The opinion
[This opinion has been published in Ohio Official Reports at 80 Ohio St.3d 275.]
OFFICE OF DISCIPLINARY COUNSEL v. NICHOLSON.
[Cite as Disciplinary Counsel v. Nicholson, 1997-Ohio-317.]
Attorneys at law—Misconduct—Original term of suspension served—During
probationary period engaging in disruptive courtroom antics and making
derogatory reference about female prosecuting attorney—Reinstatement to
the practice of law.
(No. 93-391—Submitted April 16, 1997—Decided November 19, 1997.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 92-41.
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{¶ 1} On June 30, 1993, we suspended respondent, Thomas G. Nicholson
of Bucyrus, Ohio, Attorney Registration No. 0039741, from the practice of law in
Ohio for six months, with the six-month suspension stayed, and directed that his
conduct be monitored by the Crawford County Bar Association for a probationary
period of one year. Crawford Cty. Bar Assn. v. Nicholson (1993), 66 Ohio St.3d
585, 613 N.E.2d 1025.
{¶ 2} On March 27, 1996, relator, the Office of Disciplinary Counsel of the
Supreme Court of Ohio, filed a “Petition for the Revocation of Probation;
Reinstatement of Stayed Suspension; and, Citation for Contempt” (“petition”)
before the Board of Commissioners on Grievances and Discipline of the Supreme
Court (“board”).
Procedural Posture of the Case
{¶ 3} The relator’s petition alleged that on July 23, 1993, the previous
relator, Crawford County Bar Association, had appointed a monitor for
respondent’s one-year probationary period; that on July 13, 1994, respondent
moved for a release from probation; and that the relator, appointed on September
SUPREME COURT OF OHIO
22, 1994 as successor to the previous relator, recommended on May 11, 1995 that
respondent’s probation with monitoring be continued for one year. The relator
based its recommendation upon the fact that the terms of the original probation
ordered in 1993 had not been complied with because the monitor appointed by the
previous relator declined to accept the appointment, and that respondent knew
throughout the original probationary period that he was not being monitored.
Moreover, since there was no monitor during that period, there were no monthly
monitoring reports on which to base an opinion regarding respondent’s progress.
On June 22, 1995, we adopted relator’s recommendation that respondent’s
probationary period be extended.
{¶ 4} On November 21, 1996, based on a certified report of a panel of the
Board of Commissioners on Grievances and Discipline, we ordered that
respondent’s probation be revoked and that his six-month suspension be reinstated.
Factual Allegations of the Petition to Revoke Probation
{¶ 5} In its March 27, 1996 petition, the relator charged that while
defending Larry Taylor, Sr. in a criminal trial in the common pleas court in
September 1995, respondent was argumentative and contentious while cross-
examining the prosecution’s witnesses; that respondent frequently argued about the
court’s rulings, always attempting to have the “last word”; that respondent accused
the judge of continually making an obscene gesture with his finger during
respondent’s presentations and questioning; and that respondent was disrespectful
to the court and opposing counsel. Respondent reportedly said in court that he
would not let his client, Taylor, “go down the tubes because * * * [respondent was
not] a scared, whimpy [sic], little girl lawyer,” a comment immediately objected to
by the female prosecuting attorney. The judge questioned the jury and found that
none of them believed he was making an obscene gesture. The judge later removed
respondent as defense counsel.
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January Term, 1997
{¶ 6} The relator charged that in January 1996, after appearing at a
sentencing hearing defending William E. Ball, Jr. before the same judge and the
same opposing prosecuting attorney, respondent wrote to the judge that the
prosecuting attorney attempted to make him look “uninformed” in front of his client
by offering a last-minute reduction of sentence. Respondent further stated that the
prosecuting attorney talked to respondent’s client without his permission. The
judge held a hearing and found that there was no ground for respondent’s
accusations.
{¶ 7} The relator also charged that respondent continued to make rude,
sexist, and insulting remarks to the prosecutor.
