The opinion
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Goulding, Slip Opinion No. 2020-Ohio-4588.]
NOTICE
This slip opinion is subject to formal revision before it is published in
an advance sheet of the Ohio Official Reports. Readers are requested
to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
65 South Front Street, Columbus, Ohio 43215, of any typographical or
other formal errors in the opinion, in order that corrections may be
made before the opinion is published.
SLIP OPINION NO. 2020-OHIO-4588
DISCIPLINARY COUNSEL v. GOULDING.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Disciplinary Counsel v. Goulding, Slip Opinion No.
2020-Ohio-4588.]
Judges—Misconduct—Violations of the Code of Judicial Conduct—Conditionally
stayed six-month suspension.
(No. 2020-0738—Submitted July 22, 2020—Decided September 29, 2020.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2020-007.
______________
Per Curiam.
{¶ 1} Respondent, Judge Michael Robert Goulding, of Toledo, Ohio,
Attorney Registration No. 0066071, was admitted to the practice of law in Ohio in
1996. He has been a judge of the Lucas County Court of Common Pleas, General
Division, since August 26, 2013.
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{¶ 2} In a February 18, 2020 complaint, relator, disciplinary counsel,
alleged that Goulding engaged in judicial misconduct by interfering in a case
assigned to another judge involving the incarcerated boyfriend of the daughter of
Goulding’s friends, engaging in ex parte communications with the boyfriend, and
orchestrating the boyfriend’s release on a recognizance bond two days before his
scheduled arraignment.
{¶ 3} Based on the parties’ stipulations and the evidence presented at a
hearing before a panel of the Board of Professional Conduct, the board found that
Goulding committed the charged misconduct and recommends that he be
suspended from the practice of law for six months with the entire suspension
stayed on conditions.
{¶ 4} We adopt the board’s findings of misconduct and recommended
sanction.
Facts and Misconduct
{¶ 5} On February 8, 2019, a Lucas County grand jury indicted C.G. on
three second-degree felony counts of illegal use of a minor in a nudity-oriented
performance. On Friday, February 15, C.G. was arrested and held without bail in
the Lucas County Jail.
{¶ 6} On Sunday, February 17, longtime friends of Goulding summoned
him to their home to assist them with an emergency. Upon his arrival, the friends
informed Goulding that their daughter had locked herself in her room following
C.G.’s arrest. Interpreting their request for assistance to be “a quest for
information” regarding C.G.’s status and current whereabouts, Goulding used his
cell phone to call the Lucas County Pretrial Services Department. Although it is
not clear whether Goulding identified himself by name or title, his phone number
was in the department’s Caller ID system. Goulding therefore stipulated that the
officer who answered his call knew his identity as a common pleas court judge.
After confirming that C.G. remained in custody, Goulding asked the officer about
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the pending charges. The officer informed him that C.G. had been charged with
several felony counts of illegal use of a minor in a nudity-oriented performance.
{¶ 7} Rather than end the call after he obtained the information his friends
were seeking, Goulding asked the officer whether the department had prepared a
public-safety assessment (a tool designed to assess a defendant’s flight risk and
likelihood of engaging in criminal activity while charges are pending). The
officer confirmed that an assessment had been prepared and stated that the
recommendation was to release C.G. on a recognizance bond and prohibit him
from having contact with the alleged victim. In addition, the officer informed
Goulding that C.G. was on probation for an aggravated-menacing conviction in
the Maumee Municipal Court but that due to an issue with that court’s website, he
could not obtain any other information about that offense.
{¶ 8} The officer informed Goulding that C.G.’s case was assigned to
Judge Joseph McNamara, another judge of the Lucas County Court of Common
Pleas, General Division, and was scheduled for arraignment on Tuesday, February
19. Nevertheless, Goulding ordered a recognizance bond with a no-contact order,
allowing for C.G.’s immediate release.
{¶ 9} At some point during the evening, Goulding learned the identity of
an attorney who might be representing C.G. in the pending case.
