Disciplinary Counsel v. Proctor

[Cite as Disciplinary Counsel v. Proctor, 131 Ohio St.3d 215, 2012-Ohio-684.]

DISCIPLINARY COUNSEL v. PROCTOR.

[Cite as Disciplinary Counsel v. Proctor, 131 Ohio St.3d 215, 2012-Ohio-684.]

Attorney misconduct, including knowingly or recklessly making false statements

concerning the integrity of a judicial officer—Six-month suspension.

(No. 2011-0295—Submitted September 6, 2011—Decided February 23, 2012.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 09-059.

__________________

Per Curiam.

{¶ 1} Respondent, Philip Lucas Proctor of Newark, Ohio, Attorney

Registration No. 0041956, was admitted to the practice of law in Ohio in 1989.

{¶ 2} In a complaint filed on August 17, 2009, relator, disciplinary

counsel, alleged that Proctor had violated multiple provisions of the Ohio Rules of

Professional Conduct and the Supreme Court Rules for the Government of the Bar

in Ohio by making allegations of impropriety against his opposing counsel and

the trial judge either while knowing the allegations to be false or with reckless

disregard of their truth or falsity.

{¶ 3} The parties submitted stipulated exhibits and findings of fact in

which Proctor admitted that he had engaged in undignified or discourteous

conduct that was degrading to a tribunal, had made statements concerning the

qualifications or integrity of a judicial officer either while knowing them to be

false or with reckless disregard of their truth or falsity, and had failed to maintain

a respectful attitude toward the courts. Relator withdrew three alleged rule

violations, and the parties agreed that a six-month stayed suspension was the

appropriate sanction for Proctor’s misconduct.

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{¶ 4} The panel and board adopted many of the parties’ stipulated findings

of fact and all of the stipulated findings of misconduct. Although they adopted

the stipulated mitigating factors, they also found that several aggravating factors

were present. Citing those aggravating factors and Disciplinary Counsel v.

Gardner, 99 Ohio St.3d 416, 2003-Ohio-4048, 793 N.E.2d 425, the panel and

board recommend that Proctor serve an actual six-month suspension from the

practice of law in Ohio.

{¶ 5} Proctor objects to the board’s findings of fact and recommended

sanction, arguing that the two motions to dismiss that he filed should have been

considered by the entire board and granted, and that Gardner does not mandate

the imposition of an actual suspension under the facts of this case. We overrule

Proctor’s objections and adopt the board’s findings of fact and misconduct and its

recommended sanction.

Misconduct

{¶ 6} In 2002, Proctor filed a lawsuit on behalf of Julie Peterman in the

Delaware County Court of Common Pleas. Proctor withdrew as counsel in 2003,

and the following month, Peterman dismissed the action without prejudice.

Thereafter, counsel for the defendants in that action moved the court for attorney

fees. Judge W. Duncan Whitney granted the motion in 2005 and ordered Proctor

and Peterman, jointly and severally, to pay the defendants $31,995.90. Proctor

paid approximately $26,000 of that judgment.

{¶ 7} Proctor moved the court to vacate the judgment pursuant to Civ.R.

60(B), and the trial judge recused himself and transferred the case to Judge

Everett Krueger, who overruled the motion. Proctor’s request for findings of fact

and conclusions of law was denied. In a supplemental request regarding his

motion for findings of fact and conclusions of law filed on October 18, 2007,

Proctor alleged that Judge Whitney harbored a bias against him and had engaged

in ex parte communications with opposing counsel in the case and then had “gone

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to great effort to cover this up and/or deny that these things happened.” Proctor

reiterated these accusations in his appellate brief when he challenged the denial of

his motion to vacate and for relief from judgment. When Proctor made these

allegations, he did not have a reasonable belief that they were true, and therefore

he has stipulated that the allegations were recklessly made.

