# Disciplinary Counsel v. O'Diam

> Ohio Supreme Court · April 6, 2023 · 172 Ohio St. 3d 305

URL: https://www.frixlaw.com/law-library/cases/9385190

## Case

- **Court:** Ohio Supreme Court
- **Decided:** April 6, 2023
- **Citations:** 172 Ohio St. 3d 305; 223 N.E.3d 447; 2023 Ohio 1118
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Per Curiam
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. O’Diam, Slip Opinion No. 2023-Ohio-1118.]

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. 2023-OHIO-1118
DISCIPLINARY COUNSEL v. O’DIAM.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Disciplinary Counsel v. O’Diam, Slip Opinion No.
2023-Ohio-1118.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct—
Conditionally stayed six-month suspension.
(No. 2022-0953—Submitted January 10, 2023—Decided April 6, 2023.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the
Supreme Court, No. 2021-031.
______________
Per Curiam.
{¶ 1} Respondent, Brittany Dawn O’Diam, of Centerville, Ohio, Attorney
Registration No. 0086663, was admitted to the practice of law in Ohio in 2010.
{¶ 2} In a December 2021 complaint, relator, disciplinary counsel, alleged
that O’Diam violated five professional-conduct rules in representing the executor
of a decedent’s estate.
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{¶ 3} The parties entered into 62 stipulations of fact and submitted 84
stipulated exhibits to the Board of Professional Conduct. A three-member panel of
the board conducted a hearing, after which it unanimously dismissed three of the
five alleged rule violations. The panel issued a report in which it found that O’Diam
committed the two remaining alleged violations, which arose from her
mistreatment of one of the estate’s beneficiaries. Specifically, the panel found that
O’Diam’s conduct violated Prof.Cond.R. 4.4(a) (prohibiting a lawyer in
representing a client from using means that have no substantial purpose other than
to embarrass, harass, delay, or burden a third person) and 8.4(h) (prohibiting a
lawyer from engaging in conduct that adversely reflects on the lawyer’s fitness to
practice law).
{¶ 4} The panel recommended that O’Diam be suspended from the practice
of law for six months with the entire suspension stayed on the condition that she
commit no further misconduct. The board adopted the panel’s findings of fact and
misconduct and recommended sanction. No objections have been filed.
{¶ 5} After a thorough review of the record, we adopt the board’s findings
of misconduct and agree that a conditionally stayed six-month suspension is the
appropriate sanction for O’Diam’s misconduct.
I. FINDINGS OF FACT
A. The Estate of Carolee Buccalo
{¶ 6} On January 1, 2018, Carolee Buccalo died. Carolee’s granddaughter,
Yvonne Martin, was named as executor in Carolee’s will and retained O’Diam to
represent her in the estate’s administration. In addition to Martin, Carolee’s four
sons—Grant David (“David”), James, Craig, and Nick Buccalo—were named as
beneficiaries. Martin’s father, James, was under guardianship in the Montgomery
County Probate Court. Under the terms of Carolee’s will, James’s inheritance was
to be placed in a trust for his benefit, to be administered by Martin and David as
successor cotrustees.

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{¶ 7} O’Diam’s father, Judge Thomas O’Diam, who is the only probate-
court judge in Greene County, presided over Carolee’s estate. O’Diam had
practiced with her father in his law firm for approximately three years after she was
admitted to the practice of law before he was appointed to the bench in August
2013.
{¶ 8} Given O’Diam’s ties to the judge, her paralegal sent waivers of
disqualification for each of Carolee’s beneficiaries to sign. Those waivers
disclosed that the judge’s former law firm was representing a party to the action,
that the firm was indebted to the judge under a stock-redemption agreement, and
that the judge’s daughter was a shareholder in the firm. The waivers further stated
that those facts “may lead someone to reasonably question Judge O’Diam’s
impartiality” and “may disqualify [him]” from presiding over the case. By signing
the form, however, the beneficiaries acknowledged their belief that the judge would
act “impartially and fairly, despite these circumstances.”
{¶ 9} In early April 2018, only two of the beneficiaries had signed and
returned the waivers. Martin informed O’Diam’s paralegal by email that David
was being difficult and had not done anything that she had asked of him. The
paralegal responded that the case could not be filed until she had received all the
waivers, but she also stated, “[I]f David is going to be difficult we can petition the
court to remove Judge O’Diam and bring in another judge.” She explained, “[T]his
is going to be an unnecessary expense to the estate and will delay how quickly we
can get the estate closed out.”
{¶ 10} On May 1, 2018, O’Diam filed an application to probate Carolee’s
will, along with seven waivers of disqualification, including three signed by David
in his personal and representative capacities. O’Diam filed the initial inventory and
appraisal and a schedule of assets for the estate in July 2018.
{¶ 11} With the consent of the other beneficiaries, David purchased
Carolee’s house from the estate in October 2018. At O’Diam’s disciplinary