{¶ 10} Meanwhile, the daughter of Goulding’s friends had been speaking
with C.G. on her cell phone. Upon learning that Goulding had orchestrated
C.G.’s release, the daughter handed the phone to Goulding, who spoke directly
with C.G. and informed him that he would be released in about an hour. He
instructed C.G. to “sit tight” until his parents arrived, and he told C.G. that he
would have to appear before Judge McNamara on February 19. C.G. replied,
“Thank you,” to which Goulding responded, “Do you have any questions?” C.G.
stated that he did not and once again thanked Goulding.
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{¶ 11} After handing the phone back to his friends’ daughter, Goulding
sent a text message to the attorney who was thought to be representing C.G.,
advising him that Goulding had set a recognizance bond with a no-contact order.
Later that evening, the attorney responded to confirm his representation and thank
Goulding for his assistance.
{¶ 12} After C.G. discussed his anticipated release with his father, C.G.
called the daughter of Goulding’s friends. Meanwhile, Goulding’s friends
informed Goulding that the alleged victim of C.G.’s offenses (who was
significantly younger than C.G.) had sent nude photographs of herself to C.G. and
that C.G. had been expelled from two schools for drug-related behavior.
Goulding began to have second thoughts about setting the bond and permitting
C.G. to be released before his scheduled arraignment.
{¶ 13} Unable to obtain additional information about C.G.’s aggravated-
menacing conviction from the Maumee Municipal Court’s website on his
smartphone, Goulding took the phone from his friends’ daughter and spoke with
C.G. a second time. He began the conversation by asking C.G. whether his
aggravated-menacing conviction involved the same victim, and C.G. assured him
that it did not. Goulding then asked C.G. a series of questions about the facts
underlying the charges pending against him.
{¶ 14} Later that evening, the Lucas County Jail released C.G. on a
recognizance bond pursuant to Goulding’s order. Without Goulding’s
involvement, C.G. would have been held without bail until his arraignment
scheduled for two days later.
{¶ 15} On the day of C.G.’s scheduled arraignment, Goulding left a
voicemail message for Judge McNamara, informing him that he had set bond in
C.G.’s case, and Judge McNamara left that bond intact. However, Goulding did
not inform C.G.’s counsel that he had engaged in ex parte communications with
C.G. and that he may have learned information that was material to the case. Nor
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January Term, 2020
did he inform the prosecutor’s office that he had engaged in ex parte
communications with C.G. and his counsel, that he had set the bond in C.G.’s
case, or that C.G. had been released from jail.
{¶ 16} While preparing discovery in C.G.’s case, a Lucas County assistant
prosecutor listened to C.G.’s jail calls and recognized Goulding’s voice. The
assistant prosecutor informed his supervisor of Goulding’s communications with
C.G. and notified Goulding that he would be listed as a state’s witness in the case.
Goulding contacted his personal counsel and then self-reported his misconduct to
relator on April 15, 2019. He later waived his right to an independent
determination of probable cause by the board.
{¶ 17} In May 2019, C.G. pleaded guilty to four first-degree
misdemeanors—disseminating matter harmful to juveniles, criminal mischief,
telecommunications harassment, and theft. In exchange for his pleas, the state
dismissed the three second-degree felony counts of illegal use of a minor in a
nudity-oriented performance. The parties have stipulated that Goulding’s
communication with C.G. did not impact the final disposition of the case.
{¶ 18} The parties stipulated and the board found that Goulding’s conduct
violated Jud.Cond.R. 1.2 (requiring a judge at all times to act in a manner that
promotes public confidence in the independence, integrity, and impartiality of the
judiciary and to avoid impropriety and the appearance of impropriety) and 2.9(A)
(generally prohibiting a judge from initiating, receiving, permitting, or
considering ex parte communications). Although the parties agreed to dismiss an
alleged violation of Jud.Cond.R. 1.3 (prohibiting a judge from abusing the
prestige of judicial office to advance the personal or economic interests of the
judge or others), the board found that without Goulding’s personal intervention on
behalf of his friends, C.G. would not have been released from jail two days before
his scheduled arraignment. Accordingly, the board found that Goulding’s conduct
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represented an obvious abuse of his judicial office that falls squarely within the
conduct prohibited by the rule.
