The opinion
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Office of Disciplinary Counsel v. Maniscalco.
[Cite as Disciplinary Counsel v. Maniscalco (1994), Ohio
St.3d .]
Attorneys at law -- Misconduct -- Public reprimand -- Knowingly
advancing claim unwarranted under existing law -- Conduct
adversely reflecting on fitness to practice law.
(No. 93-1717 -- Submitted December 7, 1993 -- Decided
March 23, 1994.)
On Certified Report by the Board of Commissioners on
Grievances and Discipline of the Supreme Court, No. 92-57.
The respondent in this matter is Patrick M. Maniscalco,
last known address in Fort Worth, Texas, Attorney Registration
No. 0021752. Relator, Office of Disciplinary Counsel, filed a
three-count complaint against Maniscalco with this court's
Board of Commissioners on Grievances and Discipline ("board").
The parties waived hearing and submitted Counts One and Two to
the hearing panel on stipulations; Count Three was dropped.
The stipulations, their attached exhibits, and Maniscalco's
deposition established the following facts:
Count One
In 1988, Richard P. Vodicka retained Maniscalco to sue the
city of North Royalton, its mayor, and its city prosecutor for
false imprisonment and for violating Vodicka's constitutional
rights during a 1986 proceeding in North Royalton Mayor's
Court. Maniscalco knew that Vodicka had already litigated a
case arising from the mayor's court incident. (Vodicka had
sued the city and its mayor in federal court based on the
mayor's court incident; the court dismissed that action because
the mayor was immune from liability while acting in a judicial
capacity.) Nevertheless, Maniscalco filed Vodicka's complaint
in the Cuyahoga County Court of Common Pleas. The case was
then removed from the common pleas court to the United States
District Court for the Northern District of Ohio.
On January 26, 1989, the federal court granted summary
judgment for the defendants. The court ruled that Vodicka's
federal claims had been litigated in the prior action and were
now barred by res judicata.
The court also ordered Maniscalco to pay $4,898.90 in
attorney fees. Fed. R. Civ. P. 11 requires federal courts to
impose sanctions on attorneys who sign pleadings that are not
"warranted by existing law or a good faith argument for the
extension, modification, or reversal of existing law." The
federal court specifically found that Maniscalco "was
unreasonable in filing this action." Not only were the federal
claims barred by res judicata, but "[s]imple research would
have shown" their lack of merit: the mayor and prosecutor were
clearly immune to suit under existing law, and Maniscalco had
not "made a good faith argument for modification of this
immunity rule." Moreover, Maniscalco had alleged a violation
of Title 42, Section 1983, United States Code based on the
defendants' negligence, but "negligence cannot be the basis for
a [Section] 1983 action." Finally, the applicable statutes of
limitations had expired before Maniscalco filed the action.
The federal court concluded "that if counsel had adequately
researched the law this action would not have been filed, at
least not in its present manner."
Count Two
In November 1988, Thomas Pelznik retained Maniscalco to
sue the city of Fairview Park and its city prosecutor for false
imprisonment and violating Pelznik's constitutional rights.
Pelznik paid Maniscalco $2,500 in advance to handle the entire
action. Maniscalco thereupon filed suit on Pelznik's behalf in
the Cuyahoga County Court of Common Pleas; the action was later
removed to the federal district court.
On February 17, 1989, the city and the prosecutor moved to
dismiss the action and requested attorney fees as a Rule 11
sanction against Maniscalco for filing a frivolous lawsuit. On
March 8, 1989, Maniscalco filed a voluntary notice of dismissal
and did not subsequently refile the action.
Pelznik contacted another attorney to represent him
against Maniscalco. After speaking with Pelznik's attorney,
Maniscalco agreed to refund the fee to avoid a lawsuit. On
September 27, 1990, Maniscalco sent Pelznik's attorney two
post-dated $250 checks as a first installment. However, one of
the checks bounced. Maniscalco did not pay the balance, and
Pelznik sued him for it, eventually winning a judgment against
Maniscalco for $2,260 plus interest.
The parties have stipulated that Maniscalco's conduct as
to each count violated DR 7-102(A)(2) (knowingly advancing
claim unwarranted under existing law) and 1-102(A)(6) (conduct
adversely reflecting on fitness to practice law). The parties
further stipulated that Maniscalco "provided full and free
disclosure" and cooperated with the investigation, and that he
has not been disciplined before. Finally, the parties have
stipulated that a public reprimand is the appropriate sanction
for Maniscalco's misconduct. Accordingly, the panel found
violations of the aformentioned Disciplinary Rules and
recommended a public reprimand, and the board concurred.
Geoffrey Stern, Disciplinary Counsel, and Alvin E.
Mathews, Assistant Disciplinary Counsel, for relator.
Patrick M. Maniscalco, pro se.
Per Curiam. We concur in the board's findings and
recommendation. Patrick M. Maniscalco is publicly
reprimanded. Costs taxed to respondent.
Judgment accordingly.
Moyer, C.J., A.W. Sweeney, Douglas, Wright, Resnick, F.E.
Sweeney and Pfeifer, JJ., concur.