Disciplinary Counsel v. Warner

[This opinion has been published in Ohio Official Reports at 175 Ohio St.3d 367.]

DISCIPLINARY COUNSEL v. WARNER.

[Cite as Disciplinary Counsel v. Warner, 2024-Ohio-551.]

Judges—Misconduct—Violations of the Code of Judicial Conduct and the Rules of

Professional Conduct—Indefinite suspension with no credit for time served

under interim felony suspension.

(No. 2023-0180—Submitted May 16, 2023—Decided February 16, 2024.)

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

Court, No. 2022-021.

__________________

KENNEDY, C.J.

{¶ 1} Respondent, Jason Daniel Warner, of Marion, Ohio, Attorney

Registration No. 0066451, was admitted to the practice of law in Ohio in 1996. On

March 12, 2021, we suspended his license on an interim basis following his felony

convictions on one count each of complicity to leaving the scene of an accident and

complicity to tampering with evidence, and that suspension remains in effect. See

In re Warner, 163 Ohio St.3d 1271, 2021-Ohio-721, 169 N.E.3d 706.

{¶ 2} In a June 2, 2022 complaint, relator, disciplinary counsel, charged

Warner with professional misconduct arising from his felony convictions. After

conducting a hearing, a three-member panel of the Board of Professional Conduct

issued a report finding that Warner had committed the alleged rule violations, and

it recommended that he be indefinitely suspended from the practice of law with no

credit for time served under his interim felony suspension. The board adopted the

panel’s findings of fact, conclusions of law, and recommended sanction.

{¶ 3} For the reasons that follow, we adopt the board’s findings of

misconduct and recommended sanction. We indefinitely suspend Warner from the

practice of law with no credit for time served under his interim felony suspension.

SUPREME COURT OF OHIO

MISCONDUCT

{¶ 4} Just after midnight on June 4, 2020, Warner—then a judge of the

Marion County Court of Common Pleas—and his wife were returning home from

social gatherings where they had consumed alcohol. Warner’s wife was driving a

Jeep Wrangler, and she failed to yield to an oncoming vehicle. The Warners’ jeep

struck the other vehicle, a BMW X3, causing it to go off the road and hit a utility

pole. Witnesses saw a man and a woman walking around the crash site and look

into the BMW before driving away without calling 9-1-1 or waiting for first

responders to arrive. One of the witnesses called 9-1-1. The victim had to be

extracted from his vehicle with the jaws of life, and he suffered serious injuries.

After arriving home, the Warners left their jeep in their garage and waited

approximately nine hours before contacting law enforcement. Warner’s wife

admitted to driving the jeep during the crash, an admission that was confirmed by

the investigation.

{¶ 5} Warner was charged with two counts of complicity to commit

vehicular assault and one count each of complicity to leaving the scene of an

accident and complicity to tampering with evidence. Before trial, the two

vehicular-assault counts were dismissed. After a bench trial, Warner was convicted

of the two remaining complicity counts, and the trial court imposed an aggregate

two-year prison sentence. The Third District Court of Appeals affirmed, rejecting

Warner’s claims that his convictions were not supported by sufficient evidence and

were against the manifest weight of the evidence as well as his argument that the

trial court deprived him of a fair trial. State v. Warner, 3d Dist. Marion No. 9-21-

15, 2021-Ohio-4182, ¶ 1, 82. We declined Warner’s appeal. 166 Ohio St.3d 1448,

2022-Ohio-994, 184 N.E.3d 158.

{¶ 6} Disciplinary counsel filed a complaint charging Warner with

professional misconduct arising from his felony convictions. The complaint

alleged that Warner’s conduct violated Jud.Cond.R. 1.1 (requiring a judge to

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comply with the law), 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), Prof.Cond.R. 8.4(b) (prohibiting a lawyer from committing an illegal

act that reflects adversely on the lawyer’s honesty or trustworthiness), Prof.Cond.R.

