The opinion
[Cite as Disciplinary Counsel v. Stafford, 131 Ohio St.3d 385, 2012-Ohio-909.]
DISCIPLINARY COUNSEL v. STAFFORD.
[Cite as Disciplinary Counsel v. Stafford, 131 Ohio St.3d 385, 2012-Ohio-909.]
Attorneys—Misconduct—Multiple violations of the Rules of Professional Conduct
over several years—Twelve-month license suspension.
(No. 2011-0408—Submitted October 4, 2011—Decided March 8, 2012.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 09-028.
__________________
MCGEE BROWN, J.
{¶ 1} Respondent, Joseph G. Stafford of Cleveland, Ohio, Attorney
Registration No. 0023863, was admitted to the practice of law in Ohio in 1985.
Stafford is the sole shareholder and managing partner of the law firm Stafford &
Stafford Co., L.P.A. Relator, disciplinary counsel, filed an amended three-count
complaint in January 2010, charging Stafford with multiple violations of the
Rules of Professional Conduct.
{¶ 2} After a lengthy period of motions and discovery, a panel of the
Board of Commissioners on Grievances and Discipline conducted a hearing to
consider disciplinary counsel’s allegations of misconduct. The hearings took
place over the course of a week, during which the panel heard the testimony of
Stafford and 14 additional witnesses and considered the hundreds of exhibits
submitted by the parties.
{¶ 3} At the conclusion of evidence, the panel sua sponte dismissed
Count Two of the complaint, due to a lack of clear and convincing evidence. On
the remaining counts, the panel determined that there was clear and convincing
evidence that Stafford had committed six violations of the Rules of Professional
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Conduct. The panel recommended that 14 additional alleged violations be
dismissed for lack of sufficient evidence or due to redundancy.
{¶ 4} The panel recommended that Stafford be suspended from the
practice of law for 12 months, with the entire suspension stayed on certain
conditions. The board adopted the panel’s report and added supplementary
justifications for recommending the stay.
{¶ 5} Disciplinary counsel objects to the board’s decision recommending
dismissal of an alleged violation of Prof.Cond.R. 8.4(d) (prohibiting conduct that
is prejudicial to the administration of justice) in Count One and to the board’s
decision to stay Stafford’s suspension. Stafford objects to the entirety of the
board’s findings of misconduct and argues that we should grant a full dismissal of
the complaint.
{¶ 6} Having carefully considered the arguments of the parties and the
evidence presented in this case, we overrule Stafford’s objections, we overrule
disciplinary counsel’s objections in part, and we sustain disciplinary counsel’s
objections in part. We adopt the board’s findings of fact and conclusions of law,
and we adopt the board’s recommendation that Stafford be suspended from the
practice of law in Ohio for 12 months. We reject the board’s recommendation to
stay the suspension, however, and we impose an actual suspension of 12 months.
Misconduct and Objections
Count One—The Tallisman Matter
{¶ 7} In divorce proceedings that spanned January 2005 to early 2008,
Stafford represented Susan Tallisman. Stafford filed her complaint for divorce,
naming the husband, Alan Tallisman, and a variety of asset-holders as defendants.
The complaint sought spousal support and a division of property, but made no
mention of the prenuptial agreement that the parties had signed prior to their
marriage in 1993. In the husband’s February 2005 answer and counterclaim for
divorce, he asserted that a prenuptial agreement limited the wife’s rights to
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support and property. Stafford failed to answer the counterclaim or file any
further pleadings. The husband then filed a motion for summary judgment,
arguing that the prenuptial agreement controlled the division of the parties’
property. Stafford filed a memorandum in opposition to summary judgment,
asserting that the prenuptial agreement should not be enforced. Stafford’s
memorandum took no issue with the certification and service of the husband’s
answer and counterclaim.
{¶ 8} The Tallisman case languished in domestic-relations court for two
years, during which the case was riddled with continuances and discovery battles.
On April 12, 2007, the husband, through counsel, filed a motion for judgment on
the pleadings, asking for a finding that the wife’s failure to answer his
counterclaim constituted an admission to the averments in the counterclaim. On
April 16, 2007, in correspondence pointing to the wife’s failure to timely answer
the husband’s counterclaim, the husband’s counsel proposed settling the parties’
property issues. He also asserted that Stafford had committed malpractice by
failing to answer the counterclaim and that Stafford’s interests may be in conflict
with his client’s.
{¶ 9} The next day, Stafford filed, on the wife’s behalf, a motion for
leave to file an amended complaint. In support of his motion, Stafford claimed
that he needed to include additional necessary parties, but he made no mention of
the prenuptial agreement and failed to attach a copy of the amended complaint to
the motion. On the same day, the trial court granted the motion ex parte, without
providing the husband with an opportunity to respond. In the amended complaint,
Stafford named five new asset-holders, all of whom had long since been
disclosed. But for the first time in a pleading, and without mention in the motion
for leave to amend, Stafford acknowledged that the prenuptial agreement existed
and claimed that it was the result of fraud, coercion, and duress. On April 26,
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2007, Stafford filed a brief opposing the husband’s prior motions for judgment on
the pleadings, noting that the court had permitted the amended complaint.
{¶ 10} On April 18, 2007, Stafford filed a motion for leave to answer the
husband’s February 2005 counterclaim, “premised upon issues regarding service
of the answer and counterclaim.” Again, the court granted leave on the same day
without allowing the husband to respond. Also on April 18, 2007, the court filed
a judgment entry, which for some unknown reason had not been filed after being
signed on October 20, 2005, denying the husband’s June 2005 motion for
summary judgment. In the wife’s belated answer to the husband’s counterclaim,
Stafford asserted that the prenuptial agreement identified in the counterclaim was
unenforceable.
{¶ 11} On April 19, 2007, the husband filed a series of motions arguing
that Stafford had manipulated the Civil Rules in order to belatedly introduce
arguments that he had previously failed to raise. Counsel for the husband also
looked into the accusation that there were “issues regarding service of the Answer
and Counterclaim” and found that the husband’s original certificate of service in
the answer and counterclaim had disappeared from the files of the clerk of courts.
Counsel for the husband had retained duplicate copies, which showed that the
originals of the answer and counterclaim sent to Stafford had included a
certificate-of-service page. Counsel sent this information to the court in a notice
and filing of a replacement certificate-of-service page of his original answer and
counterclaim.
{¶ 12} At the disciplinary hearing, Stafford testified that he had not
received the answer and counterclaim when it was filed in February 2005 and that
he did not obtain a copy of it until April or May 2007. However, correspondence
between Stafford and opposing counsel, as well as Stafford’s own June 13, 2005
memorandum in opposition to the husband’s summary judgment motion, discuss
the husband’s answer and counterclaim, which indicates that Stafford was
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properly served. Although it was evident that Stafford had long been aware of the
husband’s answer and counterclaim, both sides entered an antagonistic battle over
the husband’s proposed replacement certificate, involving a succession of
motions, conferences, and bitter correspondence.
{¶ 13} On May 24, 2007, Stafford, on behalf of the wife, filed a motion
for leave to file a second amended complaint, again requesting the addition of
allegedly newly disclosed parties. Stafford asserted in the motion that leave was
not even required because of “issues raised concerning the failure of the defendant
to properly serve his answer and counterclaim.” The court again granted the
motion ex parte. Stafford’s second amended complaint named additional
defendants, all of whom had been disclosed as stakeholders in prior pleadings and
discovery.