{¶ 19} We adopt the board’s findings that Goulding’s conduct violates
Jud.Cond.R. 1.2, 1.3, and 2.9(A).
Stipulated Sanction
{¶ 20} When imposing sanctions for attorney misconduct, we consider all
relevant factors, including the ethical duties that the lawyer violated, the
aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions
imposed in similar cases.
{¶ 21} Contrary to the parties’ stipulation to a lack of aggravating factors,
the board found that at least two aggravating factors are present. First, Goulding
committed multiple rule violations. See Gov.Bar R. V(13)(B)(4). In addition to
finding that Goulding committed all three of the charged rule violations, the board
noted that his conduct also appears to violate Jud.Cond.R. 2.9(C) (prohibiting a
judge from independently investigating facts in a matter) and 2.4(B) (prohibiting a
judge from permitting family, social, political, financial, or other interests or
relationships to influence judicial conduct or judgment).
{¶ 22} The second aggravating factor found by the board was that
Goulding exhibited an attitude of denial. See Gov.Bar R. V(13)(B)(7). Even after
admitting that his conduct was wrong and that it violates two judicial-conduct
rules, he downplayed his offenses and failed to offer any plausible explanations
for his misconduct. Although he knew that he would be violating the rule
prohibiting ex parte communication by talking to C.G., he testified that he went
ahead and engaged in the first conversation with C.G. because it was “simply
ministerial” and the violation would be “de minimis and inconsequential.” He
claimed that he engaged in the second ex parte communication with C.G. only
because the additional information provided by his friends had raised concerns
that his decision to set the recognizance bond may have been ill-advised. At his
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January Term, 2020
disciplinary hearing, Goulding maintained that he did not initiate either of the ex
parte communications with C.G.—even though he had stipulated that he “took the
phone” from his friends’ daughter to ask C.G. about his aggravated-menacing
conviction and then proceeded to question C.G. about the charges pending against
him.
{¶ 23} When asked why he went above and beyond obtaining and
transmitting the publicly available information about C.G.’s status as requested by
his friends, Goulding stated that he “guess[ed]” he had acted out of “habit” when
he took it upon himself to interfere in another judge’s case by setting bail and
securing the defendant’s release from jail before his scheduled arraignment. He
insisted that C.G.’s release benefitted the jail by making a bed available—though
he presented no evidence that the jail was overcrowded at that particular time.
And although Goulding self-reported his conduct to relator, the board found that
he would not have made that report if the assistant prosecutor had not informed
Goulding that he had discovered the recorded ex parte communications and
identified Goulding as a potential witness in C.G.’s case. On these facts, the
board was not convinced that Goulding appreciated the gravity and
inappropriateness of his conduct.
{¶ 24} As for mitigating factors, the board adopted the parties’ stipulations
that Goulding had no prior discipline, had demonstrated a cooperative attitude
toward the disciplinary proceedings, and had presented more than 20 letters
attesting to his good character and positive reputation in his community. See
Gov.Bar R. V(13)(C)(1), (4), and (5). Unable to discern the motive for
Goulding’s actions, the board declined to adopt the parties’ stipulation that he had
acted without a dishonest or selfish motive.
{¶ 25} The parties jointly recommend that Goulding be publicly
reprimanded for his misconduct. The board considered six cases cited by the
parties in support of that sanction and several others in which we imposed six-
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month suspensions—with or without conditional stays—on members of the
judiciary who had engaged in similar misconduct.
{¶ 26} The board suggested that Goulding’s misconduct is perhaps most
closely aligned with that in Disciplinary Counsel v. Stuard, 121 Ohio St.3d 29,
2009-Ohio-261, 901 N.E.2d 788—a case in which we publicly reprimanded a
judge who had engaged in ex parte communications with an assistant prosecutor
whom he had asked to prepare a sentencing opinion in a death-penalty case.