8.4(c) (prohibiting a lawyer from engaging in conduct involving dishonesty, fraud,

deceit, or misrepresentation), Prof.Cond.R. 8.4(d) (prohibiting a lawyer from

engaging in conduct that is prejudicial to the administration of justice), and

Prof.Cond.R. 8.4(h) (prohibiting a lawyer from engaging in conduct that adversely

reflects on the lawyer’s fitness to practice law).

{¶ 7} The panel unanimously dismissed the alleged violation of

Prof.Cond.R. 8.4(c) but found by clear and convincing evidence that Warner

violated Jud.Cond.R. 1.1 and 1.2 and Prof.Cond.R. 8.4(b), 8.4(d), and 8.4(h). The

board adopted the panel’s findings of fact and conclusions of law and recommends

that we indefinitely suspend Warner from the practice of law with no credit for time

served under his interim felony suspension.

{¶ 8} Warner objects to the board’s report. As his first objection, he asserts

that the board could not recommend an appropriate sanction to this court, because

the panel failed to discuss in its report evidence that Warner says is undisputed and

demonstrates that he lacked the criminal intent to commit the two offenses of which

he was convicted. Warner points to his wife’s testimony indicating that after the

accident, she told him to get into the jeep and then drove off despite his protests.

He also relies on his own testimony that he did not assist his wife in leaving the

scene of the accident or share her criminal intent as well as his statements that he

did not realize that his wife would drive away once he got into the vehicle. In

addition, Warner notes the testimony of his criminal-defense attorney, who had

advised Warner not to testify in the criminal proceeding and who did not believe

that there was any evidence implicating Warner in criminal activity. Lastly, he

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points to positive character evidence he had submitted, which was noted but not

discussed at length in the panel’s report.

{¶ 9} Warner’s claim that the board was ignorant of the evidence in the

record is speculative. In any event, it is this court, not the board, that is the ultimate

arbiter of the facts of the case, the law that applies to the facts, and the discipline

that should be imposed. Cuyahoga Cty. Bar Assn. v. Veneziano, 120 Ohio St.3d

451, 2008-Ohio-6789, 900 N.E.2d 185, ¶ 6; Cincinnati Bar Assn. v. Heitzler, 32

Ohio St.2d 214, 220, 291 N.E.2d 477 (1972). The board “ ‘makes

recommendations as to the facts which should be found and the action which should

be taken by this court. However, this court has full responsibility for determining

what the facts are and what action should be taken on those facts.’ ” Heitzler at

220, quoting Mahoning Cty. Bar Assn. v. Ruffalo, 176 Ohio St. 263, 263-264, 199

N.E.2d 396 (1964).

{¶ 10} Even assuming that the panel’s report was deficient for failing to

expressly discuss evidence that Warner had submitted, our independent review of

the record cures any such error. We therefore overrule Warner’s first objection.

{¶ 11} As his second objection, Warner initially contends that the evidence

does not prove the rule violations charged in the complaint. He again points to his

testimony and the testimony of his wife and of his defense counsel to show that he

did not share his wife’s criminal intent when she left the scene of the accident and

tampered with evidence and that he did not engage in any affirmative act to aid or

abet her crimes. He maintains that as the passenger in the vehicle, he had no legal

duty to remain at the scene, to prevent his wife from leaving it, or to render aid to

anyone who was injured in the accident.

{¶ 12} However, “[a] certified copy of the entry of conviction of an offense

* * * shall be conclusive evidence of the commission of that offense * * * in any

disciplinary proceedings instituted against a judicial officer or an attorney based

upon the conviction.” Gov.Bar R. V(18)(B). “Consequently, we have held that ‘a

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disciplinary proceeding is not an appropriate forum in which to collaterally attack

a criminal conviction.’ ” Disciplinary Counsel v. Hunter, 175 Ohio St.3d 350,

2023-Ohio-4168, 243 N.E.3d 26, ¶ 24, quoting Greater Cleveland Bar Assn. v.

Chvosta, 62 Ohio St.2d 429, 430, 406 N.E.2d 524 (1980). Warner therefore cannot

challenge in this disciplinary proceeding the fact that he has been convicted of

complicity to leaving the scene of an accident and complicity to tampering with

evidence.