{¶ 14} Additionally, in a supplement to the wife’s original opposition to
the husband’s motion for judgment on the pleadings, Stafford explicitly asserted
that the husband had failed to comply with Civ.R. 5(D) by failing to include a
certificate of service with his answer and counterclaim and argued that the answer
and counterclaim were therefore not properly before the court. Stafford repeated
this claim during the responsive briefing of issues related to the husband’s
counterclaim.
{¶ 15} On June 13, 2007, the husband filed motions to vacate the ex parte
orders allowing Stafford’s amended complaints and to strike the amended
complaints from the record. On January 3, 2008, the trial court filed a judgment
entry addressing motions filed by both parties from 2005 to 2007. The court
declined to strike the husband’s answer and counterclaim for divorce or the
motions for judgment on the pleadings and to have averments deemed admitted,
denied the motion for judgment on the pleadings, and partially granted the motion
to have averments deemed admitted as to the existence of the prenuptial
agreement, but reserved judgment on the agreement’s enforceability. The
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decision also vacated the previously granted leave for the wife to respond to the
husband’s counterclaim for divorce, struck the wife’s belated response to the
husband’s counterclaim, provided an opportunity for the wife to make a showing
of excusable neglect to revive the response to the counterclaim, vacated the
previously granted leave to amend, and struck the wife’s second amended
complaint.
{¶ 16} In the decision, the trial court explained the importance of quickly
granting leave to amend pleadings to add new defendants in domestic-relations
cases to protect the marital estate from dissipated or hidden assets. The trial court
noted that Stafford’s attempt to add defenses related to the prenuptial agreement
was not appropriate for ex parte treatment and that it altered the pleading to
require providing the opposing party with the opportunity to respond. The trial
court noted that it was customary to grant immediate leave only to include newly
found defendants and that Stafford’s attempted action was not contemplated in the
trial court’s customary proceedings.
{¶ 17} After the appointed receiver evaluated the parties’ assets and
evaluated their pleadings, a receiver’s assessment allowed the parties to amicably
settle the property-division issues.
{¶ 18} The board determined that Stafford had “intentionally misled the
court by filing his motion for leave to file an amended complaint on specific
grounds stated and then surreptitiously including an additional allegation
regarding the prenuptial agreement omitted in the original complaint but critical
to his client's interests.” The board further noted that Stafford had misled the
domestic-relations court into granting ex parte relief “without the court's full
knowledge of the extent and purpose of the relief sought and by taking advantage
of local rules not designed for the purpose to do so.”
{¶ 19} Based upon these factual findings, the board concluded that
Stafford’s conduct involved one violation of Prof.Cond.R. 8.4(c) (prohibiting
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conduct involving dishonesty, fraud, deceit, or misrepresentation) and one
violation of Prof.Cond.R. 3.3(d) (in an ex parte proceeding, requiring a lawyer to
inform the tribunal of all material facts known to the lawyer that will enable the
tribunal to make an informed decision, whether or not the facts are adverse).
However, the board recommended dismissal of disciplinary counsel’s two
additional alleged violations of Prof.Cond.R. 8.4(c) (prohibiting conduct
involving dishonesty, fraud, deceit, or misrepresentation), one additional alleged
violation of Prof.Cond.R. 3.3(d), and all remaining allegations of violations of
Prof.Cond.R. 3.3(a)(1) (prohibiting a lawyer from knowingly making a false
statement of fact or law to a tribunal), 8.4(d), and 8.4(h) (prohibiting conduct that
adversely reflects on the lawyer's fitness to practice law).
Objections to Count One
{¶ 20} Disciplinary counsel objects to the board’s recommendation that
we dismiss the violation of Prof.Cond.R. 8.4(d), arguing that Stafford’s actions as
found by the board constituted conduct that was prejudicial to the administration
of justice. Stafford objects to the board’s decision on Count One in its entirety,
arguing that disciplinary counsel has failed to prove that Stafford has committed
any misconduct whatsoever.
{¶ 21} In a disciplinary proceeding, the relator bears the burden of
proving an attorney’s misconduct “by clear and convincing evidence.” Gov.Bar
R. V(6)(J). The standard of clear and convincing evidence is an intermediate
standard that requires “more than a mere preponderance” of the evidence, but not
“such certainty as is required beyond a reasonable doubt as in criminal cases. It
does not mean clear and unequivocal.” (Emphasis sic.) Cross v. Ledford, 161
Ohio St. 469, 477, 120 N.E.2d 118 (1954), paragraph seven of the syllabus.
{¶ 22} To buttress his assertion that finding a violation of Prof.Cond.R.
8.4(c) is unsupported, Stafford recites his extensive and complex version of the
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events surrounding his motions to amend the pleadings and argues that the board
misunderstood or misconstrued the evidence by failing to adopt his version.
{¶ 23} The documents presented by the parties fully support the board’s
findings that the additional defendants that Stafford added to the wife’s pleadings
were known to Stafford far in advance of the motions. Although Stafford
provides a number of reasons to justify his later addition of those parties in spite
of this knowledge, the board found credible evidence that Stafford’s justification
was not appropriate. There was no danger of assets being dissipated because both
parties were aware of the additional defendants. Stafford’s conduct in seeking an
ex parte order cannot be justified by fear of concealment or dissipations of assets.
The board correctly concluded that Stafford unjustifiably alleged the existence of
the prenuptial argument in the amended complaint without any mention of the
issue in his motions for leave to amend the pleadings.
{¶ 24} By insisting that he slipped the prenuptial-agreement argument in
under the cover of a legitimate issue instead of a flimsy façade, Stafford largely
distracts from the core problem. He was not honest with the court when he
amended the complaint to add a defense that he might have otherwise waived.
Further, we reject Stafford’s contention that the ultimate settling of the case
somehow legitimized his unscrupulous procedural tactics.
{¶ 25} By obtaining ex parte leave to file amended complaints, Stafford
attempted to avoid responding to the husband’s related motions and attempted to
deprive the husband of the opportunity to file any opposition. By exploiting the
peculiar ex parte motions practice of the Domestic Relations Division of the
Cuyahoga County Common Pleas Court, Stafford was able to surreptitiously add
to the wife’s pleadings an untimely denial of the validity of the prenuptial
agreement. Stafford’s actions contributed to extending the proceedings into a
years-long war, replete with extensive, bitter battles over every minute detail.
Almost a year after Stafford filed the first amended complaint, the trial court
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issued a decision overruling the previous order permitting the ex parte motions to
file the amended complaint.
{¶ 26} While Stafford repeatedly claimed that there were problems with
the service of the husband’s answer and counterclaim, implying that the wife was
never served, the record discloses that the answer and counterclaim were
expressly acknowledged by Stafford during the proceedings in 2005. By
belatedly manufacturing an issue with the service of the counterclaim, Stafford
attempted to relieve the wife for two years of her obligation to justify her failure
to answer the husband’s counterclaim.
{¶ 27} In this disciplinary case, both sides presented evidence to the panel
over the course of a week, and hundreds of documents were considered by the
panel and board. Because the panel was in the best position to assess the
credibility of the witnesses and rejected Stafford’s testimony that he did not
intentionally mislead the trial court into considering additional pleadings, we
defer to that determination. See Cuyahoga Cty. Bar Assn. v. Wise, 108 Ohio St.3d
164, 2006-Ohio-550, 842 N.E.2d 35, ¶ 24 (“Unless the record weighs heavily
against a hearing panel's findings, we defer to the panel's credibility
determinations, inasmuch as the panel members saw and heard the witnesses
firsthand”). Accordingly, we overrule Stafford’s objections and adopt the board’s
findings of fact and conclusion that Stafford’s conduct constituted a violation of
Prof.Cond.R. 8.4(c).
