Disciplinary Counsel v. Gallo

[Cite as Disciplinary Counsel v. Gallo, 131 Ohio St.3d 309, 2012-Ohio-758.]

DISCIPLINARY COUNSEL v. GALLO.

[Cite as Disciplinary Counsel v. Gallo, 131 Ohio St.3d 309, 2012-Ohio-758.]

Attorney misconduct, including recklessly making false statements concerning the

integrity of a judicial officer—Public reprimand.

(No. 2011-0756—Submitted September 21, 2011—Decided February 29, 2012.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 09-087.

__________________

Per Curiam.

{¶ 1} Respondent, Nicholas Matthew Gallo of Cleveland, Ohio, Attorney

Registration No. 0083226, was admitted to the practice of law in Ohio in 2008.

On December 7, 2009, relator, disciplinary counsel, charged Gallo with

professional misconduct based on allegations he had made against a judge in an

affidavit and in a motion to strike the judge’s motion to intervene in a domestic-

relations case. The Board of Commissioners on Grievances and Discipline found

that Gallo had recklessly made false statements impugning the integrity of a judge

and recommends that we publicly reprimand him for this misconduct.

{¶ 2} Gallo objects to the board’s findings of fact and conclusions of

law, arguing that due to his inexperience, he made an innocent mistake in

identifying a man standing outside the judge’s judicial suite as the judge himself

and that he had had a good-faith basis for the allegations he made against the

judge. Therefore, he urges the court to reject the board’s findings and dismiss the

complaint against him.

{¶ 3} The record clearly and convincingly demonstrates that Gallo failed

to take reasonable steps to verify that the person who he thought was staring at his

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client was in fact the judge he accused. Therefore, we adopt the board’s findings

of fact and conclusions of law and publicly reprimand Gallo for his misconduct.

Misconduct

{¶ 4} In January 2009, Gallo was hired as an associate attorney at

Stafford & Stafford Co., L.P.A., a small firm in Cleveland that handles mainly

domestic-relations cases. On June 3, 2009, he stepped in to handle a pretrial

conference representing Jeffery Rymers, whom the firm represented in a divorce

proceeding pending in the Lake County Court of Common Pleas. At that time,

Gallo had been practicing for only about six months, although he had been

admitted to the bar for just over one year. He had never met Mr. Rymers, Mrs.

Rymers, or Mrs. Rymers’s attorney, and he had never been to the Lake County

Courthouse. He was, however, aware that Mrs. Rymers was in a relationship with

Lake County Common Pleas Court Judge Eugene Lucci.

{¶ 5} While Gallo waited in the hall outside the domestic-relations

courtroom, which is just across the hall from Judge Lucci’s judicial suite, he saw

a man repeatedly exit Judge Lucci’s judicial suite, look around the hall, and then

re-enter the judicial suite. When Mr. Rymers appeared, Gallo met him and

walked down the hall with him to discuss the case. As they were talking, Mrs.

Rymers’s counsel approached them and handed Gallo a copy of Judge Lucci’s

motion to intervene in the Rymerses’ divorce proceeding. Gallo quickly read

through the document and phoned his boss, Joseph Stafford, to determine how he

should proceed. During that conversation, Gallo described the man he had seen in

the hallway and Stafford told him that the description “sound[ed] like Judge

Lucci.” After ending the phone call, Gallo resumed talking to Mr. Rymers.

Gallo’s back was to Judge Lucci’s judicial suite, and Mr. Rymer was facing him.

At one point, Mr. Rymers told him that Judge Lucci was standing outside the

judicial suite looking in their direction. Gallo turned around and saw that the

same man he had seen earlier was staring in their direction.

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{¶ 6} When Gallo returned to his office after the pretrial conference, he

prepared a memorandum for his supervisors summarizing the events that occurred

at the courthouse. Two weeks later, Gallo filed a response to Lucci’s motion to

intervene and argued that intervention was prohibited by Civ.R. 75(B). He also

argued that Lucci had violated Jud.Cond.R. 1.3 by “improperly using his position

as presiding Judge to advance his own personal interests, by attempting to insert

himself into an action in which he has no legitimate interest.” He further asserted

that Lucci had violated Prof.Cond.R. 3.3 by (1) failing to cite in his motion to

intervene controlling law (Civ.R. 75(B)) that Lucci knew was directly adverse to

his intervening in the divorce proceeding and (2) “engag[ing] in a pattern of

harassing and threatening conduct toward the Defendant, Jeffery G. Rymers, and

Joseph G. Stafford; and hav[ing] intimated on numerous occasions these threats,

based upon [Lucci’s] position as a presiding Judge in the Lake County Court of

Common Pleas.”