{¶ 8} Based upon these findings, the panel and board found that Proctor

had violated Prof.Cond.R. 3.5(a)(6) (prohibiting a lawyer from engaging in

undignified or discourteous conduct that is degrading to a tribunal) and 8.2(a)

(prohibiting a lawyer from knowingly or recklessly making false statements

concerning the integrity of a judicial officer) and Gov.Bar R. IV(2) (requiring a

lawyer to maintain a respectful attitude toward the courts).

Recommended Sanction

{¶ 9} In recommending a sanction, the panel and board considered the

aggravating and mitigating factors listed in BCGD Proc.Reg. 10. See Stark Cty.

Bar Assn. v. Buttacavoli, 96 Ohio St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818,

¶ 16.

{¶ 10} The parties have stipulated to the following mitigating factors:

Proctor does not have a prior disciplinary record, he fully and freely disclosed

information and cooperated with the disciplinary proceedings, and he paid

$26,000 pursuant to the judgment for attorney fees in the underlying litigation.

See BCGD Proc.Reg. 10(B)(2)(a), (d), and (f). They also stipulated that the

appropriate sanction for Proctor’s misconduct is a six-month stayed suspension.

{¶ 11} The board adopted the parties’ stipulations regarding mitigation but

pointed out that Proctor’s $26,000 sanction was the impetus for, rather than the

result of, the conduct charged in this case. It also found that Proctor’s pattern of

misconduct involving multiple offenses and his continued claims that he had a

reasonable belief to support the allegations he had made against Judge Whitney,

despite his stipulations to the contrary, were aggravating factors. See BCGD

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Proc.Reg. 10(B)(1)(c), (d), and (g). Citing these aggravating factors and the six-

month actual suspension we imposed for comparable misconduct in Disciplinary

Counsel v. Gardner, 99 Ohio St.3d 416, 2003-Ohio-4048, 793 N.E.2d 425, the

board concluded that a six-month actual suspension was the appropriate sanction

for Proctor’s misconduct.

Proctor’s Objections

{¶ 12} Proctor objects to the board’s findings of fact and misconduct, as

well as its recommended sanction. In his first objection, he argues that the full

board should have considered his two motions to dismiss relator’s complaint after

they were overruled by the panel chair. In his first motion to dismiss, Proctor

argued that he should not be punished for the allegations he made against Judge

Whitney, because Prof.Cond.R. 8.3 and 3.3 required him to report potential

judicial misconduct to an appropriate authority. He renews this argument in his

second objection and urges us to adopt the judgmental-immunity doctrine to

protect him from the consequences of what he claims was required reporting of

judicial misconduct. And in his second motion to dismiss, Proctor argued that

because he had consulted with an assistant disciplinary counsel prior to making

the allegations against Judge Whitney, relator’s continued prosecution of the

complaint violated his right to due process. Proctor renews this argument in his

third objection.

{¶ 13} At his disciplinary hearing and again at oral argument, Proctor

denied having any intent to disavow the stipulations he entered in this case.

Indeed, during oral argument, Proctor’s counsel admitted that the single issue

before this court is the board’s rejection of the stipulated sanction of a six-month

stayed suspension in favor of a six-month actual suspension. Therefore, we

decline to address Proctor’s first three objections to the board’s report, which

would require this court to disregard Proctor’s stipulations of fact and misconduct

and consider whether he had a reasonable belief that the statements in his

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supplemental request regarding his motion for findings of fact and conclusions of

law and in his appellate brief were true. Furthermore, we adopt the board’s

findings of fact and misconduct, which are based upon the parties’ stipulations

and are amply supported by the record.

{¶ 14} In his fourth objection, Proctor argues that his conduct is less

egregious than that of Gardner and that this court should therefore reject the

board’s recommendation of an actual suspension from the practice of law in favor

of the parties’ stipulated sanction of a six-month stayed suspension.

{¶ 15} In Gardner, we recognized that ethical rules prohibiting false

statements impugning the integrity of judges are necessary “ ‘to preserve public

confidence in the fairness and impartiality of our system of justice.’ ” 99 Ohio

St.3d 416, 2003-Ohio-4048, 793 N.E.2d 425, ¶ 29, quoting Standing Commt. on

Discipline of the United States Dist. Court for the Cent. Dist. of California v.

