Disciplinary Counsel v. Frost

[Cite as Disciplinary Counsel v. Frost, 122 Ohio St.3d 219, 2009-Ohio-2870.]

DISCIPLINARY COUNSEL v. FROST.

[Cite as Disciplinary Counsel v. Frost, 122 Ohio St.3d 219, 2009-Ohio-2870.]

Attorney misconduct, including engaging in conduct involving dishonesty, fraud,

deceit, or misrepresentation, engaging in conduct prejudicial to the

administration of justice, and knowingly making false accusations against

a judge — Indefinite suspension.

(No. 2009-0069 — Submitted March 25, 2009 — Decided June 24, 2009.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 07-079.

__________________

Per Curiam.

{¶ 1} Respondent, Merrie Maurine Frost of Cleveland Heights, Ohio,

Attorney Registration No. 0059642, was admitted to the practice of law in Ohio in

1992.

{¶ 2} The Board of Commissioners on Grievances and Discipline

recommends that we indefinitely suspend respondent’s license to practice, based

on findings that she filed in court false accusations of bias and corruption against

judges and a county prosecutor and also persisted in pursuing a baseless

defamation suit. We accept the board’s findings and agree that the acts

constituted professional misconduct as found by the board and that an indefinite

suspension of respondent’s license is appropriate. Moreover, to safeguard the

public, we order as one condition of reinstatement that respondent provide

medical proof that she is mentally fit to return to the competent, professional, and

ethical practice of law.

{¶ 3} Respondent, Disciplinary Counsel, charged respondent with three

counts of professional misconduct, alleging multiple violations of the Disciplinary

SUPREME COURT OF OHIO

Rules of the former Code of Professional Responsibility and Gov.Bar R. IV(2)

(requiring lawyers to maintain a respectful attitude toward the courts). A panel of

board members heard the case, made findings of fact and conclusions of law, and

recommended the indefinite suspension of respondent’s license. The board

adopted the panel’s findings of misconduct and recommendation.

{¶ 4} Respondent has objected to the board’s report, arguing that an

indefinite suspension from practice is too harsh in view of her heretofore

unblemished professional record. And rather than attack the board’s findings of

misconduct as unfounded, she asserts that charges she made alleging corruption

and bias are constitutionally protected and impervious to the disciplinary process.

We reject both arguments.

Misconduct

Count One

{¶ 5} Respondent engaged in professional misconduct first by falsely

accusing several Cuyahoga County Common Pleas Court judges and the county

prosecutor of corruption and bias in the execution of their official duties. Because

respondent had no reasonable basis for leveling these charges, the board found her

in violation of the following ethical standards: DR 1-102(A)(4) (prohibiting

conduct involving dishonesty, fraud, deceit, or misrepresentation), 1-102(A)(5)

(prohibiting conduct that is prejudicial to the administration of justice), 1-

102(A)(6) (prohibiting conduct that adversely reflects on the lawyer’s fitness to

practice law), 7-102(A)(1) (prohibiting a lawyer from taking action on behalf of a

client that the lawyer knows or should know would serve merely to harass or

maliciously injure another), 7-106(C)(1) (prohibiting a lawyer appearing in a

professional capacity before a tribunal from making an assertion that the lawyer

“has no reasonable basis to believe is relevant to the case or that will not be

supported by admissible evidence”), and 8-102(B) (prohibiting a lawyer from

2

January Term, 2009

knowingly making false accusations against a judge) and Gov.Bar R. IV(2). We

accept these findings of misconduct.

{¶ 6} In 2003, respondent filed race-discrimination and related claims

against the Cuyahoga County Board of Commissioners, among other defendants,

on behalf of Jennifer Simmons-Means and Norman Rice as employees of the

Cuyahoga County Department of Justice Affairs (the “Simmons-Means” and

“Rice” cases). The Simmons-Means case was assigned to Judge Timothy

McCormick; Judge William J. Coyne presided in the Rice case.

{¶ 7} In November 2004, Judge Coyne granted summary judgment

against Rice, and approximately one year later, the Eighth District Court of

Appeals affirmed. In December 2004, defendants in the Simmons-Means case

moved for summary judgment, and in October 2005, Judge McCormick granted

that motion. Approximately one year later, Judge McCormick’s decision was also

affirmed.

