Thursday, March 8, 2012

Deception And Accusations Result In Suspension

From the web page of the Ohio Supreme Court:

The Supreme Court of Ohio today suspended the law license of [a] Cleveland attorney...for 12 months for multiple violations of the state’s Rules of Professional Conduct in two separate cases.

In a 7-0 decision authored by Justice Yvette McGee Brown, the court adopted findings by the Board of Commissioners on Grievances & Discipline that [the attorney] intentionally deceived the Cuyahoga County Domestic Relations Court when he filed an ex parte motion to amend his client’s complaint in a divorce case. Although the motion indicated that the sole purpose for the amendment was to include additional parties, [he] used the amended pleading to surreptitiously insert an answer to a counterclaim seeking to enforce a prenuptial agreement that had been filed by the opposing party two years earlier, but that [he] had failed to respond to within the time limit set by the rules of civil procedure.

Justice McGee Brown wrote: “[the attorney's] conduct in seeking an ex parte order cannot be justified by fear of concealment or dissipations of assets. The board correctly concluded that [he] unjustifiably alleged the existence of the prenuptial argument in the amended complaint without any mention of the issue in his motions for leave to amend the pleadings.  By insisting that he slipped the prenuptial-agreement argument in under the cover of a legitimate issue instead of a flimsy façade, [he] largely distracts from the core problem.  He was not honest with the court when he amended the complaint to add a defense that he might have otherwise waived.  Further, we reject [his] contention that the ultimate settling of the case somehow legitimized his unscrupulous procedural tactics.”

The court also affirmed the board’s finding that in a second case [the attorney] directed a client, Jeffrey Rymers, and a subordinate lawyer in his firm, Nicholas Gallo, to file sworn affidavits, and that [he] personally filed a memorandum in the domestic relations court that recklessly accused Cuyahoga County Common Pleas Court Judge Eugene Lucci of intimidation and abuse of his judicial office after Lucci filed a motion seeking to disqualify [him] from representing Rymers in a pending case based on an alleged conflict of interest.

With regard to [his] accusations, Justice McGee Brown wrote: “The board determined that [he] had personally instructed his subordinate associate to prepare a motion to strike Lucci’s motion to intervene and to prepare the affidavits claiming that Lucci had threatened and intimidated (Rymers). The board found that the statement regarding intimidation was completely false and irrelevant to the legal issues presented in the motion and that [he] had impugned Lucci’s judicial integrity by accusing him of violating the Rules of Judicial Conduct in an improper forum.  The board further found that the excerpt of correspondence from Lucci’s counsel was taken out of context and used ‘in a deliberately misleading manner to imply a threatened abuse of judicial status that was not made.’ The board concluded that [he] had made deliberate misrepresentations to the domestic relations court regarding the conduct of both Lucci and Lucci’s counsel with the intent to deceive the court.”

The court adopted the board’s conclusions that [his] actions violated, among others,  the state disciplinary rules that prohibit an attorney from engaging in conduct involving fraud, deceit, dishonesty or misrepresentation; failing to disclose known material facts to a court in an ex parte proceeding, and making a statement that impugns the integrity of a judicial officer that the attorney knows to be false or with reckless disregard as to its truth or falsity.

In support of the court’s unanimous holding that an actual, rather than a stayed 12-month license suspension was the appropriate sanction for [his] misconduct, Justice McGee Brown quoted from the court’s 1995 decision in Disciplinary Counsel v. Fowerbaugh.

She wrote:  “[The attorney's] six violations of the Rules of Professional Conduct stemmed from a course of conduct that was replete with dishonest, deceptive, and disrespectful acts. When an attorney engages in such conduct and violates Prof.Cond.R. 8.4(c), ‘the attorney will be actually suspended from the practice of law for an appropriate period of time. A lawyer who engages in a material misrepresentation to a court ... violates, at a minimum, the lawyer's oath of office that he or she will not “knowingly employ or countenance any ... deception, falsehood, or fraud.” ... Such conduct strikes at the very core of a lawyer's relationship with the court and with the client. Respect for our profession is diminished with every deceitful act of a lawyer.’”  

Justice Terrence O’Donnell joined the court’s decision, but also entered a separate opinion, joined by Chief Justice Maureen O’Connor and Justice Evelyn Lundberg Stratton, in which he responded to an assertion by counsel for [the attorney] during oral argument that ex parte communications (communications between counsel for one party and the judge outside the presence of opposing counsel) were a common practice in proceedings before the Cuyahoga County Domestic Relations Court.

Justice O’Donnell wrote: “Participating in unauthorized ex parte communications is prohibited conduct subject to sanction. Our adversarial system of justice is dependent upon attorneys who respect, understand,  and adhere to the Ohio Rules of Professional Conduct and impartial jurists who strictly adhere to the Code of Judicial Conduct and who resist ex parte engagements. Counsel and judges are reminded of their obligation to adhere to the Ohio Rules of Professional Conduct and the Ohio Code of Judicial Conduct in this regard and to avoid the appearance of impropriety.

The opinion is linked here. (Mike Frisch)

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