holding “that where an attorney represents himself and his client in a business deal, and the client loses money on the deal, a presumption arises that the attorney used client 13 SUPREME COURT OF OHIO confidences to his client’s disadvantage”
How later courts described this case
- holding “that where an attorney represents himself and his client in a business deal, and the client loses money on the deal, a presumption arises that the attorney used client 13 SUPREME COURT OF OHIO confidences to his client’s disadvantage”
Written by the judges who cited it.
The opinion
[This opinion has been published in Ohio Official Reports at 90 Ohio St.3d 1.]
FINDLAY/HANCOCK COUNTY BAR ASSOCIATION v. FILKINS.
[Cite as Findlay/Hancock Cty. Bar Assn. v. Filkins, 2000-Ohio-491.]
Attorneys at law—Misconduct—Charges against attorney dismissed when relator
fails to prove alleged disciplinary violations by clear and convincing
evidence.
(No. 99-2233—Submitted March 8, 2000—Decided September 6, 2000.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 98-16.
__________________
{¶ 1} Relator, Findlay/Hancock County Bar Association, filed a complaint
against respondent, John C. Filkins III of Findlay, Ohio, Attorney Registration No.
0046671. The complaint alleged that respondent violated DR 4-101(B)(2), 7-
102(A)(3), (4), (5), (6), (7), and (8), as well as 1-102(A)(1).
{¶ 2} This disciplinary action arose from respondent’s representation of
Traci Mackey. Traci Mackey (f.k.a. Traci Crow) and Russell Crow were married
on November 24, 1990. During their marriage, they had a son, Reid Crow. At the
time, Traci Mackey and Russell Crow also had custody of two other children,
Chontay (Russell Crow’s daughter from a prior marriage) and Aaron (Traci’s
Crow’s son from a prior relationship).
{¶ 3} Chontay’s biological mother and Russell Crow’s ex-wife, Rochelle
Baumlein, filed a motion seeking custody of Chontay. Respondent defended the
custody action. On October 10, 1991, the trial judge issued an entry ordering
psychological evaluations for the parties (Russell and Rochelle), their spouses
(Traci Mackey and Michael Baumlein), and Chontay. Dr. Frederick P. Ferri
conducted the examinations and authored a report recommending that Chontay
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remain with Russell and Traci Crow. Ultimately, Russell Crow was successful in
retaining custody of Chontay.
{¶ 4} In June 1993, respondent represented both Russell Crow and Traci
Mackey in attempting to get visitation rights to Russell Crow’s niece, Ashley. The
case was subsequently dismissed.
{¶ 5} Traci Mackey also retained respondent’s services to determine the
identity of her biological parents, as well as her family medical history. On
December 16, 1993, respondent filed a petition for release of this information with
the Court of Common Pleas of Highland County, Probate Division. Ultimately,
respondent was unsuccessful in acquiring the information for Traci Mackey
because her biological parents had not authorized a release of their identity.
{¶ 6} Having become unhappy with their marriage, Traci Mackey hired
Robroy Crow (no relation to Russell Crow) to initiate divorce proceedings against
her husband, Russell Crow. On November 6, 1995, Traci Mackey commenced a
divorce action in the Court of Common Pleas of Hancock County. Respondent
represented Russell Crow in the divorce action. The couple settled most issues
pertaining to the divorce except custody of their child, Reid. On September 12,
1996, subsequent to a hearing before a magistrate, the trial court issued an entry
that granted the divorce and gave custody of Reid Crow to Russell Crow. The court
ordered Traci Mackey to pay Russell Crow child support.
{¶ 7} Subsequent to the divorce, the Hancock County Child Support
Enforcement Agency filed a “show cause” motion relating to the child support
order against Traci Mackey for Reid Crow. Traci Mackey hired attorney Barbara
Larick to represent her in this matter. Respondent continued to represent Russell
Crow. Larick filed a motion to modify custody. Upon learning that respondent had
represented Traci Mackey prior to his representation of Russell Crow in the divorce
action against Mackey, Larick advised Traci Mackey that she might want to
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January Term, 2000
consider filing a disciplinary complaint or filing a malpractice action against
respondent.