{¶ 8} Respondent did not initially file a response to the motions for

summary judgment in the Simmons-Means case. On January 12, 2005, she

instead filed an affidavit of disqualification with this court, seeking to remove

Judge McCormick, who had by that time presided in the case for nearly two years.

Relator aptly characterized the affidavit as follows: “[A] rambling narration that is

for the most part, entirely irrelevant to Judge McCormick or Simmons-Means.

Respondent used the affidavit solely as a platform to broadcast her false

allegations against * * * judges and public officials.”

{¶ 9} Respondent claimed to be “competent to testify to the facts” and to

have “first hand knowledge of the facts alleged” in the affidavit of

disqualification. From respondent’s testimony at the panel hearing, however, it is

clear that she had nothing beyond conjecture, rumor, and innuendo to support her

charges. Respondent’s affidavit alleged the following:

3

SUPREME COURT OF OHIO

{¶ 10} 1. The Cuyahoga County prosecutor had information that

government employees were engaging in race discrimination and illegal conduct,

including crimes of forgery, fraud, and falsification of public documents, yet

failed to investigate.

{¶ 11} 2. Judge McCormick denied Simmons-Means due process with his

“outright blatant special treatment for the defendants.”

{¶ 12} 3. Judge Coyne, in the Rice case, had an “an ex parte

communication with defense counsel regarding a discovery dispute” and then

dismissed the action for political reasons and refused to reduce his reasoning to

writing. (At the panel hearing, defense counsel in the Rice case specifically

denied any ex parte communication, and respondent conceded that she had never

requested findings of fact and conclusions of law from the judge.)

{¶ 13} 4. Judge McCormick showed bias for the defense in the Simmons-

Means case by granting a six-month stay of proceedings. Respondent claimed

that “political connections” motivated the judge and that his ruling “conveniently

slowed down the case so that nothing could be decided until after the November

election.” (Evidence presented at the hearing, however, established that Judge

McCormick had granted the stay to allow one defendant to care for her terminally

ill spouse.)

{¶ 14} 5. Judge McCormick was “biased and intend[ed] to rule against”

Simmons-Means “regardless of what evidence [she] can provide to support her

case.” (Evidence presented at hearing substantiated that respondent leveled this

charge because Judge McCormick had asked her to try to obtain the discovery she

needed from county commissioners first through written requests and then decide

whether she still needed to conduct depositions of the commissioners.)

{¶ 15} 6. In an unrelated race-discrimination case, Judge Mary Jane Boyle

delayed in ruling on respondent’s motion for attorney fees because she was

“afraid” that her ruling would cost a certain “politically connected person”

4

January Term, 2009

thousands of dollars. (Though respondent purportedly received this information

from a court employee, she presented no witness or other evidence at the panel

hearing to corroborate her claim.)

{¶ 16} “A judge is presumed to follow the law and not to be biased, and

the appearance of bias or prejudice must be compelling to overcome these

presumptions.” In re Disqualification of George, 100 Ohio St.3d 1241, 2003-

Ohio-5489, 798 N.E.2d 23, ¶ 5. Respondent failed to carry this burden, and on

January 28, 2005, her request for Judge McCormick’s disqualification was

denied.

{¶ 17} Based on the foregoing, we find the requisite clear and convincing

proof that respondent had no justification for accusing Judges McCormick,

Coyne, and Boyle and the county prosecutor of bias and corruption.

Count Two

{¶ 18} Respondent also engaged in professional misconduct by repeatedly

leveling unfounded accusations of racial bias and other impropriety against a

federal district court judge. Because respondent had no reasonable basis for these

charges, the board found that she had breached numerous ethical standards: DR 1-

102(A)(4), 1-102(A)(5), 1-102(A)(6), 7-102(A)(1), 7-106(C)(1), and 8-102(B)

and Gov.Bar R. IV(2). We accept these findings of misconduct.