{¶ 13} Warner’s convictions for these two felonies establish that he failed

to comply with the law, in violation of Jud.Cond.R. 1.1. He stipulated that he

violated Jud.Cond.R. 1.2. His conviction for complicity to tampering with evidence

is based on “an illegal act that reflects adversely on the lawyer’s honesty or

trustworthiness,” Prof.Cond.R. 8.4(b), and is “conduct that is prejudicial to the

administration of justice,” Prof.Cond.R. 8.4(d). See Disciplinary Counsel v. Cohen,

142 Ohio St.3d 471, 2015-Ohio-2020, 32 N.E.3d 455, ¶ 3-4 (finding that an attorney

convicted of attempted tampering with evidence and attempted obstruction of

justice violated Prof.Cond.R. 8.4(b) and (d)). Further, in Cleveland Metro. Bar

Assn. v. Strauss, we found that an attorney who had left the scene of an accident

and resisted arrest violated Prof.Cond.R. 8.4(b). 165 Ohio St.3d 45, 2021-Ohio-

1263, 175 N.E.3d 516, ¶ 6, 8.

{¶ 14} As for the last rule violation alleged here, to find a violation of

Prof.Cond.R. 8.4(h) premised on conduct giving rise to a specific rule violation, the

conduct must be “so egregious as to warrant an additional finding that it adversely

reflects on the lawyer’s fitness to practice law,” Disciplinary Counsel v. Bricker,

137 Ohio St.3d 35, 2013-Ohio-3998, 997 N.E.2d 500, ¶ 21. In Strauss, a case in

which an attorney had been convicted of leaving the scene of an accident and

resisting arrest, among other crimes, we stated that “efforts to flee the scene of the

accident and avoid arrest are sufficiently egregious to warrant finding a violation

of Prof.Cond.R. 8.4(h).” Strauss at ¶ 8.

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{¶ 15} Here, Warner was complicit in leaving the scene of an accident and

tampering with evidence. Photographs show that the victim’s BMW was badly

damaged after colliding with the Warners’ jeep and a utility pole, and Warner

should have known that the victim could have been seriously injured. In fact, the

victim was seriously injured and had to be extracted from his vehicle with the jaws

of life. Warner did not know whether anyone else was coming to the victim’s

assistance, yet he did not call 9-1-1, and he acknowledged that he “could have left

[the victim] for dead.” Warner left the scene of the accident without doing anything

to aid the victim. We conclude that under these circumstances, Warner’s

misconduct while a sitting common-pleas-court judge is sufficiently egregious to

warrant a finding that it adversely reflects on his fitness to practice law under

Prof.Cond.R. 8.4(h).

{¶ 16} After an independent review of the record, we adopt the board’s

findings of misconduct.

SANCTION

{¶ 17} When imposing sanctions for attorney misconduct, we consider all

relevant factors, including the ethical duties that the lawyer violated, the

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

imposed in similar cases.

{¶ 18} The parties stipulated to the aggravating factor of vulnerability of

and harm resulting to the victim. See Gov.Bar R. V(13)(B)(8). The board found

that three other aggravating factors are also present in this case: Warner acted with

a selfish motive, committed multiple offenses, and failed to acknowledge the

wrongful nature of his conduct. See Gov.Bar R. V(13)(B)(2), (4), and (7). As for

mitigating factors, the parties stipulated, and the board agreed, that Warner had no

prior disciplinary record, had made a timely, good-faith effort to make restitution,

had engaged in full and free disclosure to the board and had a cooperative attitude

toward the proceedings, had provided evidence of his good character and

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reputation, and had been subjected to other penalties. See Gov.Bar R. V(13)(C)(1)

and (3) through (6). Warner does not contest these findings other than to state that

he is “unclear” whether his convictions for two separate offenses stemming from

“a single incident on a single date” are multiple offenses for purposes of Gov.Bar

R. V(13)(B)(4). They are multiple offenses under the plain meaning of the rule.

We adopt the aggravating and mitigating factors found by the board.

