Monday, January 22, 2018

"The Bicycle Incident" Reaches The Ohio Supreme Court

An argument worth watching this Thursday before the Ohio Supreme Court

Columbus Bar Association v. John. J. Okuley, Case no. 2017-1417
Franklin County [Disciplinary cases]

The Board of Professional Conduct is recommending that Columbus [attorney] John J. Okuley be suspended for two years, with one year stayed, based on the lawyer’s criminal conviction that stemmed from a physical confrontation with a bicyclist and physician, who witnessed the bike accident.

The board concluded that Okuley violated several rules governing the conduct of Ohio attorneys for his behavior during what the board labeled “the bicycle incident,” and Okuley’s subsequent behavior when the Columbus Bar Association investigated the matter.

Accident with Bicyclist Leads to Criminal Conviction

In April 2015, Okuley was driving on a Columbus residential road near a lengthy bike trail. Parts of the trail were connected through portions of residential streets. Bicyclist Eric Hansen was behind Okuley’s vehicle on a narrow street where part of the road was blocked by a delivery truck on one side and a garbage truck on the other. Hansen rode his bike between the delivery truck and Okuley’s car, passing it on the passenger side.

According to various versions of the incident given by Okuley, Hansen either smacked the side of Okuley’s car while passing, hit it with the bike pedal, or hit the car with the bike. Okuley claimed that Hansen intentionally struck his car. Hansen countered that he never made contact with the vehicle as he passed and that Okuley turned his car wheels to the right and moved in Hansen’s direction as he was passing.

Okuley then began following Hansen from one street to another. Hansen indicated that, at times, Okuley’s car was just inches from his rear wheel and that he was racing his engine. Okuley then passed Hansen and suddenly slammed on his brakes. Hansen testified that it was impossible for him to avoid colliding with the vehicle, and the bike hit the rear of the lawyer’s car. The collision knocked Hansen to the ground, bent the handlebars of his bike, and damaged his front brakes.

The incident was observed by John Bahling, a medical doctor, who was driving and stopped for traffic. He testified that it appeared that Okuley was trying to run Hansen off the road, and that he appeared very angry, revved his engine, leaned forward on the steering wheel, and yelled and gestured at Hansen when he passed. He said Okuley slammed the brakes, and it prompted Hansen to smash into the rear of the car. Bahling said Okuley got out of the car, got close to Hansen’s face, and began yelling and accusing Hansen of hitting his car on purpose.

Bahling parked with the intent on checking on Hansen. He began video recording Okuley with his cell phone with the hope it would defuse the situation, but when Okuley noticed Bahling was recording, he turned away from Hansen, struck Bahling, and attempted to grab his phone. Okuley got in his car, drove a short distance, and stopped, and Bahling recorded it. Okuley returned on foot, where Hansen was speaking to a 911 dispatcher when Okuley demanded Bahling give him his phone “for evidence.” He tried to grab the phone as Bahling tried to record the encounter.

A second witness, Daniel Walker, arrived and watched the encounter escalate. Walker tried to separate Okuley and Bahling and, during the scuffle, the phone fell on the street. Okuley walked over the phone and stomped on it. He grabbed the phone and walked up to a porch of a nearby home and yelled to Bahling that he didn’t have any evidence. The second recording, which included the attempt to grab the phone, was destroyed.

Two police officers interviewed the four men. Okuley’s report of the incident to the officers was significantly different than the others involved. He claimed Hansen purposely ran into the back of the car and that Bahling’s phone was damaged when it fell to the ground. In subsequent proceedings, Okuley characterized Bahling as the aggressor and said he was attacked from behind by the doctor without any provocation.

Charges Filed Against Okuley
A week later, the city of Columbus charged Okuley with criminal damaging, a second degree misdemeanor. After scheduling errors and requests for continuances, a trial date was set. Okuley appeared for the trial, but when it didn’t go forward at the scheduled time, he left the courthouse. The prosecuting attorney assumed Okuley left to wait for his attorney to arrive, and the prosecutor stated that witnesses were present and the city was prepared to try the case that day. The judge issued a warrant for Okuley’s arrest the next day, and Okuley was arrested on Oct. 9. Okuley then filed a motion to have the charges dismissed on the grounds that the city failed to timely try the case.

