, integrity, and impartiality of the judiciary to avoid impropriety and

the appearance of impropriety, Jud.Cond.R. 1.2, (2) be patient, dignified, and

courteous to litigants and others with whom he dealt in an official capacity,

Jud.Cond.R. 2.8(B), (3) refrain from making any public statement that could

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reasonably be expected to impair the fairness of a matter pending in any court,

Jud.Cond.R. 2.10(A), and (4) require court staff and others under his direction and

control to refrain from making any statements that he, himself, would be prohibited

from making, Jud.Cond.R. 2.10(C).

{¶ 33} Winkler violated each of those duties by personally making

statements incorrectly asserting that Rob had neglected and abused his mother and

by allowing an authorized spokesperson for the court to make similar misstatements

about Rob. Beyond being personally hurtful to Rob and Kathleen, there can be no

doubt that those inaccurate statements served to further erode Rob’s and Kathleen’s

already dim confidence in the integrity, impartiality, and legitimacy of the court.

{¶ 34} Although Winkler’s misconduct consists of two isolated events, he

committed multiple rule violations and caused harm to vulnerable victims.

However, he also has a clean disciplinary record, did not act with a dishonest or

selfish motive, and fully cooperated in the disciplinary proceeding. In addition, he

has submitted 26 letters attesting to his good character and reputation. Those

letters, including one from a judge, 15 from attorneys, and ten from people who

have either appeared in Winkler’s courtroom in a professional capacity or worked

alongside him in various community organizations, overwhelmingly praised

Winkler for his honesty, integrity, fairness, compassion, respect for those who

appear in his courtroom, and his community involvement. Winkler has also offered

an on-the-record apology to Rob McCulloch, acknowledged the wrongfulness of

his statements, and accepted responsibility for his misconduct. On these facts, we

agree with the board’s assessment that Winkler is highly unlikely to engage in

similar misconduct again. And having reviewed the cases cited by the board, we

find that the facts of this case are less egregious than Berry and O’Diam.

{¶ 35} Accordingly, we adopt the recommendation of the board and hereby

publicly reprimand Ralph Edward Winkler for the misconduct described above.

Costs are taxed to Winkler.

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Judgment accordingly.

__________________

Kelly Heile, Bar Counsel; and Steptoe and Johnson, P.L.L.C., and John C.

Ferrell, for relator.

Montgomery Jonson, L.L.P., Lisa M. Zaring, and George D. Jonson, for

respondent.

__________________

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