Yagman, 55 F.3d 1430, 1437 (9th Cir.1995). To further that compelling interest,

we adopted an objective standard to determine whether a lawyer’s statement

about a judicial officer was made with knowledge of or in reckless disregard of its

falsity, and we therefore held that “an attorney may be sanctioned for making

accusations of judicial impropriety that a reasonable attorney would believe are

false.” Gardner at ¶ 31.

{¶ 16} Gardner’s misconduct consisted of a diatribe in a motion for

reconsideration filed with the appellate court that had affirmed his client’s

criminal conviction. Gardner at ¶ 3. In that document, Gardner made reckless

and unfounded accusations that the court was biased and corrupt. Id. at ¶ 33-34.

Gardner had no record of prior discipline, apologized for the manner in which he

had expressed his frustration with the appellate court’s ruling, and acknowledged

that his motion was neither appropriate nor professional. Id. at ¶ 11.

{¶ 17} The parties recommended that Gardner be publicly reprimanded for

his misconduct, and the panel adopted that recommendation. Id. at ¶ 12. The

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board, however, citing Gardner’s “ ‘outrageous behavior toward a tribunal,’ ”

recommended a six-month stayed suspension. Id. But stating that “[u]nfounded

attacks against the integrity of the judiciary require an actual suspension from the

practice of law,” we imposed a six-month actual suspension from the practice of

law. Id. at ¶ 36.

{¶ 18} We have similarly held that attorneys who engage in a course of

conduct involving dishonesty, fraud, deceit, or misrepresentation will be actually

suspended from the practice of law for an appropriate period of time.

Disciplinary Counsel v. Fowerbaugh, 74 Ohio St.3d 187, 191, 658 N.E.2d 237

(1995). But we have treated our pronouncement in Fowerbaugh as a presumptive

sanction and have not hesitated to impose lesser sanctions in the presence of

significant mitigating evidence. See, e.g., Disciplinary Counsel v. Carroll, 106

Ohio St.3d 84, 2005-Ohio-3805, 831 N.E.2d 1000, ¶ 13; Dayton Bar Assn. v.

Kinney, 89 Ohio St.3d 77, 728 N.E.2d 1052 (2000). And despite our

proclamation that “[u]nfounded attacks against the integrity of the judiciary

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, we have previously imposed

lesser sanctions for attorneys who have knowingly or recklessly impugned the

integrity of the judiciary when sufficient mitigating factors are present. See, e.g.,

Akron Bar Assn. v. DiCato, 130 Ohio St.3d 394, 2011-Ohio-5796, 958 N.E.2d

938 (six-month stayed suspension imposed on an attorney who made a false

statement impugning the integrity of a judge during a telephone conversation with

the judge’s bailiff, when mitigating factors included the absence of a prior

disciplinary record and cooperation with the disciplinary investigation, as well as

the attorney’s apology and guilty plea to related contempt charges).

{¶ 19} In this case, however, the board found that the two aggravating

factors—Proctor’s making recklessly false statements impugning the integrity of a

judicial officer in at least two court filings and his refusal to acknowledge the

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wrongful nature of his conduct, as demonstrated by his repeated efforts to

undermine his own stipulations with claims that he had reason to believe that the

allegations were true—outweighed the mitigating factors. We agree and find that

Proctor’s conduct is comparable to that in Gardner and more serious than that in

DiCato. Therefore, we adopt the board’s recommended sanction of a six-month

suspension from the practice of law.

{¶ 20} Accordingly, Philip Lucas Proctor is suspended from the practice

of law in Ohio for six months. Costs are taxed to Proctor.

Judgment accordingly.

O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, CUPP, and

MCGEE BROWN, JJ., concur.

LUNDBERG STRATTON, J., dissents and would impose a 12-month stayed

suspension.

__________________

Jonathan E. Coughlan, Disciplinary Counsel, and Stacy Solochek

Beckman, Assistant Disciplinary Counsel, for relator.

James S. Adray, for respondent.

______________________

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