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hearing, David testified that the process started in June or July but that Martin had
not immediately responded to his request to purchase the house and then had
procrastinated before signing the contract.
{¶ 12} In late February 2019, O’Diam prepared a distributive fiduciary
account for the estate. Each of the beneficiaries was asked to sign documents
demonstrating their consent to the final accounting and distribution, but it does not
appear that they were given any deadline for returning the documents to O’Diam.
Neither David nor Nick returned the signed documents to O’Diam’s office within
a reasonable amount of time. At O’Diam’s disciplinary hearing, a probate-court
clerk testified that it is not unusual for beneficiaries to fail to return such
documents—and O’Diam stipulated that beneficiaries are not legally required to
sign them. However, the evidence also showed that O’Diam had not had experience
handling estates without the unanimous consent of the beneficiaries. Consequently,
O’Diam’s paralegal told Martin that they would need to seek guidance from the
court about how to proceed if David was not willing to sign the documents. Even
after David informed O’Diam’s office that his attorney had advised him not to sign
the documents—and despite having heard nothing from Nick—O’Diam’s paralegal
continued to blame David alone for the delays and additional expenses incurred.
B. David’s Comments before the Greene County Board of Commissioners
{¶ 13} On May 23, 2019, David attended a public meeting of the Greene
County Board of Commissioners and informed the commissioners that Judge
O’Diam had presided over cases in which parties were represented by his family
members. David expressed his belief that the judge should recuse himself under
those circumstances. David further stated, “Justice depends on the appearance as
well as the reality of fairness in all things. Otherwise, it erodes public confidence
in the legal system.” He added that “[w]hen people leave the courtroom, * * * they
need to feel like they got a fair shake” and that the system “wasn’t rigged.” David
spoke for approximately two and a half minutes on this issue and stated that he

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merely wanted to ensure that the commissioners were aware of Judge O’Diam’s
practice. He did not specifically mention his personal involvement with the judge,
though he stated that he was planning to file a grievance with relator. The
commissioners did not comment on David’s concerns.
C. The O’Diams React to David’s Public Comments
{¶ 14} Judge O’Diam learned of David’s statements to the commissioners
within a few days after they occurred. After determining that David was a
beneficiary of Carolee’s estate, the judge reviewed the case file to ensure that all
the waivers of disqualification had been filed. He called O’Diam to inform her that
David had made comments at the commissioners’ meeting that raised concerns
about the validity of the waivers of disqualification. Then the judge scheduled a
June 6 status conference and ordered the executor and beneficiaries to appear. His
order cautioned that failure to attend would constitute contempt of court.
{¶ 15} After her call with the judge, O’Diam attempted to determine
whether David was represented by counsel. She emailed two attorneys who had
previously represented David. She told one of those attorneys that David was being
“uncooperative” and was creating additional work for her. Then, after describing
David’s comments at the county commissioners’ meeting, she stated:

It is apparent to me that his only motivation for speaking at the
Commissioner[s’] meeting was to stir the pot and attempt to make
my family look bad.
I am sure you can understand that I am extremely upset by
this development, as I do not take kindly to my ethics being
maligned, especially in a public forum. The Court clerk contacted
me today to tell me that [David]’s statements appeared in the
Commissioner[s’] minutes, and as a result, the Judge has ordered a

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mandatory Status Conference for next week. It sounds like he is
even less happy than I am.