{¶ 7} Gallo supported these allegations with affidavits from himself and

Mr. Rymers attesting that on the day of the pretrial hearing, they had seen Judge

Lucci standing in the hallway outside his judicial suite, staring at Mr. Rymers.

Mr. Rymers further attested that he had felt intimidated and threatened by this

conduct. Gallo also submitted an affidavit from Stafford addressing Judge

Lucci’s allegation that Stafford’s representing Mr. Rymers was a conflict of

interest because Lucci had consulted Stafford regarding his divorce. Gallo signed

and filed the opposition brief on June 17, 2009. He resigned his position at

Stafford’s firm approximately one week later for reasons unrelated to the Rymers

case.

{¶ 8} Judge Lucci filed a grievance with relator, stating that he had been

falsely accused of abusing his office and that he had not been in the hallway while

Gallo and Mr. Rymers were at the courthouse. He alleged that he had “witnesses

and irrefutable, conclusive evidentiary proof” that the allegations in Gallo’s and

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Mr. Rymers’s affidavits were not true. Gallo stood by his allegations until relator

filed a formal complaint and assistant disciplinary counsel advised him that she

had obtained video recordings of the activity in the Lake County Courthouse from

June 3, 2009. After reviewing the video recordings, Gallo moved to withdraw his

affidavit, stating that the video revealed that the person he had believed to be

Judge Lucci was not, in fact, the judge, but rather the judge’s bailiff.

{¶ 9} At the disciplinary hearing, the panel heard testimony from Mr.

and Mrs. Rymers, Judge Lucci and his bailiff, Stafford, Gallo, and others. The

panel also viewed portions of the video recordings from all four cameras that

record activity in the pertinent hallway of the Lake County Courthouse. The

evidence revealed that Judge Lucci had not been in the hallway during the time in

question and that the man whom Gallo and Rymers had seen in the hallway was

the judge’s bailiff.

{¶ 10} Gallo testified that while he was standing approximately 70 feet

away from the door to Judge Lucci’s judicial suite talking to Mr. Rymers, he saw

the man whom he then believed to be Lucci standing outside the judicial suite

staring at him and Mr. Rymers. He stated that Rymers appeared very

uncomfortable—his face turned bright red and he started shuffling his feet. Gallo

admitted that he had never asked Mr. Rymers whether he had met Judge Lucci

and that other than the information he had obtained from Rymers and Stafford, the

only effort he had made to determine the identity of the man he had observed in

the hall was to view Judge Lucci’s picture on the Internet. He stated that he

believed the picture to be consistent with the man he had observed in the

courthouse that morning.

{¶ 11} The board found that Gallo had not knowingly made false

statements and that he had been under considerable pressure from his employer

when he filed the documents containing the accusations. However, it concluded

that his conduct was not blameless. Rather, the board found that Gallo had acted

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recklessly by failing to independently verify the identity of the man he had

observed in the hallway before raising such serious allegations against Judge

Lucci. Based upon these findings, the board concluded that Gallo had violated

Prof.Cond.R. 8.2(a) (prohibiting a lawyer from knowingly or recklessly making

false statements concerning the integrity of a judicial officer) and 8.4(d)

(prohibiting a lawyer from engaging in conduct that is prejudicial to the

administration of justice). Citing insufficient evidence, the board recommends

that we dismiss alleged violations of Prof.Cond.R. 8.4(c) (prohibiting a lawyer

from engaging in conduct involving dishonesty, fraud, deceit, or

misrepresentation) and 8.4(h) (prohibiting a lawyer from engaging in conduct that

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

Recommended Sanction

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

relevant 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. In making a final

determination, we also 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.

{¶ 13} The parties did not stipulate to any aggravating or mitigating

factors in this case, and the board found that no aggravating factors are present.