{¶ 8} On October 17, 1997, Traci Mackey filed a grievance against
respondent. On April 6, 1998, the relator filed a complaint alleging that respondent
used confidences learned from Traci Mackey during his representation of her to her
disadvantage in violation of DR 4-101(B)(2).1 Eight months later, on December
10, 1998, relator filed an amended complaint, containing two new allegations. The
first new allegation arose from the Chontay custody case and alleged that
respondent had instructed Traci Mackey “not to disclose to the psychologist the
physical, mental, and sexual abuses that Mackey had suffered and was suffering
from Russell A. Crow,” and further “to lie to the psychologist about the relationship
between Russell A. Crow and her.” The second new allegation was that respondent
had “established signals with Mackey through which he would instruct her during
the course of her testimony before the Court as to how to answer the questions
posed to her by him and by opposing counsel.” These instances of misconduct were
alleged to be in violation of DR 7-102(A)(3), (4), (5), (6), (7), and (8). Mackey
also filed a legal malpractice suit against both respondent and Robroy Crow.
{¶ 9} A panel of the Board of Commissioners on Grievances and Discipline
of the Supreme Court heard the evidence. The panel found that the relator failed to
prove by clear and convincing evidence (1) that respondent had knowingly
concealed that which he was required to disclose or made a false statement in
violation of DR 7-102(A)(3) and (5); and (2) that respondent used signals to instruct
Traci Mackey how to answer questions in violation of DR 7-102(A)(4) and (8).
However, the panel determined that the relator did prove by clear and convincing
evidence that (1) respondent had instructed Traci Mackey not to disclose to the
psychologist in the Chontay custody case that she (Traci) had been abused by her
1. The complaint also alleged that respondent violated DR 1-102(A)(1). DR 1-102(A)(1) merely
precludes a lawyer from violating a Disciplinary Rule.
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husband Russell Crow, in violation of DR 7-102(A)(6) and (7); and that (2)
respondent knowingly used a confidence or secret of his client, Traci Mackey, to
her disadvantage in violation of DR 4-101(B)(2).
{¶ 10} The panel recommended that respondent be suspended from the
practice of law for one year with six months stayed. The board adopted the findings
of fact and conclusions of law of the panel, but recommended that respondent be
suspended for two years, with one year stayed, and that respondent be placed on
probation.
__________________
Roger Miller and Mark Miller, for relator.
John C. Filkins III; Kegler, Brown, Hill & Ritter and Geoffrey Stern, for
respondent.
__________________
LUNDBERG STRATTON, J.
{¶ 11} “In disciplinary proceedings, the relator bears the burden of proving
the facts necessary to establish a violation. The complaint must allege the specific
misconduct that violates the Disciplinary Rules and relator must prove such
misconduct by clear and convincing evidence.” (Emphasis added.) Ohio State Bar
Assn. v. Reid (1999), 85 Ohio St.3d 327, 708 N.E.2d 193, at paragraph two of the
syllabus. While the Board of Commissioners on Grievances and Discipline makes
recommendations to this court, it is this court that renders the final determination
of the facts and conclusions of law in disciplinary proceedings. Id. at paragraph
one of the syllabus.
{¶ 12} This is a difficult case to decide because it relies solely on the
credibility of the witnesses for proof. Upon independent review of all the evidence
in this case, we agree with the board that there is insufficient evidence to prove (1)
that respondent violated DR 7-102(A)(3) and (5) (he lied or concealed information),
and (2) that respondent violated DR 7-102(A)(4) and (8) (he used signals to
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January Term, 2000
influence his client’s testimony). However, contrary to the board’s findings, we
find that relator did not prove by clear and convincing evidence that (1) respondent
violated DR 7-102(A)(6) and (7) (he instructed his client to lie) or (2) that
respondent violated DR 4-101(B)(2) (he used client confidences to the
disadvantage of the client).
{¶ 13} We find that there is evidence in the record that undermines the
credibility of Traci Mackey’s testimony. In addition, we find that there is no
evidence to corroborate her testimony, while there are multiple credible witnesses
whose testimony supports respondent. We do not lightly disregard the findings of
the panel. They are conscientious and dedicated individuals who had an
opportunity to see and hear the witnesses and to judge their credibility. However,
we also recognize that we must make the final determination using the clear-and-
convincing-evidence standard.