{¶ 28} Stafford next objects to the board’s conclusion that Stafford
violated Prof.Cond.R. 3.3(d). Stafford argues that the board’s conclusion is
contradicted by the board’s own finding that the use of ex parte orders was part of
common procedure in the Domestic Relations Division of the Cuyahoga County
Common Pleas Court. However, Prof.Cond.R. 3.3(d) prohibits the omission of
known material facts in ex parte proceedings, not ex parte proceedings
themselves. The rule recognizes that in ex parte proceedings, an attorney has an
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enhanced responsibility to disclose any material information, whether it be
favorable or unfavorable, due to the absence of the opposing advocate. Staff
comment 14.
{¶ 29} Stafford argues that his use of the ex parte motions practice “is in
no way evidence of misconduct on the part of the Respondent. If it were, then
every attorney practicing in Cuyahoga County Domestic Relations Court would
be guilty of ethical violations.” During oral argument before this court, Stafford
repeatedly stressed that his filing of ex parte motions was simply the way people
practice in that county’s domestic-relations court.
{¶ 30} Without belaboring the point, Stafford’s assertion—that his
conduct is merely the way attorneys practice in Cuyahoga County Domestic
Court—is simply not accurate, nor is it a defense. Moreover, it is an insult to
every ethical attorney who practices in Cuyahoga County. Each attorney licensed
to practice law in Ohio is required to abide by the Rules of Professional Conduct.
The customary use of a particular procedure cannot condone the unethical
exploitation of that procedure. It is axiomatic that “[a]ttorneys must use the tools
of our legal system as they were intended,” and they have “a duty not to abuse
legal procedure.” Columbus Bar Assn. v. Finneran, 80 Ohio St.3d 428, 430, 687
N.E.2d 405 (1997). Stafford abused the domestic-relations court’s procedure and
deceived the court by requesting leave to amend a pleading, bringing attention to
a singular issue while surreptitiously including a completely different and
unrelated amendment in the pleadings. Belatedly sneaking a defense into
pleadings without the knowledge or permission of the court constitutes a failure to
“inform the tribunal of all material facts known to the lawyer.” Prof.Cond.R.
3.3(d). Accordingly, we overrule Stafford’s objections and adopt the board’s
findings of fact and conclusion that Stafford’s conduct constituted a violation of
Prof.Cond.R. 3.3(d).
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{¶ 31} Disciplinary counsel objects to the board’s recommendation that
we dismiss the portion of Count One charging Stafford with violating
Prof.Cond.R. 8.4(d). Disciplinary counsel asserts that we have previously held
that intentionally misleading a court can constitute conduct that is prejudicial to
the administration of justice, citing Cuyahoga Cty. Bar Assn. v. Hardiman, 100
Ohio St.3d 260, 2003-Ohio-5596, 798 N.E.2d 369, ¶ 15; Akron Bar Assn. v.
Markovich, 117 Ohio St.3d 313, 2008-Ohio-862, 883 N.E.2d 1046, ¶ 7-9; and
Disciplinary Counsel v. Robinson, 126 Ohio St.3d 371, 2010-Ohio-3829, 933
N.E.2d 1095, ¶ 20-22.
{¶ 32} In all these cases, the respondents engaged in behavior that not
only involved misrepresentations or dishonesty in violation of Prof.Cond.R.
8.4(c), but also encompassed a violation of 8.4(d) by having additional deleterious
effects on the cases and clients. Hardiman at ¶ 4-5 (the respondent led a litigant
and opposing counsel to believe that respondent was representing the litigant and
then did not appear for court, causing judgment to be entered against the litigant);
Markovich at ¶ 17 (among other violations, respondent was disruptive during
proceedings and discourteous to the court and opposing counsel during
proceedings, disobeyed court rulings, and was cited for contempt); Robinson at
¶ 6-11 (respondent lied under oath and secretly destroyed evidentiary documents).
Here, time and money were certainly wasted as a result of Stafford’s behavior, but
we defer to the board’s findings and conclude that no actual legal prejudice
occurred. Accordingly, we overrule disciplinary counsel’s objections and adopt
the board’s findings of fact and conclusion that disciplinary counsel failed to
establish by clear and convincing evidence that Stafford’s conduct in Count One
violated Prof.Cond.R. 8.4(d).
{¶ 33} Both sides in this case have presented a considerable amount of
evidence to the panel, which was reviewed by the full board. After thoroughly
reviewing the record, we overrule the remaining objections of both parties. We
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defer to the panel’s credibility determinations, and we adopt the board’s findings
of fact. In accordance with the board’s recommendation, we hold that Stafford
violated Prof.Cond.R. 3.3(d) and 8.4(c), and we dismiss the remaining charges in
Count One.
Count Two—Events Preceding the Rymers Matter
{¶ 34} Although the hearing panel sua sponte dismissed Count Two, a
brief account of the facts will help form the context in which the events in Count
Three occurred.
{¶ 35} In November 2000, Eugene A. Lucci was elected judge of the Lake
County Court of Common Pleas and held office from January 2001 through the
time of the events recounted in Count Three. Lucci separated from his wife in
November 2007, and the parties planned to divorce. Around December 2007,
Lucci became involved with Amy Rymers, who was married to but separated
from her husband, Jeffery Rymers.
{¶ 36} On March 12, 2008, Lucci had a meeting with Stafford at
Stafford’s law firm to discuss his marital situation, his negotiations with his
wife’s attorney, and his preparation of a proposed separation agreement. Lucci
and Stafford provided conflicting testimony as to whether there was any mention
of Lucci’s relationship with Amy Rymers, but Stafford’s notes from the meeting
were consistent with Stafford’s contentions that there was no mention of it. Lucci
and Stafford had no further meetings or discussions, no retainer agreement was
signed, and no letter of undertaking was provided. Stafford took no part in
Lucci’s dissolution proceedings. Lucci testified that he believed that Stafford
would have represented him if the matter had proceeded to a contested divorce.
Amy Rymers and her children began living with Lucci in September 2008. The
Luccis’ dissolution was finalized in October 2008.
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Count Three—The Rymers Matter
{¶ 37} The Rymers’ divorce proceedings began in 2009. Stafford
represented Jeffery. Amy filed a complaint for divorce in the Lake County
Common Pleas Court, and a visiting judge was assigned to preside over the case.
After Stafford filed his notice of appearance, Lucci, through counsel, contacted
Stafford and asserted that his representation in the Rymers case conflicted with
Lucci’s interests.
{¶ 38} In a May 19, 2009 letter, Lucci’s counsel explained Lucci’s
personal and financial involvement with Amy, as well as Lucci’s past consultation
with Stafford regarding his own divorce matters, and asked that Stafford withdraw
from representation in the Rymers matter. A paragraph in the correspondence,
with which Stafford would later take issue, reads as follows:
{¶ 39} “In addition, in earlier discussions between the Rymers [sic], Mr.
Rymers claimed that, among the issues he intends to raise in his custody fight, is
the danger of Mrs. Rymers being involved with Mr. Lucci, who as you know is a
Common Pleas Judge in Lake County. Mr. Rymers said he is concerned for the
children's safety if potential transgressors, etc. seek revenge against a judge.”
{¶ 40} After Stafford did not withdraw from the Rymers case, Lucci filed
a motion to intervene and to disqualify Stafford as counsel, asserting that
Stafford’s prior consultation with Lucci caused a conflict of interest.