Mitigating factors found by the board include the absence of a prior disciplinary

record, the absence of a selfish or dishonest motive, Gallo’s timely withdrawal of

his affidavit after viewing the videotapes and discovering his mistake, and his

cooperative attitude throughout the disciplinary proceeding. BCGD Proc.Reg. 10

(B)(2)(a), (b), (c), and (d). While Gallo did not submit any evidence of his

character or reputation, the board observed that Stafford and another associate

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from his firm spoke positively of Gallo throughout the hearing. See BCGD

Proc.Reg. 10(B)(2)(e).

{¶ 14} The board also considered the fact that Gallo had voluntarily

stopped practicing law as a mitigating factor, even though his departure from the

practice was largely due to his inability to find work in the legal field. See

BCGD Proc.Reg. 10(B)(2)(f). Moreover, the board concluded that Gallo’s

inexperience—he had been a member of the bar for only a brief period prior to his

misconduct—was also a mitigating factor. See BCGD Proc.Reg. 10(B). See also

Cincinnati Bar Assn. v. Mullaney, 119 Ohio St.3d 412, 2008-Ohio-4541, 894

N.E.2d 1210, ¶ 40-42 (considering an attorney’s recent admission to the practice

of law to be a mitigating factor when a more experienced attorney at his firm had

established the practices that contributed to his misconduct).

{¶ 15} At the hearing, Gallo urged the panel to either dismiss the

complaint against him or recommend a public reprimand for his conduct. Citing

Disciplinary Counsel v. Gardner, 99 Ohio St.3d 416, 2003-Ohio-4048, 793

N.E.2d 425, relator sought a six-month suspension from the practice of law.

{¶ 16} The board observed that in Gardner, we imposed a six-month

suspension from the practice of law on an attorney who, in a motion for

reconsideration, had waged a vitriolic attack against the appellate court that had

affirmed his client’s criminal conviction, making unfounded accusations that the

court was biased and corrupt. Id. at ¶ 2-9, 33-34. But the board found that

Gallo’s conduct was less egregious than Gardner’s because Gallo did not impugn

the integrity of the judicial process or attack the impartiality of a judge presiding

over a case in which he served as counsel. Finding no evidence that Gallo is

either unfit to practice law or that he is unworthy of the trust and confidence

essential to an attorney-client relationship, and finding that he has accepted full

responsibility for his conduct, the board concluded that he should not be

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suspended from the practice of law, but should be publicly reprimanded for his

misconduct.

Gallo’s Objections

{¶ 17} Gallo objects to the board’s findings of misconduct, arguing that

neither his mistaken identification of the bailiff as Judge Lucci nor his allegation

that Judge Lucci had engaged in a pattern of harassing and threatening conduct

was reckless. With regard to his mistaken identification, he asserts that he had no

reason to believe that Mr. Rymers had not previously met Judge Lucci or to

question Stafford’s statement over the phone that the man Gallo described in the

hallway at the courthouse was Judge Lucci.

{¶ 18} Gallo had not been involved in the Rymerses’ divorce prior to his

attendance at the June 3, 2009 pretrial hearing, and he met Mr. Rymers for the

first time that morning. And yet he accepted Mr. Rymers’s identification of the

man in the hallway without any further inquiry. He relied upon Mr. Rymers’s

identification, Stafford’s telephonic identification, and his own determination that

the man he had seen in the courthouse matched an online photograph of Lucci as

conclusive proof that the man in the hallway was Lucci.

{¶ 19} In Gardner, 99 Ohio St.3d 416, 2003-Ohio-4048, 793 N.E.2d 425,

¶ 26, we adopted an objective standard to determine whether an attorney has made

a statement about a judicial officer with knowledge or reckless disregard of its

falsity. Under that standard, we consider the nature of the statements and the

context in which they were made and determine whether the attorney had a

reasonable factual basis for making them. Id.