{¶ 19} Respondent leveled her accusations against the federal judge after

he granted summary judgment against her clients (14 African-Americans) in a

race-discrimination case against administrators and supervisors employed by the

Cuyahoga County Juvenile Court. She had filed the discrimination case in the

United States District Court for the Northern District of Ohio, and in early 2003,

the case came before Judge John R. Adams. In January 2005, after granting

summary judgment against 11 plaintiffs, Judge Adams held a status conference

and encouraged the parties to discuss settlement, but no settlement could be

5

SUPREME COURT OF OHIO

reached. In March 2005, Judge Adams granted summary judgment against the

remaining plaintiffs.

{¶ 20} Respondent then filed a series of grievances against Judge Adams

in 2005 with the chief judge of the United States Court of Appeals for the Sixth

Circuit, all of which were dismissed for lack of merit. In the first two, she

asserted that Judge Adams’s adverse rulings and remarks during the status

conference showed racial bias and favoritism. In the third grievance, she claimed

that the judge had obtained nomination to his judicial seat through improper

financial contributions to prominent politicians. Testifying before the hearing

panel, Judge Adams firmly denied any prejudice or other impropriety. He also

noted that all of his rulings on the motions for summary judgment had been

affirmed on appeal.

{¶ 21} Respondent also filed a motion to disqualify and an affidavit of

prejudice in 2005, asking Judge Adams to step down. Her motion again leveled

unfounded charges that the judge had made racist remarks. Judge Adams

declined to recuse himself, insisting that “[t]he Court did not and would not make

such statements.”

{¶ 22} After the denial of her motion to disqualify, respondent sought a

writ of mandamus in the Sixth Circuit, seeking an order of removal. In July 2005,

the court of appeals denied the motion.

{¶ 23} In 2006, respondent moved to vacate the order denying the motion

to disqualify. In support, she falsely claimed that Judge Adams knew he was

under investigation by the FBI for racist conduct and criminal activity and that an

agent had “sworn out a complaint” against him based on her charges. Before the

hearing panel, the agent who had allegedly filed the complaint refuted

respondent’s claim, explaining that he had merely received and forwarded the

respondent’s accusations for investigative review. Another agent later determined

that the information did not warrant any investigation.

6

January Term, 2009

{¶ 24} Respondent never succeeded in obtaining Judge Adams’s removal.

Based on the foregoing, we find the requisite clear and convincing proof showing

that respondent had no justification for accusing Judge Adams of racial bias or

other impropriety.

Count Three

{¶ 25} Respondent also engaged in professional misconduct by filing a

baseless defamation suit against two lawyers who were her opposing counsel in a

sexual-harassment action. Because respondent had no reasonable basis for the

suit, the board found her in violation of DR 1-102(A)(4), 1-102(A)(5), 1-

102(A)(6), 7-102(A)(1), 7-102(A)(2) (prohibiting a lawyer from knowingly

advancing a claim or defense that is unwarranted under existing law, with an

exception not relevant here), and 7-106(C)(1). We accept these findings of

misconduct.

{¶ 26} Respondent filed the sexual-harassment case in August 2004

against her client’s employer and five of its employees in the Lake County

Common Pleas Court. The common pleas court granted the employer’s motion

for a protective order, forbidding the parties or their counsel to comment publicly.

{¶ 27} In mid-August 2005, respondent sent a threatening e-mail to two

defense counsel in the case, accusing them of commenting unfavorably about her

client in public. She warned that a witness had overheard one or both of them

talking about the case and that their statements possibly violated the protective

order. When the two lawyers replied that they did not know what respondent was

talking about, she sent a second threatening e-mail.

{¶ 28} By the end of August, respondent had filed a defamation suit in the

Lake County Common Pleas Court against the two attorneys, claiming that they

had made “numerous slanderous remarks about plaintiff including, but not limited

to, ‘plaintiff was crazy,’ ‘plaintiff was out of her head,’ ‘plaintiff was a liar.’ ”

Upon learning of the lawsuit, the witness who had allegedly overheard these

7

SUPREME COURT OF OHIO

remarks called respondent and insisted that she dismiss the case immediately. He

told her that she had completely misconstrued what were merely casual comments

regarding rumors he had heard about how the defense intended to discredit her

client. Respondent did not dismiss the case.