{¶ 41} Stafford sent his recently hired associate, Nicholas M. Gallo, to
attend the June 3, 2009 pretrial conference with Jeffery. Neither Jeffery nor Gallo
had ever met Lucci. While the parties were waiting for the conference to begin,
the wife’s attorney approached the husband and Gallo and personally delivered
Lucci’s motion to intervene. At about this time, Jeffery noticed a man, whom
Jeffery believed to be Lucci, in the hallway outside Lucci’s chambers. Jeffery
believed that the man was staring at him as if to intimidate him. Jeffery brought
this circumstance to Gallo’s attention, and Gallo contacted Stafford about the
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incident. Upon hearing Gallo’s verbal description of the man in the hallway,
Stafford concluded that the description matched that of Lucci and directed Gallo
to prepare a motion to strike Lucci’s motion to intervene as well as a motion for
sanctions and attorney fees. Stafford directed both Gallo and the husband to
complete affidavits about the incident to include with the motions. Both
affidavits accused Lucci of threatening and intimidating the husband by staring at
him.
{¶ 42} On June 17, 2009, Stafford filed the motion to strike and/or
dismiss the motion to intervene and the motion for sanctions and attorney fees
pursuant to R.C. 2323.51 and Civ.R. 11. Stafford’s memorandum in support of
the motions not only contested the merits of Lucci’s motion to intervene, but also
accused Lucci of committing misconduct by filing the motion and abusing his
position as judge of the Lake County Common Pleas Court. Stafford’s
memorandum referred to Lucci as Judge Lucci, attacked Lucci’s integrity,
wisdom, and ethics in his position as a judge, and specifically accused Lucci of
violating Jud.Cond.R. 1.3 (prohibiting abuse of the prestige of judicial office).
Gallo’s and Jeffery’s affidavits were attached to the motion.
{¶ 43} Stafford claimed in the June 17, 2009 memorandum that Lucci had
committed threatening conduct not only toward Jeffery, but also toward Stafford
himself in Lucci’s counsel’s May 19, 2009 letter demanding that Stafford
withdraw from Jeffery’s case. Specifically, Stafford asserted that Jeffery had
been “intimidated and threatened by the conduct of [Lucci] in this matter,
including but not limited to, his threats and his conduct at the most recent pretrial
in this matter. This is especially so, given [Lucci’s] position as a presiding [sic]
in the Lake County Court of Common Pleas.” Stafford also claimed that Lucci
had “engaged in a pattern of harassing and threatening conduct” toward both the
husband and Stafford and that Lucci had “intimated on numerous occasions these
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threats, based upon [Lucci’s] position as a presiding Judge in the Lake County
Court of Common Pleas.”
{¶ 44} Stafford accused Lucci of using “veiled threats” in the May 19,
2009 letter. Stafford quoted the letter as stating: “[I]n earlier discussions between
the Rymers [sic], Mr. Rymers claimed that, among the issues he intends to raise in
his custody fight, is the danger of Mrs. Rymers being involved with Mr. Lucci,
who as you know is a Common Pleas Judge in Lake County.” (Emphasis added
by respondent.) By abridging this quote and using it out of context, Stafford
created the appearance of a threat where there was none.
{¶ 45} Shortly after Stafford’s filing of the above motions and
memorandum, Gallo resigned from Stafford’s firm. Gallo testified that he had
based his averments in the affidavit on his conversation with Stafford, during
which Stafford told Gallo that the description matched Lucci’s.
{¶ 46} On June 26, 2009, Lucci filed a response to the husband’s motion
to strike and averred that he had not been in the hallway the day of the pretrial and
had not engaged in any staring or intimidation. Despite Lucci’s response,
Stafford took no action to investigate, verify, or refute Lucci’s sworn statement.
Recorded video from the court later proved that the man in the hallway was not
Lucci. On January 25, 2010, Stafford filed a motion to withdraw the affidavits of
the husband and Gallo; however, Stafford filed no memorandum with the motion
and did not move to withdraw his own June 17, 2009 motion, which included the
incendiary statements at issue today.
{¶ 47} The board determined that Stafford had personally instructed his
subordinate associate to prepare a motion to strike Lucci’s motion to intervene
and to prepare the affidavits claiming that Lucci had threatened and intimidated
the husband. The board found that the statement regarding intimidation was
completely false and irrelevant to the legal issues presented in the motion and that
Stafford had impugned Lucci’s judicial integrity by accusing him of violating the
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Rules of Judicial Conduct in an improper forum. The board further found that the
excerpt of correspondence from Lucci’s counsel was taken out of context and
used “in a deliberately misleading manner to imply a threatened abuse of judicial
status that was not made.” The board concluded that Stafford had made deliberate
misrepresentations to the domestic-relations court regarding the conduct of both
Lucci and Lucci’s counsel with the intent to deceive the court.
{¶ 48} Based upon these factual findings, the board concluded that
Stafford’s conduct violated Prof.Cond.R. 5.1(c)(1) (declaring that a lawyer shall
be responsible for another lawyer's violation of the Ohio Rules of Professional
Conduct if the lawyer orders or, with knowledge of the specific conduct, ratifies
the conduct involved), 8.2(a) (prohibiting a lawyer from making a statement that
the lawyer knows to be false or with reckless disregard as to its truth or falsity
concerning the integrity of a judicial officer), 8.4(c), and 8.4(d).
{¶ 49} However, the board recommended dismissal of alleged violations
of Prof.Cond.R. 3.3(a)(3) (prohibiting a lawyer from offering evidence that he
knows to be false and requiring remedial measures if the lawyer later comes to
know that evidence is false), 4.1(b) (prohibiting a lawyer from failing to disclose
a material fact when disclosure is necessary to avoid assisting a fraudulent act by
a client), 5.1(c)(2) (declaring that a lawyer shall be responsible for another
lawyer's violation of the Ohio Rules of Professional Conduct if the lawyer is a
partner in the law firm in which the lawyer practices and knows of the conduct at
a time when its consequences can be avoided or mitigated but fails to take
reasonable remedial action), and 8.4(h) (prohibiting conduct that adversely
reflects on the lawyer's fitness to practice law).
Objections to Count Three
{¶ 50} As with Count One, Stafford objects to the board’s decision on
Count Three in its entirety, arguing that disciplinary counsel failed to prove that
Stafford committed any misconduct whatsoever. Because the record does not
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weigh heavily against the board’s findings, we again defer to the credibility
determinations of the panel, and we adopt the board’s findings of fact and
misconduct. See Cuyahoga Cty. Bar Assn. v. Wise, 108 Ohio St.3d 164, 2006-
Ohio-550, 842 N.E.2d 35, ¶ 24.
{¶ 51} First, Stafford asserts that there was no proof of a violation of
Prof.Cond.R. 5.1(c)(1) because there was no proof that Stafford had supervised
Gallo, no proof that Stafford had participated in the motion to strike or the
affidavits of Gallo and Jeffery, and no proof that Gallo committed misconduct.
{¶ 52} Evidence clearly and convincingly supports the board’s findings.
Stafford is a partner in his firm and had supervisory authority over Gallo.
Stafford was counsel of record in the Rymers case and had personally assigned
Gallo to participate in it. Stafford was lead counsel for the motion to strike, the
motion alleged that Stafford himself was one of the victims of Lucci’s alleged
threats, and Stafford’s personal affidavit regarding his past interactions with Lucci
is attached to the motion. Finally, the record reflects that Gallo personally made
statements that were false, inflammatory, and irrelevant to the issues presented.
Gallo has been publicly reprimanded for his misconduct. Disciplinary Counsel v.
Gallo, 131 Ohio St.3d 309, 2012-Ohio-758, 964 N.E.2d 1024. Accordingly, we
overrule Stafford’s objections and adopt the board’s findings of fact and
conclusion that Stafford’s conduct constituted a violation of Prof.Cond.R.