DR 7-102(A)(6) and (7)
{¶ 14} The board found that respondent violated DR 7-102(A)(6) and (7)
when he instructed Traci Mackey not to disclose relevant and truthful information
in an effort to prevail in the Chontay custody motion. DR 7-102(A)(6) and (7) state
that an attorney shall not “[p]articipate in the creation or preservation of evidence
when he knows * * * that the evidence is false” and shall not “[c]ounsel * * * his
client in conduct that the lawyer knows to be * * * fraudulent.”
a. Summary of Relator’s Evidence
{¶ 15} In her testimony before the panel, Traci Mackey alleged that in 1992,
just prior to the psychological evaluation ordered in the Chontay custody case, she
disclosed to respondent that she, Chontay, and Aaron had been abused by her
husband, Russell Crow. The allegations included sexual abuse of Traci Mackey
and Chontay and physical abuse of Traci Mackey, Chontay, and Aaron, including
attacks against Traci Mackey with a knife and a chair. She alleged that Russell
Crow’s abuse was documented in written police reports.
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{¶ 16} Traci Mackey testified that she disclosed the abuse allegations to
respondent at his office and her home. She testified that she discussed the abuse
with respondent “many times.” “Usually they [the conversations] took place over
the phone and then I would go see him.” Traci Mackey admitted that she did not
have a driver’s license but claimed that friends drove her to respondent’s office on
those occasions when she went to discuss Russell Crow’s abusive nature.
{¶ 17} Despite the alleged disclosure of Russell Crow’s abuse to
respondent, Traci Mackey alleged that respondent instructed her to lie to the doctor
and tell him that Russell Crow was a “wonderful father, that he had a wonderful
relationship with the kids.”
{¶ 18} Finally, Traci Mackey testified that she also described Russell
Crow’s abusive nature to Robroy Crow, the attorney who represented her in her
divorce from Russell Crow.
b. Summary of Respondent’s Evidence
{¶ 19} In support of respondent, Russell Crow, Traci Mackey’s ex-husband,
testified that respondent never instructed him or Traci Mackey to lie to the doctor
conducting the psychiatric evaluation. In fact, Russell Crow testified that
respondent instructed him and Traci Mackey “to be honest with the doctor, tell him
the truth.” Russell Crow also testified that respondent never came to their (Russell
and Traci Crow’s) house for a meeting. He also testified that he was the only person
to drive Traci to respondent’s office because she had no friends in the area to give
her rides to respondent’s office.
{¶ 20} Respondent testified on his own behalf. Respondent stated that Traci
Mackey “never” indicated to him that Russell Crow was abusive. He also testified
that he never counseled Traci Mackey to lie in the psychological evaluation.
Respondent testified that he never met with Traci Mackey alone before the divorce
action. Finally, he testified that he had never met Traci Mackey at her residence.
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January Term, 2000
{¶ 21} Robroy Crow testified that contrary to Traci Mackey’s assertion, she
never disclosed to him that Russell Crow had abused her. He also testified that had
he been aware of any abuse, he would have attempted to introduce it in the divorce
case.
c. Analysis
{¶ 22} Traci Mackey’s testimony is the sole evidence in support of the DR
7-102(A)(6) and (7) violations. The board found that “[h]er testimony was too
detailed and specific not to be found to be credible.” However, we find that the
record reveals information that we believe erodes the credibility of her testimony.
This, in conjunction with the testimony of three witnesses that directly contradicts
Traci Mackey’s testimony, leads us to determine that the evidence is not clear and
convincing that respondent violated DR 7-102(A)(6) or (7).
{¶ 23} Traci Mackey admitted to the panel that she lied to the examining
psychologist in the Chontay custody case about Russell Crow’s alleged abuse, even
though she knew that a lie would keep Chontay with this allegedly abusive man.
Relator’s counsel asked Traci Mackey, “did you, in fact, lie in those psychological
evaluations?” She answered, “Yes.”
{¶ 24} Traci Mackey also admitted to the panel that she had lied under oath
in a court of law. Specifically, a member of the panel posed the following question:
“The signals, were those signals ever intended for you to lie on the witness stand?”
She answered, “I did lie.”
{¶ 25} Traci Mackey admitted that she lied on several other occasions. She
admitted that she lied to her husband about an affair that she was having with
Dwayne Mackey. It is apparent from the record that she lied to Deborah Mackey,
Dwayne Mackey’s wife, about her affair with Dwayne Mackey. In fact, Traci
Mackey persuaded Deborah Mackey to let her move in with Deborah and Dwayne,
claiming that Russell Crow had assaulted her, even though Traci Mackey had been
having an affair for several months with Deborah Mackey’s husband. She engaged
7
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in further deception by having Deborah Mackey baby-sit her children while she and
Deborah Mackey’s husband would go to a motel and engage in sex.