{¶ 20} Gallo made no effort to confirm the man’s identity with anyone

working at the courthouse. Nor did he ask Mr. Rymers, whom he had just met,

about his familiarity with Judge Lucci. Instead, he relied upon the identification

by a client he barely knew, a telephonic identification by his employer, and his

own determination that the man he had seen in the courthouse matched an online

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photograph of Lucci to levy serious charges of professional misconduct against a

sitting judge. Furthermore, he made those allegations in a public filing in a

domestic-relations court instead of in a confidential grievance submitted to

disciplinary counsel or a certified grievance committee in accordance with

Gov.Bar R. IV(2) (requiring a lawyer to maintain a respectful attitude toward the

courts and to submit any serious complaints against judicial officers to the proper

authorities) and Prof.Cond.R. 8.3(b) (requiring a lawyer who possesses

unprivileged knowledge that a judge has violated the rules of professional or

judicial conduct to inform the appropriate authority). Given the evidence that

Gallo relied on and the minimal effort that he undertook to confirm the identity of

the man in the hallway before making serious allegations against Judge Lucci, we

do not find that he had a reasonable factual basis for his statements. We therefore

find by clear and convincing evidence that Gallo engaged in conduct that is

prejudicial to the administration of justice by recklessly making false statements

impugning the integrity of Judge Lucci in violation of Prof.Cond.R. 8.2(a) and

8.4(d).

{¶ 21} Accordingly, we overrule Gallo’s objections, adopt the board’s

findings of fact and conclusions of law in their entirety, and hereby dismiss the

alleged violations of Prof.Cond.R. 8.4(c) and 8.4(h) as being unsupported by the

evidence. For the reasons set forth in the board’s report, we agree that the proper

sanction for Gallo’s misconduct is a public reprimand.

{¶ 22} Accordingly, Nicholas Matthew Gallo is hereby publicly

reprimanded. Costs are taxed to Gallo.

Judgment accordingly.

O’CONNOR, C.J., and PFEIFER, LANZINGER, CUPP, and MCGEE BROWN,

JJ., concur.

LUNDBERG STRATTON and O’DONNELL, JJ., dissent.

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LUNDBERG STRATTON, J., dissenting.

{¶ 23} The majority concludes that Gallo failed to take reasonable steps to

verify that the person who he thought was staring at his client was in fact the

judge he accused. I disagree. For the reasons that follow, I dissent from the

majority’s decision to publicly reprimand Gallo for his conduct.

{¶ 24} Gallo had been practicing law for less than a year before he was

called in to handle the pretrial conference representing Jeffery Rymers. Gallo had

never seen or talked to Judge Lucci or his bailiff, had never been in Judge Lucci’s

courtroom or chambers, and had never even met the Stafford firm’s own client,

Mr. Rymers, until the day in question.

{¶ 25} The man who was mistaken for Judge Lucci had gone into and out

of Judge Lucci’s chambers multiple times that morning and had been seen staring

in the direction of Gallo and his client, and Mr. Rymers mistakenly confirmed that

the man was Judge Lucci. Gallo was aware that Judge Lucci was involved in a

relationship with Mr. Rymers’s wife and that she and the Rymerses’ children

were living in the judge’s home. It was reasonable for Gallo to believe that his

client would recognize Judge Lucci.

{¶ 26} But Gallo did not rely solely on the identification by his client

when he prepared his affidavit accusing the judge. He also relied on the

identification made by one of the partners in the Stafford firm, who confirmed

that the man described by Gallo was Judge Lucci. In addition, Gallo compared

the judge’s official photograph on the Lake County Common Pleas Court website

to his memory of the man he had seen in the hallway. In my view, Gallo took

reasonable steps to verify the identity of the person in question.

{¶ 27} Further, I would argue that the circumstances in this case are

unusual. The more typical situation in these types of cases is that an attorney

attacks the integrity of a judge presiding over a case in which the attorney is

involved. In this case, this judge was personally involved in the divorce case that

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Gallo was handling, even to the point of filing a motion to intervene in the

proceeding. Thus, it was reasonable for Gallo to make the assumption that his

client could identify the man in the hallway. And because the case does involve

such unusual facts, it is not a situation that is likely to occur again in the future.

{¶ 28} In my view, Gallo made a simple, good-faith mistake—a mistake

that was reasonable, not reckless. Moreover, Gallo immediately moved to

withdraw his affidavit when he discovered his mistake, and he left his position

with the firm shortly thereafter. I dissent from the majority’s decision to publicly

reprimand him. I would dismiss.

O’DONNELL, J., concurs in the foregoing dissenting opinion.

__________________

Jonathan E. Coughlan, Disciplinary Counsel, Lori J. Brown, Chief

Assistant Disciplinary Counsel, and Karen H. Osmond, for relator.

Law Offices of Brent L. English and Brent L. English, for respondent.

______________________

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