5.1(c)(1).
{¶ 53} Stafford asserts that Prof.Cond.R. 8.2(a) is inapplicable because
Lucci was not acting in his official capacity as a judge. However,
Prof.Cond.R.8.2(a) makes no differentiation among the different possible roles of
the judge: the focus is on the conduct of the attorney. A judge need not be acting
in his official capacity for an attorney to violate the prohibition against making a
recklessly false statement concerning that judge’s integrity as a judicial officer.
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See, e.g., Disciplinary Counsel v. Baumgartner, 100 Ohio St.3d 41, 2003-Ohio-
4756, 796 N.E.2d 495, ¶ 8-9.
{¶ 54} Stafford further asserts that no violation of Prof.Cond.R. 8.2(a),
8.4(c), or 8.4(d) occurred because Stafford had no knowledge that the statements
were false, because Stafford himself made no false statements, because any
misrepresentation in Stafford’s own motion regarding the Lucci correspondence
was dispelled by the attached copy of the correspondence, and because the
affidavits were withdrawn once the falsity of the statements came to light.
{¶ 55} This court uses “ ‘an objective standard to determine whether a
lawyer’s statement about a judicial officer is made with knowledge or reckless
disregard of its falsity.’ ” Disciplinary Counsel v. Gardner, 99 Ohio St.3d 416,
2003-Ohio-4048, 793 N.E.2d 425, at ¶ 26, quoting Annotated Model Rules of
Professional Conduct, Rule 8, 566 (4th Ed.1999). This standard looks to
“ ‘ “what the reasonable attorney, considered in light of all his professional
functions, would do in the same or similar circumstances” * * * [and] focuses on
whether the attorney had a reasonable factual basis for making the statements,
considering their nature and the context in which they were made.’ ” Id., quoting
Standing Commt. on Discipline of United States Dist. Court for Cent. Dist. of
California v. Yagman, 55 F.3d 1430, 1437 (9th Cir.1995), quoting United States
Dist. Court, E. Dist. of Washington v. Sandlin, 12 F.3d 861, 867 (9th Cir.1993).
Accordingly, we held that sanctions are appropriate when an attorney lodges
accusations of judicial impropriety that a reasonable attorney would consider
untrue. Gardner at ¶ 31.
{¶ 56} A failure to make any real inquiry into a judicial officer’s integrity
prior to making accusations of judicial impropriety demonstrates a reckless
disregard for the truth. Gardner at ¶ 33. Here, Stafford did nothing to verify the
truth of the statements of Gallo and Jeffery when he instructed them to complete
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affidavits, and he further failed to conduct any inquiry after Lucci filed a sworn
statement denying the allegations of Gallo and Jeffery.
{¶ 57} Stafford intentionally and unnecessarily demeaned Lucci as a
judge in a manner that was reckless and in the public record. He recklessly
presented false evidence to the court. Stafford himself made false statements
regarding the integrity of Lucci as a judicial officer in his memorandum in
support of the motion to strike and/or dismiss the motion to intervene and the
motion for sanctions and attorney fees, and failed to withdraw the memorandum
even after the falsity of the statements had been exposed and after the supporting
affidavits of Gallo and Jeffery had been withdrawn.
{¶ 58} As for Stafford’s additional claim that Lucci made threatening
statements in correspondence, a reasonable attorney would believe that Stafford’s
statement was false because the statements, when read in context, conveyed no
threat whatsoever. Certainly Stafford’s distortions regarding Lucci’s letter are
able to be dispelled by closer examination of the letter itself. However, Stafford’s
blatant use of the quote out of context, manipulation of the language, and
accusations of violations of the Code of Judicial Conduct are histrionics that are
unbecoming a member of the bar. Accordingly, we overrule Stafford’s
objections and adopt the board’s findings that Stafford’s conduct constituted
violations of Prof.Cond.R. 5.1(c)(1), 8.2(a), 8.4(c), and 8.4(d), and we dismiss the
remaining charges in Count Three.
Additional Objections
{¶ 59} In addition to the specific counts, Stafford introduces a panoply of
objections, largely related to procedural matters. Stafford argues that the board
violated his due-process rights by considering certain portions of Count One, even
though the probable-cause panel had not reviewed them. Disciplinary counsel
correctly points out that nothing presented to the probable-cause panel is ever
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before the hearing panel, the board, or this court. Pursuant to Gov.Bar R.
V(11)(E), those proceedings are private.
{¶ 60} Stafford also argues that disciplinary counsel should not have been
permitted to bring the additional charges presented in Count Three, because the
charges were not presented to a probable-cause panel. However, once a formal
complaint is pending, a disciplinary complaint may be amended at any time “prior
to final order of the Supreme Court” as long as the respondent is given a
reasonable opportunity to respond. Gov.Bar R. V(11)(D); Disciplinary Counsel v.
Heiland, 116 Ohio St.3d 521, 2008-Ohio-91, 880 N.E.2d 467, ¶ 33-34; BCGD
Proc.Reg. 9(D) (“The relator may not amend the complaint within thirty days of
the scheduled hearing without a showing of good cause to the satisfaction of the
panel chair”). Stafford has not provided any evidence that he was prevented from
preparing or responding to the amended charges in the complaint.
{¶ 61} Next, Stafford claims that disciplinary counsel violated Gov.Bar R.
V(4)(D), which requires a disciplinary investigation to be completed within 60
days of filing a grievance, unless an extension is granted for good cause, and the
disposition is to be decided within 30 days of the close of the investigation. Here,
disciplinary counsel was granted multiple extensions of time for good cause.
Stafford is correct that “[i]nvestigations that extend beyond one year from the date
of filing are prima facie evidence of unreasonable delay.” Gov.Bar R. V(4)(D)(3).
However, Stafford does not assert, let alone demonstrate, that he was prejudiced
by the delay. Gov.Bar R. V(4)(D)(3) requires a showing “that the rights of the
respondent to have a fair hearing have been violated” before a grievance can be
dismissed. We agree with the board’s decision to deny Stafford’s motion to
dismiss and overrule Stafford’s objection.
{¶ 62} Stafford next claims that disciplinary counsel did not provide
proper responses to some of the hundreds of requests for admission filed by
Stafford regarding some specifics of the husband’s assets in the Tallisman matter.
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Upon review of the record, we agree with the board’s conclusion that Stafford’s
motions to compel merely disputed disciplinary counsel’s statements and sought
to introduce matters that were irrelevant and distracted from the question of
Stafford’s alleged misconduct. We review the board’s decisions to deny
Stafford’s motions to compel for an abuse of discretion, and we find none. See,
e.g., Columbus Bar Assn. v. Ewing, 75 Ohio St.3d 244, 252, 661 N.E.2d 1109
(1996) (upholding the panel’s discovery decisions that “appropriately confined
respondent to relevant matters”).
{¶ 63} Finally, Stafford objects to various prehearing rulings by the board,
including an order preventing Stafford from presenting the argument that attorney
James Cahn, Mr. Tallisman’s attorney, had committed malpractice in the
Tallisman matter and that Cahn had personal motives for filing the grievance
against Stafford. He also objects to the orders separating witnesses and finding
that the testimony of three additional witnesses would be irrelevant to the issues
before the panel. Again, we find that Stafford’s arguments were largely a
distraction from facts and issues that were relevant to a determination whether
Stafford had committed misconduct. We conclude that the board did not abuse its
discretion by ruling adversely to Stafford on these motions. Accordingly, we
overrule Stafford’s objections.
Sanction
{¶ 64} When imposing sanctions for attorney misconduct, we weigh
evidence of the aggravating and mitigating factors listed in BCGD Proc.Reg.