{¶ 16} In late May, David consulted with another attorney about whether
he should sign the documents to consent to the final accounting and distribution of
the estate. After receiving the scheduling notice for the status conference, David
delivered the signed documents to O’Diam’s office. But by that time, O’Diam had
filed an amended inventory and appraisal and an amended schedule of assets
disclosing several newly discovered assets that rendered obsolete the documents
recently signed by David.
{¶ 17} O’Diam emailed David to inform him that the signed documents did
not relieve him of his obligation to attend the status conference and that his
attendance was mandatory. After David asked why O’Diam wanted him there,
O’Diam replied, “I did not request your presence at the Status Conference, the
Court is requiring that all of the beneficiaries are present.” O’Diam did not inform
David that she had spoken with the judge or that David’s public comments were
the impetus for the status conference.
D. The Status Conference
{¶ 18} David attended the June 6 status conference without counsel. After
thanking the beneficiaries for “showing up on such short notice,” the judge
explained that a “very disturbing incident [had] taken place with the estate.” He
stated that he needed to “get it resolved” that day and then played a recording of
David’s comments at the commissioners’ meeting.
{¶ 19} After the recording was played, Judge O’Diam called David to the
stand, placed him under oath, and informed him that any false statements he made
would constitute perjury. He examined David for nearly an hour on issues related
to David’s waiver of disqualification and his comments to the commissioners, the
latter of which the judge deemed “slander[ous]” and “despicable.” The judge then

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allowed O’Diam to question David and make statements on the record for more
than 15 minutes without restriction.
{¶ 20} In Judge O’Diam’s disciplinary case, we summarized O’Diam’s
questioning of David as follows:

[O’Diam] asked a couple of questions about the waiver of
disqualification and then said, “Do you expect that I should have
known that you had an issue even though I received a signed waiver
from you?” [David] attempted to explain his concerns and stated,
“I’m not trying to argue with you[,]” [t]o which [O’Diam] replied,
“I am.” [O’Diam] then cross-examined [David] regarding
conversations that she had had with his attorney—even though
[David] had not been present during those conversations—and
presented her personal notes memorializing one of those
conversations as an exhibit.
[The judge] did not curtail [O’Diam]’s questioning of
[David] in any way; rather, he assisted her in questioning [David].
***
[O’Diam] continued to question [David], repeatedly asking
whether he had ever raised any concerns about the waiver to her. He
told her that he had not. [O’Diam] then stated, “And yet you still
thought it was appropriate to impugn my character as an attorney in
the public forum of a public county commissioners meeting, as well
as the character of the court, which has been addressed?” [David]
responded, “We might have differences of opinion,” to which
[O’Diam] replied, “We certainly do.” [David] concluded by stating,
“I’m not trying to be rude, but when I did public comments * * * I

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make a habit of not trying to make them personal.” [O’Diam]
retorted, “You failed in this account.”
After advising [David] that several forms that he had signed
and delivered to her office were no longer valid, [O’Diam] told him
that she felt that the only appropriate way to communicate with him
was under oath right then. She explained that his concerns could
have been addressed much more efficiently if he had raised them in
a timely manner. She closed her questioning by informing [David],
“You have cost this estate an extensive amount of money, an
extensive amount of heartache and an extensive amount of stress
that was all completely unnecessary had you just proceeded like an
adult.” [David] stated, “And I have no response to that,” to which
[O’Diam] replied, “No you do not. It was not a question. * * * It
was a statement,” and then claimed, “This is not an adversarial
proceeding.”

(Ellipses sic.) Disciplinary Counsel v. O’Diam, 168 Ohio St.3d 137, 2022-Ohio-
1370, 196 N.E.3d 812, ¶ 19-22.
{¶ 21} At the conclusion of the status conference, Judge O’Diam
announced that he would formally recuse himself from the case and request that a
visiting judge be assigned.
{¶ 22} In this disciplinary proceeding, the board found that beginning with
O’Diam’s first question, her tone was “argumentative and aggressive” and that “it
[was] evident from the audio recording * * * that she was angry with [David].”
And although the judge testified that the purpose of the status conference was to
determine whether he was able to continue to preside over the estate, neither the
judge nor O’Diam allowed David to explain any concerns that he may have had
about the waiver he had signed or asked him whether he wished to withdraw it.