{¶ 26} Traci Mackey’s admission of the aforementioned lies erodes her
credibility with regard to her allegations against respondent. The lies she admitted
to in her divorce case were of a particularly deceptive nature. Yet even more
detrimental to her credibility were her admitted lies that occurred in court, where a
person is sworn to tell the truth, and in the court-related psychiatric examination.
{¶ 27} We also find that the record reveals that Traci Mackey has a
propensity for making unsubstantiated allegations. She alleged that Russell Crow
abused her, Chontay, and Reid, as well as her son Aaron. However, to date, nothing
in the record indicates that any of these claims have been substantiated. In fact, at
one point, Children’s Services directed her to stop bringing Chontay into the
hospital for exams based on these unsubstantiated allegations because doing so was
abusive in and of itself to Chontay.
{¶ 28} Finally, Traci Mackey accused Rochelle Baumline of being racist
and of threatening to run someone over with a car. Again these allegations are
unsubstantiated by the record. We find that Traci Mackey’s propensity for making
unsubstantiated allegations further erodes her credibility.
{¶ 29} Traci Mackey filed her grievance against respondent on October 17,
1997. The relator filed the initial complaint on April 6, 1998. It alleged that
respondent used confidences gained by him to Traci Mackey’s disadvantage in
violation of DR 4-101(B)(2). It was not until eight months after the initial
complaint, and fourteen months after the filing of the grievance, on December 10,
1998, that relator filed an amended complaint with the additional allegations that
respondent had instructed Traci Mackey to lie.2
2. The amended complaint also alleged that respondent used signals to instruct Mackey how to
testify, a violation of DR 7-102(A)(4), (6), and (7). However, because we have affirmed the board’s
finding that there was insufficient evidence to prove this charge and because we are addressing the
8
January Term, 2000
{¶ 30} The allegation that respondent instructed Mackey to lie arose from
respondent’s representation of Traci Mackey in the early 1990s. We find it suspect
that Traci Mackey apparently failed to disclose or remember this allegation until
eight months after the initial complaint was filed and some fourteen months after
the grievance was filed.
{¶ 31} An allegation of counseling a client to lie is not an insignificant
charge that the accuser would disregard or forget. Yet the claim was not asserted
until fourteen months after the initial grievance was filed.
{¶ 32} A divorce strains emotions, especially where a parent loses custody
of a child. Traci Mackey had just been through a divorce and lost custody of her
son, Reid, to her ex-husband, Russell Crow. Such emotions could have motivated
Traci Mackey to seek retribution. Thus, Traci Mackey had a motive to fabricate
the allegations against respondent. This could explain why Traci Mackey did not
file the allegation that respondent lied until some fourteen months after she filed
her initial grievance. It would also explain the malpractice action she filed against
respondent because much as a criminal verdict may support a civil action for
damages, a successful disciplinary action may support a malpractice action for
damages.
{¶ 33} We find that the fourteen-month delay in asserting these additional
allegations, with no justification for the delay, further erodes Traci Mackey’s
credibility with regard to the allegations that respondent instructed her to lie.
{¶ 34} Finally, Traci Mackey’s testimony made reference to two separate
instances that we believe provided the relator with a prime opportunity to bolster
her testimony with probative, corroborative evidence. The first instance pertained
to her testimony that she first divulged and subsequently discussed Russell Crow’s
abusive nature to respondent at his office. Traci Mackey admitted that she had to
allegations that respondent counseled Mackey to lie, we find no reason to further discuss this
allegation here.
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rely on friends to give her a ride to respondent’s office because her driver’s license
was expired. However, Russell Crow testified that he was her only ride to
respondent’s office. And respondent testified that he never met with Traci Mackey
alone. Relator had a prime opportunity to impeach the testimony of respondent’s
witnesses’ testimony by presenting a witness who would testify that he or she
chauffeured Traci Mackey to respondent’s office as she claimed. However, relator
provided no such witness(es).
{¶ 35} Traci Mackey also testified that written police reports were made
pertaining to Russell Crow’s abusive episodes. Yet the relator failed to submit a
single copy of a police report in this regard or provide any explanation as to why
such documentation was unavailable. Copies of police reports would have verified
Russell Crow’s abusive nature and in turn supported Traci Mackey’s testimony that
she divulged this critical information to respondent and Robroy Crow.
{¶ 36} Contrary to relator’s case, we find the witnesses testifying in support
of respondent to be credible. These witnesses included respondent, Russell Crow,
and Robroy Crow.