10(B). Disciplinary Counsel v. Broeren, 115 Ohio St.3d 473, 2007-Ohio-5251,
875 N.E.2d 935, ¶ 21. In making a final determination, we consider a number of
factors, including the ethical duties that the lawyer violated and the sanctions
imposed in similar cases. Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio St.3d 424,
2002-Ohio-4743, 775 N.E.2d 818, ¶ 16. Because each disciplinary case is unique,
we are not limited to the factors specified in the rule but may take into account
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“all relevant factors” in determining what sanction to impose. BCGD Proc.Reg.
10(B).
{¶ 65} In terms of aggravating factors, the board found that Stafford had
acted with a dishonest motive, committed multiple violations of the Ohio Rules of
Professional Conduct, and refused to acknowledge the wrongful nature of his
conduct. See BCGD Proc.Reg. 10(B)(1)(b), (d), and (g). In terms of mitigating
factors, the board found that Stafford had no record of professional misconduct.
See BCGD Proc.Reg. 10(B)(2)(a). Although Stafford did not submit any
evidence of his character or reputation, testimony from attorney Cahn and Judge
Lucci indicated that Stafford was a “very good lawyer.” The board found that
Stafford enjoys a good professional reputation. See BCGD Proc.Reg. 10(B)(2)(e).
The board recommended that Stafford be suspended from the practice of law in
Ohio for a period of 12 months, with all 12 months stayed on the condition that he
engage in no further professional misconduct.
{¶ 66} Disciplinary counsel objects to the board’s recommended sanction
and contends that we should impose an actual suspension of no less than 12
months. We agree.
{¶ 67} In cases that involve multiple instances of misconduct that include
a violation of Prof.Cond.R. 8.4(c), we impose an actual suspension. See
Disciplinary Counsel v. Robinson, 126 Ohio St.3d 371, 2010-Ohio-3829, 933
N.E.2d 1095, ¶ 48; Cincinnati Bar Assn. v. Farrell, 119 Ohio St.3d 529, 2008-
Ohio-4540, 895 N.E.2d 800, ¶ 21.
{¶ 68} Stafford’s six violations of the Rules of Professional Conduct
stemmed from a course of conduct that was replete with dishonest, deceptive, and
disrespectful acts. When an attorney engages in such conduct and violates
Prof.Cond.R. 8.4(c), “the attorney will be actually suspended from the practice of
law for an appropriate period of time.” Disciplinary Counsel v. Fowerbaugh, 74
Ohio St.3d 187, 658 N.E.2d 237 (1995), syllabus. “A lawyer who engages in a
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January Term, 2012
material misrepresentation to a court * * * violates, at a minimum, the lawyer’s
oath of office that he or she will not ‘knowingly * * * employ or countenance any
* * * deception, falsehood, or fraud.’ ” Id. at 190, quoting former Gov.Bar R.
I(8)(A). “Such conduct strikes at the very core of a lawyer's relationship with the
court and with the client. Respect for our profession is diminished with every
deceitful act of a lawyer.” Id.
{¶ 69} Additionally, Stafford’s misconduct in the Rymers matter included
false statements concerning the integrity of a judicial officer. When an attorney
engages in such conduct and violates Prof.Cond.R. 8.2(a), we “require an actual
suspension from the practice of law.” Gardner, 99 Ohio St.3d 416, 2003-Ohio-
4048, 793 N.E.2d 425, at ¶ 36, citing Disciplinary Counsel v. West, 85 Ohio St.3d
5, 706 N.E.2d 760 (1999), and Columbus Bar Assn. v. Hartwell, 35 Ohio St.3d
258, 520 N.E.2d 226 (1988). In more extreme cases involving an unfounded
attack against the integrity of a judicial officer, we have indefinitely suspended
offending attorneys and have even imposed permanent disbarment. See, e.g.,
Disciplinary Counsel v. Frost, 122 Ohio St.3d 219, 2009-Ohio-2870, 909 N.E.2d
1271 (indefinite suspension); Baumgartner, 100 Ohio St.3d 41, 2003-Ohio-4756,
796 N.E.2d 495 (disbarment).
{¶ 70} When an attorney exhibits a pattern of abusing legal procedures, be
it for his own gain or for his client’s advantage, an actual suspension from the
practice of law is called for. See, e.g., Finneran, 80 Ohio St.3d at 430, 687
N.E.2d 405; Disciplinary Counsel v. Holland, 106 Ohio St.3d 372, 2005-Ohio-
5322, 835 N.E.2d 361, ¶ 21. In Finneran, we indefinitely suspended an attorney
from the practice of law after he engaged in a years-long pattern of “serial
refiling” and other evasive and dilatory tactics, intending to procure a more
favorable settlement offer from opponents in the face of even more protracted
proceedings. Id. at 431. The attorney in Holland took advantage of the
technicalities of a juvenile court’s fee-payment process and obtained fees from the
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court for more hours than he possibly could have worked. Holland at ¶ 7-8. This
court rejected the attorney’s argument that the juvenile court condoned his billing
practices because it paid his requested fees, and we imposed a one-year
suspension. Id. at ¶ 19, 25.
{¶ 71} It is true, as Stafford submits, that we have imposed partially or
fully stayed terms of suspension in some disciplinary cases where an attorney’s
violations involved dishonest, deceitful, or fraudulent conduct. See Cincinnati
Bar Assn. v. Reisenfeld, 84 Ohio St.3d 30, 701 N.E.2d 973 (1998); Disciplinary
Counsel v. Fumich, 116 Ohio St.3d 257, 2007-Ohio-6040, 878 N.E.2d 6;
Disciplinary Counsel v. Niermeyer, 119 Ohio St.3d 99, 2008-Ohio-3824, 892
N.E.2d 434; Disciplinary Counsel v. Potter, 126 Ohio St.3d 50, 2010-Ohio-2521,
930 N.E.2d 307.
{¶ 72} In Reisenfeld, an attorney had improperly executed and notarized
affidavits in what the attorney claimed to be emergency circumstances. Id. at 31-
32. We imposed a six-month, stayed suspension because the violations were
isolated incidents in an otherwise unblemished legal career, they did not constitute
an ongoing course of conduct, no client was harmed, and the attorney readily
cooperated in the investigation. Id.
{¶ 73} The attorney in Fumich engaged in a more serious course of
misconduct by accidentally causing a client’s medical-malpractice case to be
dismissed, failing to reveal the dismissal to the client, negotiating a nonexistent
settlement, and then paying the “settlement” amount out of the attorney’s own
personal funds. Fumich, 116 Ohio St.3d 257, 2007-Ohio-6040, 878 N.E.2d 6, at
¶ 4-7. Notwithstanding this dishonesty, we imposed a 12-month, stayed
suspension due to the absence of aggravating factors and the significant
mitigating evidence that the attorney had no prior disciplinary record, cooperated
fully in the disciplinary process, accepted responsibility for his wrongful conduct,
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January Term, 2012
submitted various character letters, and had not caused financial harm. Id. at ¶ 11,
16-18.
{¶ 74} In Niermeyer, the attorney committed a single act of misconduct
by filing a falsified document with the Bureau of Workers’ Compensation.
Niermeyer, 119 Ohio St.3d 99, 2008-Ohio-3824, 892 N.E.2d 434, at ¶ 4. Despite
finding that the attorney had acted with a dishonest or selfish motive, we imposed
a 12-month, stayed suspension due to the significant mitigating evidence that the
attorney had self-reported the misconduct, had made immediate efforts to rectify
the matter, had no disciplinary record, cooperated fully in the disciplinary process,
accepted responsibility for his wrongful conduct, and had submitted evidence of
good character and reputation. Id. at ¶ 9, 13-14.