{¶ 19} The board recommends that we indefinitely suspend Warner from

the practice of law with no credit for time served under his interim felony

suspension. In support of that recommended sanction, the board distinguished

cases in which we permanently disbarred judges, explaining that “[c]ases that lead

to disbarment typically arise from repeated, purposeful, preplanned felonious

conduct” while Warner’s misconduct, “although reprehensible and abhorrent,

stemmed from a single, unpremeditated act.” The board cited Disciplinary Counsel

v. Terry, 147 Ohio St.3d 169, 2016-Ohio-563, 63 N.E.3d 88, Disciplinary Counsel

v. McAuliffe, 121 Ohio St.3d 315, 2009-Ohio-1151, 903 N.E.2d 1209, and

Disciplinary Counsel v. Gallagher, 82 Ohio St.3d 51, 693 N.E.2d 1078 (1998), in

support of this reasoning.

{¶ 20} In deciding whether to permanently disbar a judge in Terry, we

distinguished the judge’s misconduct in committing felony offenses while acting in

his official capacity from misconduct that did not involve misuse of a judge’s

judicial position. Terry at ¶ 17. And in Ohio State Bar Assn. v. McCafferty, we

noted that in three prior cases in which judges had been permanently disbarred, “the

judges had engaged in criminal conduct over a period of time, from a few days to

months, and the misconduct was preplanned.” 140 Ohio St.3d 229, 2014-Ohio-

3075, 17 N.E.3d 521, ¶ 23, citing Gallagher, McAuliffe, and Disciplinary Counsel

v. Hoskins, 119 Ohio St.3d 17, 2008-Ohio-3194, 891 N.E.2d 324. Here, Warner’s

misconduct did not occur in his capacity as a judge. Nor did he engage in

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preplanned criminal misconduct over an extended period of time. We therefore

agree that permanent disbarment is not warranted.

{¶ 21} As part of his second objection, Warner points to cases in which we

imposed term suspensions on attorneys who left the scene of an accident. See

Strauss, 165 Ohio St.3d 45, 2021-Ohio-1263, 175 N.E.3d 516; Disciplinary

Counsel v. Mitchell, 158 Ohio St.3d 356, 2019-Ohio-5218, 142 N.E.3d 669; Lorain

Cty. Bar Assn. v Lewis, 152 Ohio St.3d 614, 2018-Ohio-2024, 99 N.E.3d 404.

Relying on these cases, Warner urges us to impose a two-year suspension from the

practice of law. But as he acknowledges, those cases involved attorneys, not sitting

judges.

{¶ 22} We have long recognized that “judges are held to the highest

possible standard of ethical conduct.” McCafferty at ¶ 16, citing Mahoning Cty.

Bar Assn. v. Franko, 168 Ohio St. 17, 23, 151 N.E.2d 17 (1958). Therefore, we

have explained, “ ‘Judges are held to higher standards of integrity and ethical

conduct than attorneys or other persons not invested with the public trust.’ ”

Disciplinary Counsel v. O’Neill, 103 Ohio St.3d 204, 2004-Ohio-4704, 815 N.E.2d

286, ¶ 57, quoting Shaman, Lubet & Alfini, Judicial Conduct and Ethics 1-2 (3d

Ed.2000). Further, neither the parties nor the board have cited a case in which a

judge convicted of a felony received a sanction less severe than an indefinite

suspension. Indeed, we recently said that “our jurisprudence does not contain any

cases in which a judge was convicted of any felony and received a disciplinary

sanction less than an indefinite suspension or permanent disbarment.” (Emphasis

sic.) Hunter, 175 Ohio St.3d 350, 2023-Ohio-4168, 243 N.E.3d 26, at ¶ 36. We

see no reason for departing from our precedent in this case.

{¶ 23} We therefore overrule Warner’s second objection. We adopt the

board’s recommendation that Warner be indefinitely suspended with no credit for

time he has served under his interim felony suspension.