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{¶ 23} David testified he did not know that the status conference would be
focused on his comments at the commissioners’ meeting and that had he known
that he would be called as a witness, he would have taken an attorney with him. He
explained that he felt that he was being “berated and beaten up” and “humiliated”
during the judge’s questioning and that he “just wanted to survive the hour and be
able to leave the courtroom.”
{¶ 24} David described O’Diam’s tone and demeanor during the status
conference as “[a]ggressive,” “[m]ean,” “[m]ean-spirited,” “[a]ngry,” and
“[d]egrading.” In addition to feeling embattled, ambushed, and humiliated, David
stated, the abuse he suffered “destroyed [him] in front of [his] brothers” and
destroyed his relationship with his family. He explained that after the status
conference, he fell into a deep depression that “shut [him] down” for several
months. He did not file a grievance against O’Diam, because he feared “retaliation”
and “revenge” and he “just [didn’t] want to have any part of it.” The board noted
that David’s distress while recounting the experience nearly three years after it
happened “was still painfully evident.”
E. Conclusion of the Probate Estate
{¶ 25} In August 2019, a visiting judge was assigned to Carolee’s estate. In
the meantime, O’Diam had filed the final fiduciary’s account, which showed that a
balance of approximately $156,000 would be distributed to the beneficiaries. She
also had filed an application for authority to pay attorney fees, seeking $8,171 for
her work on the estate, which had been approved by Martin.
{¶ 26} That filing included a statement from O’Diam explaining the
reasonableness of her fees, which exceeded the amount rebuttably presumed to be
reasonable under the applicable local rule. See Loc.R. 71.2(E) of the Greene
County Probate Court. In that statement, O’Diam repeatedly referred to David as
the “problematic” beneficiary and stated that he had been “a consistent source of
unnecessary distress for the Executor from the start of the administration” and that

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his actions had “led to extensive additional time spent by the Executor and
Counsel.”She stated that she had sent copies of a final distributive account to the
beneficiaries with documents for them to sign but claimed that the “problematic”
beneficiary failed to return them even though he had not expressed any objections
to their content. Although O’Diam now acknowledges that the beneficiaries were
not required to sign the documents, she opined in the statement that “[t]his lack of
cooperation resulted in the need to revise the final account * * * to make it a final
non-distributive account.”
{¶ 27} In her request for additional fees, O’Diam also stated that the revised
final nondistributive account was ready to file when the court informed her of the
need for a status conference “to address a complaint levied by the problematic
beneficiary with the Greene County Commissioners” relating to “alleged
misconduct of Counsel and the Court.” She claimed that given the “additional
disruption” created by those accusations, she “had no choice but to request an
extension of the due date for the final account.” O’Diam concluded her request for
additional fees by noting that she had voluntarily reduced her fee to an amount that
the court could approve without requiring each beneficiary’s consent because she
was “sympathetic to the non-problematic beneficiaries” and felt that it was “unfair
for them to have to bear even more of a burden due to one beneficiary’s need to
cause unnecessary problems.”
{¶ 28} In contrast to O’Diam’s explanation, which blamed David for all the
delays and increased costs incurred by Carolee’s estate, the board found that many
other factors had contributed to those delays and costs. Those factors included
newly discovered assets that required amendments to the inventory and schedule of
assets, Martin’s delay in consenting to the sale of the house, Nick’s failure to return
signed documents within a reasonable timeframe, O’Diam’s lack of knowledge
about how to proceed without the consent of all beneficiaries, Judge O’Diam’s
decisions to schedule the status conference and to recuse himself due to his outrage