{¶ 75} In Potter, the attorney was the executor of an estate that held
property that the attorney wanted to purchase. Id., 126 Ohio St.3d 50, 2010-Ohio-
2521, 930 N.E.2d 307, at ¶ 6. The attorney asked a friend to purchase the
property with the attorney’s funds and did not disclose the situation to anyone
involved with the estate. Id. Again, despite a finding of dishonest or selfish
motive, we imposed a stayed 12-month suspension due to the isolated nature of
the incident and the significant mitigating evidence that the attorney self-reported
the misconduct, made immediate efforts to rectify the matter, had no disciplinary
record, cooperated fully in the disciplinary process, and accepted responsibility
for his wrongful conduct. Id. at ¶ 7, 9-11.
{¶ 76} Stafford maintains that there is no difference between these latter
cases and his own. However, they all involve attorneys who have a single,
isolated incident of misconduct in an otherwise unblemished legal career and/or
an abundance of mitigating factors. Stafford’s case does not present such a
situation, as he has engaged in multiple acts of misconduct over the course of
multiple years, and the aggravating factors in his case far outweigh those offered
in mitigation. Accordingly, we reject Stafford’s argument for a lesser sanction.
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{¶ 77} We also reject the board’s recommended lesser sanction. The
board justified staying Stafford’s suspension by relying on Stark Cty. Bar Assn. v.
Ake, 111 Ohio St.3d 266, 2006-Ohio-5704, 855 N.E.2d 1206. In Ake, the attorney
had represented himself in his own divorce proceedings and deliberately ignored
the domestic-relations court’s orders on five separate occasions during the
proceedings. Id. at ¶ 39. The attorney’s actions constituted a number of
violations, including the equivalents to the current Prof.Cond.R. 8.4(c), (d), and
(h). Id. at ¶ 38. Because this court was confident that the attorney’s violations
arose out of unique circumstances and would not be repeated, we imposed a six-
month suspension, with the entire period stayed upon certain conditions. Id. at
¶ 46-47.
{¶ 78} Here, the board determined that the circumstances surrounding
Stafford’s myriad violations were similarly unique and believed that neither the
similar circumstances nor the violations committed by Stafford were likely to
recur. Specifically, the board found that Stafford’s misconduct in Tallisman arose
in the peculiar ex parte practice of the local court and that the misconduct
occurred before the trial judge actively took control, after which the proceedings
were brought to order and were resolved through an amicable settlement. The
board found that Stafford’s misconduct in Rymers was inspired by an
“overreaction in kind to Lucci’s claim of Stafford’s breach of ethics by appearing
as counsel in the Rymers case.” The board found both counts to have arisen in “a
highly unusual circumstance unlikely to recur.”
{¶ 79} We agree with the board that the circumstances of any contested
divorce proceeding are unique and complex. However, Stafford’s
circumstances—namely his role as an attorney in a contested-divorce
proceeding—are certain to recur. We conclude that the circumstances in this case
are not analogous to those in Ake and are more similar to cases such as Finneran,
when the attorney’s repeated attempts to mislead warranted an actual suspension.
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Although the violations in the present case are less extreme than those in
Finneran, the penalty imposed in this case is less extreme than the indefinite
suspension imposed in Finneran.
{¶ 80} Having considered Stafford’s conduct, the applicable aggravating
and mitigating factors, and the sanctions imposed for similar misconduct, we
conclude that an actual 12-month suspension is the appropriate sanction for
Stafford’s ethical violations. Stafford’s license to practice law is suspended for
12 months. Costs are taxed to Stafford.
Judgment accordingly.
O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, and CUPP, JJ., concur.
__________________
O’DONNELL, J., concurring.
{¶ 81} I concur with the majority in this case but write separately to
address an assertion presented by respondent’s counsel during oral argument
regarding ex parte communications occurring in the Domestic Relations Division
of the Cuyahoga County Common Pleas Court. The following colloquy occurred
during oral argument regarding respondent’s conduct in obtaining an ex parte
order granting leave to amend a pleading in a case pending in that court:
Justice Lundberg Stratton: What about the allegations that
[Stafford] continued to obtain ex parte amendments and—and—
such without fully disclosing what was going on—that’s one of the
allegations—and certainly that might be a reason the judge doesn’t
complain, because the judge is signing ex parte orders.
Counsel for Stafford: And I think it’s been evidenced in
this case that it is in fact something that goes on in Cuyahoga
County Domestic Relations Court. In this instance, he filed a
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motion for leave. The judge signed it that day. That was the
judge’s decision to do or not to do. The motion to amend was not
ex parte, your honor.
Justice Lundberg Stratton: So because this is a practice,
it’s ethical? It’s allowed? It’s OK?
Counsel for Stafford: I think if both sides are engaging in it,
yes, but more importantly, several months later, Judge Celebrezze
said—
Justice Lundberg Stratton: Don’t you think maybe we have
a duty to say, “That’s it. I don’t care if the judge does it or not, it’s
not allowable, it’s not ethical, you’re ‘ex parte-ing,’ and this is
where it’s stopping?” Because the judges apparently aren’t
stopping it, according to you?
Counsel for Stafford: I think if that’s a decision this court
makes, then it’s certainly obviously the power of this court to do
that, but not retroactively to a litigant who is among thousands
who do the same thing.
(Emphasis added.)
{¶ 82} These statements of counsel appear to be incredible and very
troubling. If true, the judges of the court must examine their practices to ensure
that ex parte communications play no part in the way cases are litigated in their
respective courts. Counsel who are under the mistaken impression that this is
acceptable practice are on notice that such a practice subjects both the attorney
and judge to potential discipline.
Ex Parte Communications
{¶ 83} “An ex parte communication is one that excludes any party who is
legally entitled to be present or notified of the communication and given an
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opportunity to respond.” Garwin, Libby, Maher, and Rendelman, Annotated
Model Code of Judicial Conduct, 176 (2d Ed.2004). When exchanged between a
judicial officer and counsel, such communications violate the right of the
opposing party to receive a fair hearing, 2 Restatement of the Law 3d, The Law
Governing Lawyers, Section 113, comment (b) (2011), and thus are prohibited by
the Ohio Rules of Professional Conduct and the Ohio Code of Judicial Conduct.
{¶ 84} To the extent that counsel engage in unauthorized ex parte
communications or judges permit or condone them, they violate these rules.
Attorney Communications
{¶ 85} Prof.Cond.R. 3.5 prohibits an attorney from communicating ex
parte with “a judicial officer or other official as to the merits of the case during
the proceeding unless authorized to do so by law or court order.” See also 2
Restatement of the Law 3d, The Law Governing Lawyers, Section 113(1) (“A
lawyer may not knowingly communicate ex parte with a judicial officer before
whom a proceeding is pending concerning the matter, except as authorized by
law”). The comments to this section note that prohibited communications include
those between counsel and judges, counsel and the judge’s staff, and counsel and
any other judicial officer permitted to rule on evidence or argument about a
disputed matter, and ex parte communications that seek resolution of procedural
matters that may result in a “substantial tactical or strategic advantage.” Id. at
comment (c).