{¶ 37} Respondent presented his own case to this court and emphatically
denied that he had counseled Traci Mackey to lie. In addition to these assertions,
respondent presented several witnesses that testified favorably to respondent’s
credibility and reputation. Attorney R. Edward Marks of Advocates for Basic Legal
Equality, Inc. (“ABLE”) testified as to respondent’s reputation. Marks, who
operated ABLE’s legal aid program, made numerous referrals to respondent and
had received positive evaluations. Marks testified that he found respondent to have
a “high reputation for personal integrity and professional competence.”
{¶ 38} Doug Bonnoront, a personal friend and client of respondent, testified
that respondent was trustworthy and “very ethical.”
{¶ 39} Bruce Brimley, acting municipal court judge and respondent’s
current employer, testified: “I guess in sum, if I didn’t believe in John’s integrity
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January Term, 2000
and John’s honesty, I would not be here testifying on his behalf and he would not
be working for me and I think the fact that he works for me testifies as to my opinion
as to his integrity, his candor and his honesty.”
{¶ 40} Finally, respondent submitted several letters from peers, from a
common pleas judge, and a former employer that praise respondent’s honesty,
integrity, and high moral ethics.
{¶ 41} In an apparent attempt to discredit respondent, the relator presented
the testimony of attorney Patti Baumgartner-Novak. She testified that respondent
can be difficult at times and will fight in cases where others would settle. She stated
that not many attorneys litigate cases to trial in Hancock County but admitted that
respondent had a duty to go to trial if his client did not want to settle. She also
testified about an incident where she suspected that respondent had advised two of
his clients not to return a child to Ohio even though he was under a court order to
do so. However, she admitted that respondent, on record, denied giving that advice.
No proof or evidence was ever presented that respondent had not been truthful and
Baumgartner-Novak conceded that she had never heard anyone say that respondent
was dishonest.
{¶ 42} Barbara Larick also testified to another incident where she felt that
respondent acted in a case with a possible conflict of interest. But she admitted that
respondent withdrew after she challenged him on the issue.
{¶ 43} While Baumgartner-Novak and other witnesses challenged
respondent’s style of practice, neither she nor any of relator’s witnesses presented
any evidence to attack respondent’s credibility, the issue at stake here.
{¶ 44} Having observed his demeanor in presenting his case before this
court, we find respondent’s testimony credible. Respondent’s credibility is
bolstered by the testimony and letters of his employers, friends, and colleagues and
by relator’s failure to successfully attack respondent’s credibility.
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{¶ 45} Russell Crow testified that respondent told him and Traci to tell the
truth to the doctor conducting the psychological examination in the Chontay case.
His testimony corroborates respondent’s testimony in this regard.
{¶ 46} However, perhaps the most persuasive testimony was that of
attorney Robroy Crow. In our view, he provided key testimony, because it
corroborates respondent’s testimony that Traci Mackey never disclosed Russell
Crow’s abuse. Yet the panel never addressed why they disregarded Robroy Crow’s
testimony.
{¶ 47} Traci Mackey alleged that during her divorce case, she disclosed
Russell Crow’s abuse to Robroy Crow, but that Robroy Crow told her that “it was
irrelevant * * * because of the circumstances surrounding the divorce, that I would
lose anyway.” However, Robroy Crow testified that Traci Mackey never told him
that Russell Crow was abusive. He indicated that had he known of the abuse, he
would have used the evidence in the divorce proceedings.
{¶ 48} Robroy Crow is an attorney experienced in domestic law. Thus, he
knew the value of this information in winning Traci Mackey custody of her son and
his obligation as an attorney to use it. There is no credible evidence in the record
as to why Robroy Crow would advise Traci Mackey that Russell Crow’s abusive
nature was irrelevant to determination of the custody of their son, which would
have been a blatant violation of his obligation to her. In fact, upon direct
examination of Traci Mackey in the divorce proceeding, Robroy Crow made a
detailed inquiry as to Russell Crow’s fitness as a father, giving Traci Mackey a
golden opportunity to expose the abuse. Yet, the only faults as a father that she
testified to were that he slept too much and occasionally failed to put shoes or socks
on their child.3 Because Traci Mackey failed to testify as to Russell Crow’s abuse,
3. Deborah Mackey relates one incident that occurred after Traci Mackey started her affair with
Dwayne Mackey in which Traci alleged that her husband, Russell Crow, “beat her up.” However,
Russell Crow conveys a much different account of that event. Moreover, if all the alleged abuse did
indeed occur it makes no sense that Deborah Mackey would relate this single incident to the
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January Term, 2000
especially when the custody of her son was at stake, we are inclined to believe that
she either did not tell Robroy Crow of Russell Crow’s abuse or that in fact Russell
Crow was not abusive. Under either scenario, Robroy Crow was unaware of any
abuse inflicted by Russell Crow. Such a conclusion only corroborates respondent’s
position that Traci Mackey never disclosed Russell Crow’s alleged abusive nature
to him either.