{¶ 29} The witness appeared in November 2005 pursuant to subpoena at a

hearing in the underlying sexual-harassment case. He testified that he did not

know the defense attorneys, that he had not overheard either of them talking about

the case, and that he had never told respondent that he had. The witness said he

had for these reasons strongly urged respondent not to pursue the defamation

action, but she had refused to listen.

{¶ 30} After this hearing, respondent finally did dismiss the defamation

action. The defendants moved for sanctions, and the common pleas court agreed

that respondent’s suit was frivolous. The court ordered respondent to pay the two

defendants $500 each and to pay their counsel $3,000. The imposition of these

sanctions was upheld on appeal.

{¶ 31} Based on the foregoing, we find the requisite clear and convincing

proof that respondent’s defamation action against opposing counsel was

completely frivolous.

Sanction

Respondent’s False Statements Are Subject to Disciplinary Sanction

{¶ 32} Respondent offers no legal precedent to support her argument that

her statements about the judges and county prosecutor are constitutionally

protected speech. As relator observes, however, Disciplinary Counsel v.

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

question. We summarized Gardner in Shimko v. Lobe, 103 Ohio St.3d 59, 2004-

Ohio-4202, 813 N.E.2d 669, ¶ 58:

{¶ 33} “In Disciplinary Counsel v. Gardner, * * * this court held that the

Free Speech Clause of the Ohio Constitution, Section II [11], Article I, although

8

January Term, 2009

broader than the federal Constitution in protecting certain false statements, does

not forbid the imposition of discipline on an attorney for violating DR 8-102(B)

by falsely accusing an appellate panel of judicial impropriety during a pending

court proceeding. In that case, the court adopted an objective standard to

determine whether a lawyer’s statement about a judicial officer was made with

knowledge or reckless disregard of its falsity, rather than the subjective ‘actual

malice’ standard applicable in defamation cases under New York Times v. Sullivan

(1964), 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686. In so doing, we explained

that DR 8-102(B) is designed ‘to preserve public confidence in the fairness and

impartiality of our system of justice’ and specifically concluded that ‘the state’s

compelling interest in preserving public confidence in the judiciary supports

applying a standard in disciplinary proceedings different from that applicable in

defamation cases.’ (Emphasis added.) Id., 99 Ohio St.3d 416, 2003-Ohio-4048,

793 N.E.2d 425, at ¶ 29 and 31.”

{¶ 34} The standard adopted in Gardner evaluates an attorney’s

statements in terms of “ ‘“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.’

” Gardner, 99 Ohio St.3d 416, 2003-Ohio-4048, 793 N.E.2d 425, at ¶ 26, quoting

Standing Committee on Discipline v. Yagman (C.A.9, 1995), 55 F.3d 1430, 1437,

quoting United States Dist. Court, E. Dist. of Wash. v. Sandlin (C.A.9, 1993), 12

F.3d 861, 867. Under this standard, attorneys may still “freely exercise free

speech rights and make statements supported by a reasonable factual basis, even if

the attorney turns out to be mistaken.” Id. at ¶ 31. But plainly, Gardner stands

for the proposition that when an attorney levels accusations of judicial

impropriety that a reasonable attorney would consider to be untrue, disciplinary

sanctions are permissible.

9

SUPREME COURT OF OHIO

{¶ 35} Respondent’s accusations were baseless. Given the complete lack

of substantiation, no reasonable attorney would accept her charges of bias and

corruption as true. The imposition of disciplinary measures in this case, therefore,

poses no constitutional implications.

An Indefinite Suspension Is Appropriate

{¶ 36} In recommending the indefinite suspension of respondent’s license

to practice, the board weighed the mitigating and aggravating factors listed in

BCGD Proc.Reg. 10(B). The board found only the single mitigating factor on

which respondent urges us to rely – lack of a prior record of professional

discipline. See BCGD Proc.Reg. 10(B)(2)(a). Respondent’s record, however,

does little to offset the aggravating factors that are also present.

{¶ 37} As the board found, respondent committed acts of dishonesty,

engaged in a pattern of misconduct, committed multiple offenses, and has failed

to acknowledge the wrongfulness of her conduct. BCGD Proc.Reg. 10(B)(1)(b),

(c), (d), and (g). Her attacks on the public officials caused considerable harm.