Although Stuard had violated two canons of the former Code of Judicial Conduct
comparable to Goulding’s violations of Jud.Cond.R. 1.2 and 2.9(A) and had
presented the same mitigating factors that Goulding has established here, there
were no aggravating factors present in Stuard’s case. Citing the three aggravating
factors present here, the board believes that Goulding’s conduct warrants a
sanction more severe than a public reprimand.
{¶ 27} On the other hand, the board found that the two cases in which we
imposed on judges six-month suspensions with no stay are distinguishable from
this case. One of those judges had engaged in dishonest conduct by issuing a
judgment entry falsely stating that the prosecutor had dismissed a speeding case
against the judge’s personal attorney and then engaged in ex parte
communications in an effort to conceal his actions. See Disciplinary Counsel v.
Hale, 141 Ohio St.3d 518, 2014-Ohio-5053, 26 N.E.3d 785. The other judge,
who had repeatedly and inappropriately injected himself into his daughter’s
speeding case and made disparaging remarks about the law-enforcement officer
involved in the case, had a prior disciplinary offense. See Disciplinary Counsel v.
Marshall, 156 Ohio St.3d 263, 2019-Ohio-670, 125 N.E.3d 856.
{¶ 28} After considering those cases, the board found that the appropriate
sanction for Goulding’s misconduct falls somewhere between a public reprimand
and a six-month suspension. It therefore recommends that we impose a six-month
suspension but stay the entire suspension on the conditions that Goulding
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complete two hours of continuing legal education (“CLE”) in the area of judicial
ethics within six months of this court’s final disciplinary order and engage in no
further misconduct. In support of that sanction, the board cited Disciplinary
Counsel v. Hoague, 88 Ohio St.3d 321, 725 N.E.2d 1108 (2000) (imposing a
conditionally stayed six-month suspension on a judge who misused the authority
of his judicial office to reprimand the owner and the driver of a vehicle that he
had personally observed being operated in a reckless manner), and Disciplinary
Counsel v. Porzio, __ Ohio St.3d __, 2020-Ohio-1569, __ N.E.3d __ (imposing a
conditionally stayed six-month suspension on a magistrate who, after conducting
a hearing on petitions for civil stalking protection orders, excused one of the pro
se parties and then engaged in a lengthy ex parte communication with the
remaining party regarding the merits of the pending petitions).
{¶ 29} After independently reviewing the record and relevant precedent,
we agree that a six-month suspension, stayed in its entirety on the conditions
recommended by the board, is the appropriate sanction in this case.
Conclusion
{¶ 30} Accordingly, Michael Robert Goulding is suspended from the
practice of law for six months, with the entire suspension stayed on the conditions
that (1) within six months of the final order in this case, he complete two hours of
CLE in the area of judicial ethics in addition to the requirements of Gov.Jud.R. IV
and (2) engage in no further misconduct. If Goulding fails to comply with either
condition of the stay, the stay will be lifted and he will serve the full six-month
suspension. Costs are taxed to Goulding.
Judgment accordingly.
O’CONNOR, C.J., and KENNEDY, FRENCH, DEWINE, and STEWART, JJ.,
concur.
DONNELLY, J., concurs in part and dissents in part, with an opinion.
FISCHER, J., not participating.
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_________________
DONNELLY, J., concurring in part and dissenting in part.
{¶ 31} In this case, the parties agreed that respondent Judge Michael
Goulding’s misconduct warrants a public reprimand. I see nothing in the record
that suggests that we should impose a sanction different from the one that was
jointly recommended. I concur in the bulk of the majority opinion but would
impose a public reprimand.
_________________
Joseph M. Caligiuri, Disciplinary Counsel, and Michelle R. Bowman,
Assistant Disciplinary Counsel, for relator.
Montgomery Jonson, L.L.P., and George D. Jonson, for respondent.
_________________
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