{¶ 49} Accordingly, we find that Robroy Crow’s testimony that Traci
Mackey never informed him of Russell Crow’s alleged abuse was credible. This
conclusion tends to discount the allegation that Russell Crow was abusive and
strikes another blow against Traci Mackey’s credibility.
{¶ 50} Finally, and perhaps more persuasive than our individual analysis of
each witness’s credibility, is the collective effect of the testimony presented by
respondent compared to the relator’s case, which relied almost solely on the
testimony of Traci Mackey. Respondent and Robroy Crow testified that Traci
Mackey never informed them of the alleged abuse. Neither recalled having seen
any abuse marks on Traci Mackey’s body, which she alleged were visible when she
spoke to both of them. Both respondent and Robroy Crow would have known the
importance of the abuse and their obligation to disclose it in their respective cases,
but each failed to do so despite the fact that they could have disclosed it easily.
{¶ 51} In weighing the evidence, we note that respondent presented three
witnesses who testified that respondent did not violate DR 7-102(A)(6) or (7). The
credibility of these witnesses was never effectively impeached. Their testimony
was consistent and appealed to logic and common sense. Conversely, relator relied
primarily upon a single witness to prove that respondent violated DR 7-102(A)(6)
and (7). There are many questions pertaining to the credibility, logic, and common
sense of her testimony, as well as a failure to corroborate several key portions of
exclusion of arguably more grave alleged previous incidents of sexual and physical abuse against
Traci Mackey and her children, including the alleged attack with a knife.
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her testimony. Thus, we are compelled to find that relator failed to present clear
and convincing evidence that respondent violated DR 7-102(A)(6) or (7).
DR 4-101(B)(2)
{¶ 52} The board also found that “Respondent violated DR 4-101(B)(2)
when he used confidential information that he knew regarding Traci Mackey,
especially her relationship with her children, and other relationships, in seeking to
obtain custody of the child born of her marriage with Russell Crow.” DR 4-
101(B)(2) prohibits an attorney from “[using] a confidence or secret of his client to
the disadvantage of the client.”
a. Summary of Relator’s Evidence
{¶ 53} In her testimony before the panel, referring to the period of time prior
to the divorce, Traci Mackey stated that “Mr. Filkins [respondent] and Rusty
[Russell Crow] and I, we, all of the, well, a lot of meetings we had, it wasn’t just
attorney-client go ins, do your business and leave. I mean, we talked about friends,
we talked about his wife, she was going to have a baby at that time.” Traci Mackey
confirmed that many of the conversations with respondent were social in nature,
pertaining to their children, soccer, and the birth of respondent’s child.
{¶ 54} In answering a question about what confidences imparted to
respondent were used by him in representing Russell Crow in the divorce, Traci
Mackey stated, “Well, everything, I think, was used against me in the divorce. Mr.
Filkins knew about, like I said, everything about me. He knew everything about
my children. He knew, you know, if I would lose one of my children I would be
devastated. He knew everything and I believe he used everything he had against
me, every ounce of me.” When asked by a member of the panel to be more specific,
she stated, “I’m going to have to say it would be, again, that my children are very
important to me because during recess of that case there was a threat made from
John Filkins to Robroy Crow stating that if I didn’t stop with trying to get custody
14
January Term, 2000
away from Rusty that I would pay and that I would lose my son and that was my
threat, so that he knew how to threaten me by using my children.”
b. Summary of Respondent’s Evidence
{¶ 55} When asked what confidences he used against Traci Mackey,
respondent testified, “[A]s I sit here today, I can’t tell you of any.” Robroy Crow
also indicated that he did not believe that respondent used any confidences.
c. Analysis
{¶ 56} The vague allegation that “he used everything he had against me” is
unsupported by any specifics in the record. Although there is no definition of
“confidence” as the term is used in DR 4-101(B)(2), the following two cases
provide some guidance as to its meaning. In Stark Cty. Bar Assn. v. Osborne
(1982), 1 Ohio St.3d 140, 1 OBR 175, 438 N.E.2d 114, the court held that the
respondent used a confidence to his own advantage in violation of DR 4-101(B)(3).
