Wednesday, November 28, 2012

Suspension For Disclosure Of Confidential Information In Ohio State Football Matter

From the web page of the Ohio Supreme Court:

The law license of Columbus attorney  Christopher T. Cicero has been suspended for one year for improperly disclosing  to former Ohio State University football coach Jim Tressel information that  Cicero obtained during consultations with a prospective client.

In a 5-2 decision announced today, the  Supreme Court of Ohio adopted findings by the Board of Commissioners on  Grievances and Discipline that Cicero violated two provisions of the Rules of  Professional Conduct by sending emails to Tressel in which Cicero disclosed  information he had received from Edward Rife, the owner of a tattoo parlor frequented  by OSU football players, who consulted with Cicero about possible  representation in a federal investigation of Rife’s alleged involvement in drug  trafficking.

In those emails, Cicero told Tressel  that a number of his players had apparently given or sold team memorabilia to  Rife in exchange for tattoos, and that dozens of those items, including Big Ten   championship rings and athletic jerseys  and shoes autographed by the players, had been confiscated by federal  authorities during a raid on Rife’s home in connection with the drug  trafficking investigation.

The board concluded that, although  Rife was ultimately represented by a different attorney, Stephen Palmer, and never  retained Cicero’s services, Cicero violated Rule 1.18 of the Rules of Professional  Conduct, which requires an attorney to maintain the confidentiality of  information gained through consultation with a prospective client. The board  also found that Cicero had engaged in conduct that reflected adversely on his  fitness to practice law.

Writing for the court, Justice Judith  Ann Lanzinger rejected Cicero’s argument that his interactions with Rife did  not support a finding that Rife was a prospective client.

Justice Lanzinger wrote: “We agree  with the board that relator has proved by clear and convincing evidence that  Rife was a prospective client of Cicero.   As the panel found, the two discussed the possibility of a client-lawyer  relationship; Cicero admitted this in his e-mails to Tressel, and Rife  testified as to the discussion.  Rife’s  testimony was corroborated by Palmer, who testified that Rife had told him soon  after the meeting with Cicero that Cicero had quoted him a fee.  Rife met with Cicero on April 15 to discuss  his case, and Cicero offered legal advice in response to Rife’s questions.”

“While we recognize that some  limitations on the rule’s protection to prospective clients may be justified,  those limitations do not come into play here.   Indeed, this case goes to the very heart of confidentiality between a  prospective client and an attorney.   Before obtaining representation, clients must meet with attorneys, and  attorneys often must obtain sensitive information before they can decide  whether to represent a client.   Prospective clients trust that their confidences will be protected when  they engage in an initial consultation with an attorney.  Cicero’s almost immediate dissemination of  the detailed information that Rife provided on April 15 directly violated that  trust.  This conduct violates  Prof.Cond.R. 1.18, as well as Prof.Cond.R. 8.4(h), which prohibits a lawyer  from engaging in conduct that adversely reflects on the lawyer’s fitness to  practice law.”

In setting the sanction for Cicero’s  misconduct, the court noted the mitigating factor that Cicero has an excellent  reputation among attorneys and judges for professional integrity and  competence. It also noted the aggravating factors that Cicero was previously  suspended for misconduct in 1997, that his primary motive for disclosing Rife’s  confidential statements to Tressel was self-aggrandizement, that the board  found some of his hearing testimony to be disingenuous and not credible, that  he refused to acknowledge the wrongful nature of his conduct, and that his  disclosure of Rife’s involvement in the player memorabilia transactions exposed  Rife and his family to criticism and harassment because of the negative impact  of those events on the OSU football program.

Noting that this is the first case in which the court has  addressed a violation of Prof.Cond.R. 1.18 since its adoption in 2007, Justice  Lanzinger compared Cicero’s misconduct to several similar cases and determined  that a one-year license suspension was commensurate with his offense and the  multiple aggravating factors found by the board.

Justice Lanzinger’s opinion was joined by Chief Justice Maureen  O’Connor and Justices Paul E. Pfeifer, Robert R. Cupp and Yvette McGee Brown.

Justice Evelyn Lundberg Stratton entered a dissent, joined by  Justice Terrence O’Donnell, in which she agreed with the rule violations found  by the majority but said she would impose a stayed six-month license suspension  as the appropriate sanction.

Justice  Stratton wrote that in her view “Cicero’s intentions were not for personal  aggrandizement or personal gain, as found by the majority, but were to alert  the coach about misconduct by his players that could affect the team.  His request that such information be held  confidential does not support the notion that he was trying to seek fame.  That conclusion is contrary to the content of  the e-mails.  Therefore, I respectfully  dissent.”

The opinion is linked here. (Mike Frisch)

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