BCGD Proc.Reg. 10(B)(1)(h). False statements impugning the integrity of

members of the judiciary and judicial system erode public confidence. Gardner,

99 Ohio St.3d 416, 2003-Ohio-4048, 793 N.E.2d 425, at ¶ 30.

{¶ 38} Also factoring into our decision is respondent’s failure to inquire

into the truth of alleged racial discrimination and other claims and the cost to her

clients. After an unsuccessful appeal of decisions granting summary judgment,

Judge Adams assessed attorney fees and costs against respondent and her clients,

jointly and severally, a decision that the Sixth Circuit affirmed but remanded for a

new calculation of the amounts owed by each on an individual basis. See Garner

v. Cuyahoga Cty. Juvenile Court (2009), 554 F.3d 624.

{¶ 39} Moreover, respondent seems unable to understand fundamental

evidentiary and procedural rules, a problem manifested by her disjointed efforts to

present her case before the hearing panel. When questioned about the firsthand

10

January Term, 2009

knowledge she claimed to have of the improprieties she had alleged, respondent

referred to having learned the information from “someone else” or by “looking at

documents,” thereby erroneously implying that unreliable hearsay may serve as

competent proof. She argued in closing, “If there is any question as to whether

respondent had a basis for her allegations, you only have to look at the

newspapers.” Respondent has further maintained that in requiring her to set forth

the basis for her claims, the statutory provisions or court rules for obtaining a

judge’s disqualification or recusal required her to level the charges that she did.

{¶ 40} In Gardner, the lawyer attacked court of appeals judges in a

request for reconsideration, objecting to a decision affirming his client’s criminal

conviction. He accused the panel of having a prosecutorial bias, distorting the

truth, being result-driven, and ignoring well-established law. Even at the

disciplinary hearing, the lawyer confirmed his continued belief that the judges had

“skewed and ignored the facts, disregarded honesty and truth, and violated their

oaths to decide cases fairly and impartially.” Id., 99 Ohio St.3d 416, 2003-Ohio-

4048, 793 N.E.2d 425, ¶ 11. Because such unfounded attacks on the judiciary

warranted an actual suspension from practice, we suspended the lawyer’s license

for six months.

{¶ 41} But Gardner leveled his attacks in a single case. He did not, as

respondent has, keep resorting to such improprieties in case after case as a defense

to irrational suspicions of corruption and discrimination in government. We have

seen such misconduct before and have dealt with it severely. For making

numerous false accusations of criminal and unethical activity against public

officials and private citizens, compromising her clients' interests, and

manipulating the legal system to harass and intimidate, we permanently disbarred

the attorney in Disciplinary Counsel v. Baumgartner, 100 Ohio St.3d 41, 2003-

Ohio-4756, 796 N.E.2d 495.

11

SUPREME COURT OF OHIO

{¶ 42} Baumgartner made accusations against anyone she perceived as a

detractor. Respondent’s accusations were not as pervasive as Baumgartner’s, but

they were also not as restricted as Gardner’s one-time expression of frustration,

and Gardner later apologized and acknowledged that his accusations had been

unprofessional. The intermediate sanction of indefinite suspension is therefore

appropriate.

{¶ 43} Respondent is indefinitely suspended from the practice of law in

Ohio and, pursuant to Gov.Bar R. V(10)(B), may not petition for reinstatement

until at least two years from the date of our order. Moreover, because of our

concerns that respondent’s misconduct may be a by-product of unaddressed

mental-health issues, we impose a condition of reinstatement in addition to the

requirements of Gov.Bar R. V(10)(B) through (E): any petition for reinstatement

that respondent files must also include proof that to a reasonable degree of

medical certainty, she is mentally fit to return to the competent, professional, and

ethical practice of law.

{¶ 44} Costs are taxed to respondent.

Judgment accordingly.

MOYER, C.J., and PFEIFER, LUNDBERG STRATTON, O’CONNOR,

O’DONNELL, LANZINGER, and CUPP, JJ., concur.

__________________

Jonathan E. Coughlan, Disciplinary Counsel, and Lori J. Brown, First

Assistant Disciplinary Counsel, for relator.

J.K. Roberts Law Group, Ltd., Jacqueline Roberts, and Lawrence J.

Kramer, for respondent.

______________________

12