In Osborne, the respondent and his client transacted several business deals between
them. The respondent in effect represented himself as well as his client in these
deals, and the client lost money. Although the court never identified a specific
confidence that respondent used to his advantage, the violation was evident. It is
virtually axiomatic that where an attorney represents himself and his client in a
business deal, and the client loses money on the deal, a presumption arises that the
attorney used client confidences to his client’s disadvantage.
{¶ 57} In Greater Cleveland Bar Assn. v. Watkins (1981), 68 Ohio St.2d 11,
22 O.O.3d 125, 427 N.E.2d 516, the respondent attorney used his client’s
confidence to his own advantage in violation of DR 4-101(B)(3). In Watkins, a fee
disagreement prompted respondent’s client to file a grievance with the bar
association. During the investigation of the grievance, respondent called the
client’s employer, told him that he knew of the employer’s “under the table”
payments to the client, and threatened to go to the authorities unless the grievance
was dropped. The information that the client had been paid under the table had
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been imparted to the respondent in his role as attorney and was used against the
client. Thus, respondent was found to have violated DR 4-101(B)(3).
{¶ 58} Unlike Osborne and Watkins, the “confidences” Traci Mackey
identifies in her testimony are merely generic statements of her love for her
children, which could apply to virtually any parent. Further, the fact that a client
cherishes his or her child is hardly the sort of information that can be used in a
custody case to the disadvantage of the client. Therefore, we decline to define the
broad statements identified by Mackey as “confidences” for purposes of DR 4-
101(B)(2).
{¶ 59} During her divorce with Russell Crow, Traci Mackey petitioned the
court to issue a shared-parenting plan for Reid. A review of the transcript of the
divorce proceeding reveals that respondent never used any of the “confidences”
identified by Mackey in the divorce proceeding.
{¶ 60} In sum, we can find no specific fact or information that would have
come from respondent’s prior representation of Traci Mackey that was used as the
basis for Reid Crow’s custody determination. No references were made to the
custody battle for Chontay. No information, history, doctor or psychology reports
from the prior three matters were ever mentioned; all of the questioning by
respondent dealt with Traci Mackey’s then-current lifestyle and plans for work and
child care.
{¶ 61} In addition, attorney Robroy Crow, who represented Traci Mackey,
presented an affidavit, which stated:
“4. That Affiant did not regard any prior and terminated representation by
[respondent] as an issue to be raised in the case Traci Lynn Crow vs Russell Alan
Crow.
“5. That Affiant never saw, believed, or concluded that [respondent] had
any confidential information about Traci Lynn Crow which could be considered
detrimental to Traci Lynn Crow in the case, Traci Lynn Crow vs Russell Alan Crow.
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January Term, 2000
“6. To the best of Affiant’s knowledge and belief, [respondent] did not use
any confidential information about Traci Lynn Crow to the disadvantage or
prejudice of Traci Lynn Crow in the case, Traci Lynn Crow vs Russell Alan Crow.”
{¶ 62} Robroy Crow, Traci Mackey’s attorney in her divorce proceeding,
was in the best position to evaluate the evidence and determine whether his
opponent had used confidential information. Respondent testified that he disclosed
his prior representation of Traci Mackey to Robroy Crow and that Traci Mackey
had no issue with respondent representing Russell Crow. Relator never refuted this.
However, the panel seemed to totally ignore this evidence.
{¶ 63} Instead, the panel apparently relied in part on the testimony of
attorney Barbara Larick as corroborating Traci Mackey’s testimony. However, an
examination of Barbara Larick’s testimony is not persuasive on the issue.
{¶ 64} On direct examination, Larick stated:
“I said something to John about, how can you do this? Don’t you have an
obligation to zealously represent your client and use everything that you could
possibly use and he said, I did use everything. He said, why do you think we won
in the prior divorce case, he got custody, meaning that Mr. Crow had gotten custody
of the couple’s son, Reed [sic] Allen Crow, in the divorce matter.”
{¶ 65} However, on cross-examination, Barbara Larick backtracked:
“A. He didn’t say I had used, that he had used everything. He just said, I
did use—I said, how can you use the information and he said, I did use it, why do
you think we won, he got custody, didn’t he?