{¶ 86} We have routinely disciplined attorneys for participating in
unauthorized ex parte communications. In Disciplinary Counsel v. Tomlan, 118
Ohio St.3d 1, 2008-Ohio-1471, 885 N.E.2d 895, ¶ 31, we held that John Tomlan’s
ex parte communication with a judge that occurred away from the courthouse, in
which Tomlan asked the judge his thoughts on a pending probate matter and
expressed hope that the judge would decide the latest issue in his client’s favor,
violated DR 7-110(B) (prohibiting attorneys from communicating ex parte on the
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merits of a case with a judicial officer).1 In Stark Cty. Bar Assn. v. Arkow, 104
Ohio St.3d 265, 2004-Ohio-6512, 819 N.E.2d 284, ¶ 17, we held that Seth
Arkow’s communication with a judge, during which he presented a proposed
child-custody order for judicial action at a hearing he requested without opposing
counsel present and without providing notice reflecting the correct day of the
hearing, violated DR 7-110(B). Further, in Disciplinary Counsel v. Stuard, 121
Ohio St.3d 29, 2009-Ohio-261, 901 N.E.2d 788, ¶ 16, we held that assistant
prosecutor Christopher D. Becker’s ex parte communication with Judge John
Stuard, in which Becker prepared a sentencing entry in a capital case without
informing defense counsel, violated DR 1-102(A)(5) (prohibiting a lawyer from
engaging in conduct that is prejudicial to the administration of justice) and DR 7-
110(B). Also, in Disciplinary Counsel v. Baumgartner, 100 Ohio St.3d 41, 2003-
Ohio-4756, 796 N.E.2d 495, ¶ 10, we held that Elsebeth Baumgartner’s ex parte
communication with a juvenile-court judge before whom a client’s case was
pending, in which she accused government officials of corruption and conspiracy
and discussed the merits of a client’s case, violated DR 7-110(B), id. at ¶ 8, 10,
and in Cincinnati Bar Assn. v. Sauter, 96 Ohio St.3d 136, 2002-Ohio-3610, 772
N.E.2d 620, ¶ 5, 10, we held that judicial law clerk Susan M. Sauter’s ex parte
communication with counsel for a party in a pending case, in which she
recommended a strategy on appeal, violated DR 1–102(A)(5).
Judicial Communications
{¶ 87} Ex parte communications to judicial officers may be inaccurate or
incomplete and may “undermine a judge’s impartiality and the integrity of the
judicial process.” 33 Am. Judicature Soc. Ctr. for Judicial Ethics, Judicial
Conduct Reporter (Spring 2011). Jud.Cond.R. 2.9 prohibits a judge from
1. The Rules of Professional Conduct superseded these Disciplinary Rules of the Code of
Professional Responsibility on February 1, 2007.
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January Term, 2012
initiating, receiving, permitting, or considering ex parte communications
stemming from or directed to parties or their attorneys, except as follows:
(1) When circumstances require it, an ex parte
communication for scheduling, administrative, or emergency
purposes, that does not address substantive matters or issues on the
merits, is permitted, provided the judge reasonably believes that no
party will gain a procedural, substantive, or tactical advantage as a
result of the ex parte communication;
(2) A judge may obtain the advice of a disinterested expert
on the law applicable to a proceeding before the judge, if the judge
gives notice to the parties of the person consulted and the subject-
matter of the advice solicited, and affords the parties a reasonable
opportunity to object or respond to the advice received;
(3) A judge may consult with court staff and court officials
whose functions are to aid the judge in carrying out the judge’s
adjudicative responsibilities, or with other judges, provided the
judge makes reasonable efforts to avoid receiving factual
information that is not part of the record and does not abrogate the
responsibility personally to decide the matter;
(4) A judge, with the consent of the parties, may confer
separately with the parties and their lawyers in an effort to settle
matters pending before the judge;
(5) A judge may initiate, receive, permit, or consider an ex
parte communication when expressly authorized by law to do so;
(6) A judge may initiate, receive, permit, or consider an ex
parte communication when administering a specialized docket,
provided the judge reasonably believes that no party will gain a
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procedural, substantive, or tactical advantage while in the
specialized docket program as a result of the ex parte
communication.
{¶ 88} We have disciplined judges for participating in unauthorized ex
parte communications in several instances. In Stuard, 121 Ohio St.3d 29, 2009-
Ohio-261, 901 N.E.2d 788, ¶ 10, 16, we held that Judge Stuard’s ex parte
communications with a prosecutor, resulting in the prosecutor’s preparation of a
sentencing entry in a capital case without involving defense counsel, violated
Canon 2, 78 Ohio St.3d CLXVIII (requiring a judge to “respect and comply with
the law and * * * act at all times in a manner that promotes public confidence in
the integrity of the judiciary”) and Canon 3(B)(7) (prohibiting a judge from
initiating, receiving, permitting, or considering communications as to substantive
matters or issues on the merits made to the judge outside the presence of the
parties or their representatives concerning a pending or impending proceeding).2
In Disciplinary Counsel v. O’Neill, 103 Ohio St.3d 204, 2004-Ohio-4704, 815
N.E.2d 286, ¶ 20, we held that former Judge Deborah O’Neill’s ex parte
communications with a prosecutor following the reversal of a conviction she
entered, in which she encouraged the prosecutor to file an appeal, violated Canon
3(B)(7), and in Disciplinary Counsel v. Medley, 104 Ohio St.3d 251, 2004-Ohio-
6402, 819 N.E.2d 273, ¶ 10, 13, we held that former Judge William Medley’s
communications with a criminal defendant, in which the judge unilaterally
negotiated and accepted a plea bargain in the absence of the prosecutor and
defense counsel, violated Canon 1 (requiring a judge to uphold the integrity and
independence of the judiciary), 2, 3(B)(7), and 4 (requiring a judge to avoid
impropriety and the appearance of impropriety in all the judge's activities) and
2. These Canons were superseded by a new Code of Judicial Conduct on March 1, 2009.
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DR 1-102(A)(5). More recently, in Disciplinary Counsel v. Plough, 126 Ohio
St.3d 167, 2010-Ohio-3298, 931 N.E.2d 575, ¶ 10, we determined that former
judge John Plough’s communications with a county prosecutor without the
participation of defense counsel, in which the judge discussed his opposition to
the assistant prosecutor’s proposed plea agreement, violated Canon 3(B)(7).
{¶ 89} In the instant case, disciplinary counsel did not charge respondent
with a violation of the Ohio Rules of Professional Conduct in connection with an
ex parte communication. What is disturbing is the cavalier attitude toward ex
parte communication evidenced by counsel’s colloquy with a member of this
court and the incredible representation that thousands of lawyers do the same
thing.
{¶ 90} The Ohio Rules of Professional Conduct and the Ohio Code of
Judicial Conduct prohibit ex parte communications unless otherwise authorized
by the rules. Participating in unauthorized ex parte communications is prohibited
conduct subject to sanction. Our adversarial system of justice is dependent upon
attorneys who respect, understand, and adhere to the Ohio Rules of Professional
Conduct and upon impartial jurists who strictly adhere to the Code of Judicial
Conduct and who assertively resist ex parte engagements.
{¶ 91} The statements of counsel during the oral argument of this case, if
true, are troubling and raise concerns about the conduct of those engaged in the
practice of law in the Cuyahoga County Domestic Relations Court. Counsel and
judges are reminded of their obligation to adhere to the Ohio Rules of
Professional Conduct and the Ohio Code of Judicial Conduct in this regard and to
avoid the appearance of impropriety.
O’CONNOR, C.J., and LUNDBERG STRATTON, J., concur in the foregoing
opinion.
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SUPREME COURT OF OHIO
Jonathan E. Coughlan, Disciplinary Counsel, Lori J. Brown, Chief
Assistant Disciplinary Counsel, and Karen H. Osmond, Staff Attorney, for relator.
Stephen S. Crandall, for respondent.
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