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regarding David’s public comments, and O’Diam’s request for an extension of time
for the final account so that she could seek attorney fees for the status conference.
{¶ 29} The visiting judge ultimately approved O’Diam’s amended
inventory and appraisal and authorized payment of her requested fees. O’Diam
filed the final distributive fiduciary account in October 2019, and checks drawn on
an investment-company account were issued to all beneficiaries. At that time,
O’Diam’s office drafted a letter for Martin to send to David along with a copy of
the distributive fiduciary account, a copy of Martin’s resignation as cotrustee of
James’s trust, and two checks—one payable to David and the other payable to
David as trustee of James’s trust. The estate was closed without objection that
December.
F. O’Diam’s Reaction to David’s Failure to Deposit the Distribution Checks
{¶ 30} In February 2020, Martin emailed O’Diam’s paralegal to inform her
that David had not deposited the two distribution checks that had been issued to
him. Martin told O’Diam that the envelope containing the checks was “probably
at [David’s] house unopened because it ha[d] [her] return address on it.” A few
days later, David sent a text message to Martin stating that the investment company
had contacted him about the checks and asking her whether she had resigned from
James’s trust. Martin emailed a screenshot of the text to O’Diam’s paralegal with
the comment, “It confirms that he got the call from [the investment company] and
knows I’m not a trustee. It also confirms that he did not open his mail.”
{¶ 31} The next day, O’Diam sent a letter to James’s coguardians—copying
the magistrate presiding over James’s guardianship and Montgomery County Adult
Protective Services (“APS”)—in which she alleged that David’s failure to deposit
James’s distribution check into his trust account was “financially abusive to a ward
of th[e] Court.” Despite her paralegal’s knowledge that David had learned just one
day earlier that the check was in his possession and that Martin had resigned as
cotrustee, O’Diam wrote, “I fear that [David’s] inaction may be evidence of a

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breach of his fiduciary duties owed to James,” adding that James’s inheritance had
“been effectively held hostage” by David. She opined that it was “inexcusable [for
David] to withhold funds from James” when in reality, David had not realized that
the funds were in his possession and had never intentionally withheld them from
James. Ignoring the role that she and Martin had played in thrusting David into the
position of sole trustee, O’Diam accused David of “choosing to ignore his duties as
Trustee” and “directly contraven[ing]” his mother’s intention to ensure the
provision of his brother’s care.
{¶ 32} At her disciplinary hearing, O’Diam claimed that she had made the
above allegations in connection with her duty as a mandatory reporter of abuse,
neglect, or exploitation, see R.C. 5101.63(A) (requiring attorneys who have
reasonable cause to believe that an adult is being abused, neglected, or exploited to
immediately report that belief to the county department of job and family services).
Although O’Diam did not believe that David had engaged in any criminal conduct,
she knew that her letter would trigger a criminal investigation.
{¶ 33} The board concluded that O’Diam “was not in a position to make an
assessment of James’s situation or of David[’s] suitability to serve in a fiduciary
capacity,” in part because she had had only minimal contact with David and had
never met James. In fact, if she had inquired about James’s financial condition at
that time, she would have learned that his circumstances were not dire, because he
had received money from Carolee’s nonprobate assets and had approximately
$80,000 in cash on hand.
{¶ 34} The board found that the facts set forth in O’Diam’s letter to James’s
coguardians did not support a reasonable belief that James was being abused,
neglected, or exploited and that the letter was “replete with half-truths” and failed
to accurately portray O’Diam’s knowledge of the situation. Moreover, the board
found, the letter had caused additional anguish for David, who later received a
“shaming” letter from James’s coguardian and faced a criminal investigation into

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his handling of James’s share of the probate estate. Ultimately, the investigator
concluded that “criminal charges would not be appropriate” and that “probate court
would be a better arena [in which] to resolve the matter.”
II. FINDINGS OF MISCONDUCT
{¶ 35} The board found that from the time O’Diam learned of David’s
comments at the county commissioners’ meeting, he became the target of her
written and verbal disparagement and abuse: she informed attorneys who had
represented David that she was having issues with him, that he was being
uncooperative, and that he had tried to make her family look bad; in the presence
of his family at the status conference, she demeaned and humiliated David and
accused him of singlehandedly costing the estate substantial amounts of money;
and in their correspondence with Martin and the probate court, she and her paralegal
repeatedly referred to David as being “problematic” and unjustly blamed him for
all the delays and increased attorney fees incurred in the administration of the
estate. In addition, the board found that O’Diam had engaged in retaliatory,
demeaning, and humiliating conduct in her questioning of David during the status
conference.
{¶ 36} Finding that O’Diam’s conduct had no substantial purpose other than
to embarrass, harass, delay, or burden David, the board concluded that O’Diam
violated Prof.Cond.R. 4.4(a). The board also found that O’Diam’s conduct in
intentionally triggering a criminal investigation and other humiliating
consequences for David with misleading insinuations of financial abuse and
mistreatment adversely reflected on her fitness to practice law in violation of
Prof.Cond.R. 8.4(h).
{¶ 37} We agree that O’Diam engaged in a pattern of misconduct that had
no substantial purpose other than to embarrass or harass David in violation of
Prof.Cond.R. 4.4(a). In accord with the board’s report, we also find that O’Diam’s
letter to James’s coguardians in which she mischaracterized David’s failure to