Action by the Panel
{¶ 8} The respondent filed an answer to the relator’s petition, and a panel
of the board held a hearing on May 7, 1996. The panel found that the respondent
had not met his probationary responsibilities. The panel also found that respondent
remains unwilling “to discharge his professional duty of zealous representation
without resort to arrogant, discourteous, and disrespectful behavior directed at those
he apparently perceives, and certainly treats, as enemies in battle. * * * [S]uch
conduct on Respondent’s part [was] particularly reprehensible as directed against
Judge Kimerline, who has, over an extended period of time * * *, repeatedly offered
friendly guidance in an effort to help Respondent overcome his distorted view of
the adversarial processes of law * * *.” With respect to the allegations relating to
respondent’s conduct towards the prosecuting attorney, the panel found that
“[respondent’s] overall conduct toward [the prosecuting attorney], and many of his
remarks and comments to and about her, [were] * * * unprofessional, discourteous,
and highly inappropriate.”
{¶ 9} The panel found as a mitigating factor that the previous relator had at
first neglected and then abandoned its duties with respect to monitoring the
respondent and thereby substantially contributed to the frustration over the initial
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disciplinary order. “However, * * * Respondent’s conduct * * * occurred primarily
after the substitution of Disciplinary Counsel as Relator.”
{¶ 10} The panel concluded that respondent was guilty of significant and
continuing violations of the conditions of his probation. The panel recommended
that respondent’s probation be revoked and a six-month suspension be reinstated.
Further, it recommended that respondent’s practice and professional career be
monitored for an additional one-year period after the expiration of his suspension.
Finally the panel recommended that three of the conditions for reinstatement should
be (1) a public apology to the judge, (2) a public apology to the prosecuting
attorney, and (3) the undertaking of appropriate counseling and/or education as
approved by Disciplinary Counsel, to help respondent conduct himself in a
professional manner both in and out of the courtroom.
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Jonathan E. Coughlan, Disciplinary Counsel, Lori J. Brown and Cynthia L.
Roehl, Assistant Disciplinary Counsel, for relator.
Thomas G. Nicholson, pro se.
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Per Curiam.
{¶ 11} Paragraph EC 7-36 of our Ethical Considerations provides that
“[j]udicial hearings ought to be conducted through dignified and orderly procedures
designed to protect the rights of all parties. Although a lawyer has the duty to
represent his client zealously, he should not engage in any conduct that offends the
dignity and decorum of the proceedings.” EC 7-37 provides, “In adversary
proceedings, clients are litigants and though ill feeling may exist between clients,
such ill feeling should not influence a lawyer in his conduct, attitude, and demeanor
toward opposing lawyers. A lawyer should not make unfair or derogatory personal
reference to opposing counsel. Haranguing and offensive tactics by lawyers
interfere with the orderly administration of justice and have no proper place in our
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January Term, 1997
legal system.” In short, as we recently said in Toledo Bar Assn. v. Batt (1997), 78
Ohio St.3d 189, 192, 677 N.E.2d 349, 352, “We recognize that an attorney must
zealously represent his client, but we also recognize that an attorney has a duty to
be civil to opposing counsel and the court.”
{¶ 12} Whether particular conduct can be found to have been intended to
disrupt a tribunal depends upon the setting and all the surrounding circumstances.
United States v. Lumumba (C.A.2, 1986), 794 F.2d 806. The record in this case
demonstrates clearly that respondent has violated the conditions of his probation.
Respondent engaged in disruptive courtroom antics in the Taylor case. While he
claims that his comment about “a scared, whimpy [sic], little girl lawyer” was
directed toward himself, his statement in the context of the situation was a clear
derogatory reference to the female prosecuting attorney. In the Bell sentencing
matter, respondent had no basis whatever for his written accusations that the
prosecutor had talked to his client without permission.
{¶ 13} We adopt the findings of the panel and its conclusion that respondent
has violated his probation. Since respondent’s six-month suspension was reinstated
on November 21, 1996, respondent has now served the term of his original
suspension. Our primary concern is that in his future practice respondent maintain
a respectful and civil attitude toward the court and opposing counsel. We order
that respondent be reinstated to the practice of law. Costs taxed to respondent.
Judgment accordingly.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, COOK and LUNDBERG
STRATTON, JJ., concur.
PFEIFER,, J., not participating.
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