“***
“Q. I think you’ve already said this, I want to make sure I heard. Mr. Filkins
did not detail this information to you [i.e., the information he knew as a result of
representing Traci]?
“A. No. Mr. Filkins did not detail the information.”
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{¶ 66} Larick interprets respondent’s remark to mean that he used
confidential information. Yet it is clear from her testimony that Larick does not
have any personal knowledge that respondent used any confidences against Traci
Mackey. The respondent could just as easily have been referring to the evidence in
the divorce case.
{¶ 67} In fact, in awarding custody of Reid to Russell Crow, the magistrate
in his decision stated:
“The parties have, at times, demonstrated the ability to work together on
parenting issues. This is evidenced by the parties trying different parenting
arrangements on their own. Ultimately, however, this proved to be unsuccessful
and resulted in conflict. The Plaintiff [Traci Mackey] will be moving in the next
couple of weeks. Although she will be less than an hour and one-half from
Defendant [Russell Crow], this will also make shared parenting difficult.
“The child has lived most of his young life in Findlay, most recently in the
marital home where the Defendant continues to reside. He attends day care in
Findlay. His extended family is in the Findlay area. The Plaintiff is moving to Port
Clinton, Ohio, to get a new start. This move would require the child to move to a
new city, away from his day care, away from his father, and away from extended
family.
“The Plaintiff stated she is moving to get a fresh start. She plans at some
time to be residing with her boyfriend. The Plaintiff did not explain how this could
be construed to be in Reid’s best interests. She, herself, stated that Reid will be
harmed by such a move. She also admitted putting her own interests ahead of those
of her children. It also appears that the Plaintiff will have limited time available to
parent Reid. She plans on working at a day care, starting in the early morning, and
she also has a restaurant job in the evening. The Plaintiff stated she was not sure
how she was going to combine this employment. The Plaintiff will be doing all
this while pursuing a new relationship with another man. Although the Plaintiff
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January Term, 2000
will be at the day care center when Reid is there as a cook [sic], she will have
limited contact with him during the day.
“The Plaintiff’s shared parenting plan is found not to be in Reid’s best
interests. The Defendant should be designated as the residential parent for Reid.”
{¶ 68} None of the reasons delineated in the magistrate’s decision in
awarding custody of Reid to Russell Crow corresponds with the “confidences” that
Traci Mackey identified in her testimony. Further, the reasons cited by the
magistrate (Traci Mackey’s move, her affair, her employment plans) were not
known to respondent before he represented Russell Crow in his divorce from Traci
Mackey.
{¶ 69} In addition, respondent testified that he revealed his prior
representation of Traci Mackey to Robroy Crow and received clearance for him to
represent Russell Crow in the divorce proceeding. Robroy Crow testified that
respondent did not disclose any of Traci Mackey’s “confidences” in the divorce
proceedings.
{¶ 70} Barbara Larick’s conclusory statement, standing alone, does not rise
to the level of clear and convincing evidence that respondent violated any client
confidences when compared to the testimony of Robroy Crow, who was in the best
position to know the facts. While the better practice would have been to decline to
further represent Russell Crow in the subsequent divorce, these facts simply do not
rise to the level of a Disciplinary Rule violation. And in fact, once Barbara Larick
did raise the issue when Traci Mackey moved for a change of custody, respondent
promptly withdrew. As he explained in his testimony:
“There was also a Motion filed by Traci’s counsel at that point, Barbara
Larick, to have me withdrawn as counsel on Russ’s behalf.
“I would have spoken with Russ and would have indicated to him, in
essence, I don’t want this to be a distraction from your issue. I don’t want my
representation to detract from your seeking to continue as residential parent and the
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SUPREME COURT OF OHIO
best way to do that at this point is for you to obtain other counsel. I don’t want this
to become an issue about me versus an issue about you being residential parent.”
{¶ 71} For all the aforementioned reasons, we find that relator has failed to
prove that respondent violated DR 4-101(B)(2) by clear and convincing evidence.
{¶ 72} Accordingly, because we find that relator has failed to prove the
alleged disciplinary violations by clear and convincing evidence, we decline to
accept the recommendation of the board and dismiss the charges against
respondent.
Cause dismissed.
MOYER, C.J., RESNICK, F.E. SWEENEY, PFEIFER and COOK, JJ., concur.
DOUGLAS, J., concurs in judgment.
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