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deposit James’s distribution check—which by every indication was an innocent
oversight that had just been brought to his attention—as “financially abusive” was
sufficiently egregious to warrant finding an additional violation of Prof.Cond.R.
8.4(h). See Disciplinary Counsel v. Bricker, 137 Ohio St.3d 35, 2013-Ohio-3998,
997 N.E.2d 500, ¶ 21. We therefore adopt the board’s findings of misconduct.
III. SANCTION
{¶ 38} When imposing sanctions for attorney misconduct, we consider all
relevant factors, including the ethical duties that the attorney violated, the
aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions
imposed in similar cases.
A. Aggravating and Mitigating Factors
{¶ 39} The board found that O’Diam had acted with a dishonest or selfish
motive, engaged in a pattern of misconduct, and caused harm to a vulnerable victim.
See Gov.Bar R. V(13)(B)(2), (3), and (8). The board noted that O’Diam
purportedly “regretted the manner” in which she had questioned David at the status
conference. It found, however, that her claims that her actions—including her letter
to James’s coguardians copying the magistrate and APS—were not intended to
embarrass, harass, burden, or retaliate against David manifested a refusal to
acknowledge the wrongful nature of her conduct—hence a fourth aggravating
factor. See Gov.Bar R. V(13)(B)(7).
{¶ 40} As for mitigating factors, the board found that O’Diam has no prior
discipline and had exhibited a cooperative attitude toward the proceedings by
submitting joint stipulations of fact and exhibits. See Gov.Bar R. V(13)(C)(1) and
(4). In addition, the board found that O’Diam had submitted the testimony of three
witnesses and letters from eight colleagues and friends attesting to her good
character and/or reputation, some of whom spoke of the good work she had done
for her clients, her church, and several nonprofit organizations. See Gov.Bar R.
V(13)(C)(5).

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B. The Panel’s Recommended Sanction
{¶ 41} In determining the proper sanction for O’Diam’s misconduct, the
board considered six cases. Two of those cases involved attorneys who, like
O’Diam, were found to have violated Prof.Cond.R. 4.4(a). But in contrast to
O’Diam, the attorneys in those cases engaged in significant additional misconduct.
See Toledo Bar Assn. v. Yoder, 162 Ohio St.3d 140, 2020-Ohio-4475, 164 N.E.3d
405 (imposing a two-year suspension, with six months conditionally stayed, on an
attorney who violated Prof.Cond.R. 4.4(a) by making false, threatening, and
derogatory statements about opposing party and counsel and committed ten
additional rule violations); Disciplinary Counsel v. Harmon, 158 Ohio St.3d 248,
2019-Ohio-4171, 141 N.E.3d 142 (imposing a conditionally stayed two-year
suspension on an attorney who violated Prof.Cond.R. 4.4(a) and six other rules by
filing a frivolous lawsuit against his client’s daughter and friend to harass and
embarrass them and attempt to collect an excessive fee).
{¶ 42} The board found the number and egregiousness of the violations
committed in this case to be most similar to those in Butler Cty. Bar Assn. v. Foster,
99 Ohio St.3d 491, 2003-Ohio-4130, 794 N.E.2d 26, and Columbus Bar Assn. v.
Jones, 166 Ohio St.3d 18, 2021-Ohio-4070, 181 N.E.3d 1178.
{¶ 43} During antagonistic collection proceedings, Foster directed certain
unprofessional emails and other correspondence to the older brother of a pro se
litigant. Subsequent communications from Foster described the brother and his
behavior in offensive terms and made a lewd suggestion. We found that Foster
violated two provisions of the former Code of Professional Responsibility that are
precursors to the rules that O’Diam has been found to have violated here. See
former DR 1-102(A)(6) (prohibiting a lawyer from engaging in conduct that
adversely reflects on the lawyer’s fitness to practice law); former DR 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). We