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CONCLUSION

{¶ 24} “ ‘Because they are so important to our society, judges must be

competent and ethical, and their actions must foster respect for their decisions as

well as for the judiciary as a whole. Given that they hold positions of considerable

authority and are entrusted with a great deal of power and discretion, judges are

expected to conduct themselves according to high standards of professional

conduct.’ ” O’Neill at ¶ 57, quoting Shaman, Lubet & Alfini at 1-2. Warner failed

to live up to those high standards.

{¶ 25} Accordingly, Jason Daniel Warner is indefinitely suspended from

the practice of law in Ohio with no credit for time he has served under his interim

felony suspension. Costs are taxed to Warner.

Judgment accordingly.

DEWINE, DONNELLY, STEWART, and DETERS, JJ., concur.

FISCHER, J., concurs, with an opinion.

BRUNNER, J., not participating.

_________________

FISCHER, J., concurring.

{¶ 26} I agree with the majority opinion that respondent Jason Daniel

Warner’s felony convictions establish that he committed professional misconduct,

and I agree that he should be indefinitely suspended from the practice of law with

no credit for time served under his interim felony suspension. Therefore, I join the

majority opinion. I write separately to note that after deviating from it once last

year, this court today returns to its consistent line of precedent under which a judge

who has been convicted of a felony offense is not awarded any credit for time

served under an interim felony suspension.

{¶ 27} “When a judge’s felonious conduct brings disrepute to the judicial

system, the institution is irreparably harmed.” Disciplinary Counsel v. Gallagher,

82 Ohio St.3d 51, 53, 693 N.E.2d 1078 (1998). In sanctioning a judge who has

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been convicted of a felony offense, we aim to protect the public and the integrity of

our judicial system. Id. Judges who commit such offenses deserve “the full

measure of our disciplinary authority.” Id.

{¶ 28} There has been only one case in this state in which a judge who was

indefinitely suspended following a felony conviction was given credit for the time

served under the interim felony suspension. Compare Disciplinary Counsel v.

Hunter, 175 Ohio St.3d 350, 2023-Ohio-4168, 243 N.E.3d 26, ¶ 41, with, e.g.,

Disciplinary Counsel v. Crane, 56 Ohio St.3d 38, 564 N.E.2d 96 (1990); Ohio State

Bar Assn. v. McCafferty, 140 Ohio St.3d 229, 2014-Ohio-3075, 17 N.E.3d 521,

¶ 26. This court made an exception in Hunter because the judge had served nearly

nine years under her interim felony suspension. See Hunter at ¶ 40. This court

never should have made such an exception because standing alone, the fact that an

interim felony suspension has lasted longer in one case than in another is no reason

for this court to shorten suspension time, especially in a matter involving a judge

who committed a serious offense.

{¶ 29} As the majority opinion notes, “ ‘ “judges are expected to conduct

themselves according to high standards of professional conduct.” ’ ” Majority

opinion, ¶ 24, quoting Disciplinary Counsel v. O’Neill, 103 Ohio St.3d 204, 2004-

Ohio-4704, 815 N.E.2d 286, ¶ 57, quoting Shaman, Lubet & Alfini, Judicial

Conduct and Ethics 1-2 (3d Ed.2000). We hold judges “ ‘ “to higher standards of

integrity and ethical conduct than attorneys or other persons not invested with the

public trust.” ’ ” Id. at ¶ 22, quoting O’Neill at ¶ 57, quoting Shaman et al. at 1-2.

If the public cannot rely on judges to do what is right, then the public may rightfully

question the entire system. See In re Hughes, 640 N.E.2d 1065, 1067 (Ind.1994).

{¶ 30} To be consistent with the disciplinary sanctions that we have

previously imposed on judges who had been convicted of felony offenses and to

ensure respect for and trust in our system, we cannot award a judge who has been

convicted of a felony offense with credit for time served under the interim felony

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suspension. Because this court today appropriately returns to its pre-Hunter

precedent and does not award Warner credit for time served under his interim

felony suspension, I respectfully concur.

_________________

Joseph M. Caligiuri, Disciplinary Counsel, for relator.

Kidd & Urling, L.L.C., Thomas W. Kidd Jr., and James P. Urling, for

respondent.

_________________

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