A second trial date was set, and Okuley asked for a continuance, which was granted. He then pleaded no contest and was found guilty of criminal damaging. He was sentenced to 90 days in jail, which was suspended, order to make restitution of $950 to Bahling for damaging his phone, fined $100, and placed in community control.

Two months later, Bahling filed a civil lawsuit against Okuley, and Okuley filed a counterclaim against Bahling. The two settled the case, with Okuley’s insurance company paying Bahling $5,000.

Bar Association Investigates 
The Columbus Bar Association mailed Okuley a letter in March 2106 asking him to provide information regarding his February conviction, and Okuley didn’t respond. He testified later that he didn’t recall seeing the letter and may have thrown it out. He received a second letter by certified mail later that month, and sent a delayed response, indicating he was in a severe car accident and couldn’t work full-time. He eventually agreed to a deposition in August, where again he accused Hansen of intentionally hitting his car and Bahling of attacking him. 

The hearing panel found his allegations against the others were untruthful. The panel concluded that Okuley violated several conduct rules, including engaging in conduct that reflects adversely on a his fitness to practice law; obstructing a party’s access to evidence; disobeying obligations of a court; knowingly making false statements in a legal proceeding; and offering evidence he knows to be false.

Board Considers Sanction 
The board noted that Okuley entered a three-year contact with the Ohio Lawyer’s Assistance Program (OLAP) in July 2017 where he agreed to continue treatment for depression, stress, and adjusting to his injuries from his auto accident. The board didn’t give his treatment any weight as a mitigating factor because it found no evidence that any disorder Okuley suffered contributed to the bicycle incident or his subsequent behavior. Although the three-member panel recommended a one year suspension, with six months stayed, the board concluded that Okuley’s actions merited a greater sanction. The board recommended the Court suspend Okuley for two years, and that one year be stayed if he maintains compliant with his OLAP contract and doesn’t commit anymore misconduct.

Okuley Challenges Sanction 
Okuley argues for the lower penalty recommended by the panel, and notes that his violations don’t involve any attorney-client relationships.

Okuley also argues the board doesn’t believe he took accountability for his actions because his version of the events differs than those from Hansen and Bahling. He counters that his testimony was “likely influenced by the criminal and civil proceedings.” He notes his comments were made in defense of the charges against him and that, once he heard Walker testify to stomping on the phone, he didn’t object to Walker’s version of the events. He argues that the board should have given more weight to him adopting Walker’s version as an acknowledgment of his wrongdoing. The combination of the lack of harm to a client and his adoption of Walker’s testimony warrant the lower sanction, he maintains.

Bar Association Agrees with Board
The bar association argues that Okuley faced no criminal charges when lied to bar investigators about the incident and that he refuted Bahling’s charges when he filed a counterclaim in the civil lawsuit. Those matters weren’t active cases when the he continued to lie during the disciplinary hearings, and he shouldn’t get credit for his behavior, the board argues.

The association also maintains that Okuley’s statement that he didn’t “have reason to disbelieve” Walker was not “remotely close to accepting responsibility for smashing Dr. Bahling’s telephone and for lying about it for years.” It argues the board gave the proper weight to all the factors in the case, and supports the two-year suspension with one year stayed.

 Dan Trevas

Our prior coverage is linked here. (MIke Frisch)

https://lawprofessors.typepad.com/legal_profession/2018/01/an-argument-worth-watching-this-thursday-before-the-ohio-supreme-court-columbus-bar-association-v-john-j-okuley-case-no.html

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Comments

The YouTube video of the incident: https://youtu.be/lXZRGkQiZ2o

Posted by: William Crosby | Jan 22, 2018 2:21:17 PM

Link to the argument: https://www.ohiochannel.org/video/case-no-2017-1417-columbus-bar-assn-v-okuley

Posted by: Mary G. | Jan 28, 2018 9:33:37 PM

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