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also found that Foster had engaged in conduct that was prejudicial to the
administration of justice and that he had failed to seek the lawful objectives of a
client through reasonably available and permissible means. In the presence of two
mitigating factors and just one aggravating factor, we found that Foster’s pattern of
escalating abusive language warranted a conditionally stayed six-month
suspension. Foster at ¶ 4, 10.
{¶ 44} Jones engaged in harassing conduct by incorporating two business
entities using names deceptively similar to the brand names used by his estranged
wife’s companion and by leaving a threatening message on the companion’s
voicemail. After the companion filed a disciplinary grievance against him, Jones
sent his then ex-wife hostile text messages threatening to retaliate against the
companion and stating that the companion’s “false” allegations against Jones had
threatened their family’s security. Id. at ¶ 7. In his response to the grievance, Jones
falsely stated that he had legitimate purposes for incorporating the businesses and
attempted to rationalize his harassing conduct, although he later admitted that the
purpose of his actions was to retaliate against the companion for dating his ex-wife.
{¶ 45} We found that Jones had engaged in dishonest conduct, that he had
made false statements of material fact in connection with his disciplinary matter,
and that his text messages to his ex-wife had adversely reflected on his fitness to
practice law. In light of significant mitigating factors—including Jones’s clean
disciplinary record, his eventual cooperation in the disciplinary process, his
acknowledgment of his misconduct, his submission of good-character and
reputation evidence, and the ongoing treatment of his mental-health and substance-
abuse disorders—we imposed a conditionally stayed six-month suspension for
Jones’s misconduct. Jones at ¶ 11, 14, 19. We also ordered Jones to serve a one-
year period of monitored probation. Id. at ¶ 19.
{¶ 46} In this case, the board recommends that we impose a conditionally
stayed six-month suspension for O’Diam’s misconduct, in accord with the

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sanctions we imposed in Jones and Foster. The board acknowledged that we
imposed the same sanction on Judge O’Diam even though his conduct at the status
conference was more egregious than O’Diam’s and, as a judge, he is “ ‘held to
higher standards of integrity and ethical conduct than attorneys or other persons not
invested with the public trust,’ ” Disciplinary Counsel v. O’Neill, 103 Ohio St.3d
204, 2004-Ohio-4704, 815 N.E.2d 286, ¶ 57, quoting Shaman, Lubet, & Alfini,
Judicial Conduct and Ethics 1-2 (3d Ed.2000). Nevertheless, the board concluded
that a comparable sanction was warranted in this case because O’Diam had engaged
in a pattern of retaliatory misconduct that extended beyond the confines of the status
conference.
{¶ 47} After David made his comments to the county commissioners,
O’Diam claimed that David had maligned her ethics in her own correspondence
with David’s attorneys before she and her father berated him at the status
conference in front of all his siblings. Then, in a public filing in support of her
requested attorney fees, she dubbed David “the problematic beneficiary” and like
her paralegal before her, blamed David alone for the delay and increased expense
incurred by the estate. Finally, O’Diam’s misconduct culminated in the letter she
sent to James’s coguardians, the magistrate presiding over the guardianship
proceeding, and APS in which she intentionally triggered a criminal investigation
by making misleading insinuations that David had financially abused his disabled
brother.
{¶ 48} On these facts, we agree that a six-month suspension stayed in its
entirety on the condition that O’Diam engage in no further misconduct is the
appropriate sanction in this case.
IV. CONCLUSION
{¶ 49} Accordingly, Brittany Dawn O’Diam is suspended from the practice
of law in Ohio for six months, with the suspension stayed in its entirety on the
condition that she commit no further misconduct. If O’Diam fails to comply with

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the condition of the stay, the stay will be lifted and she will serve the full six-month
suspension. Costs are taxed to O’Diam.
Judgment accordingly.
KENNEDY, C.J., and FISCHER, DEWINE, DONNELLY, STEWART, BRUNNER,
and DETERS, JJ., concur.
_________________
Joseph M. Caligiuri, Disciplinary Counsel, and Lia J. Meehan and Audrey
E. Varwig, Assistant Disciplinary Counsel, for relator.
Kegler, Brown, Hill & Ritter and Christopher J. Weber; and Peterson
Conners, L.L.P., and Rasheeda Khan, for respondent.
_________________

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9385190. Public record. Not legal advice.