Tuesday, January 2, 2018

Incomplete And Misleading

The Ohio Supreme Court imposed a stayed suspension for a misleading statement to a court.

This disciplinary matter originated with Cochran’s 2012 representation of Charles Muth. According to the parties’ stipulations, Muth and another person fired gunshots into the former home of Mohd Rawhneh in late 2011. After the shooting, police investigated Muth’s home and discovered a large marijuana-growing operation in the basement. State authorities later charged Muth with offenses relating to the shooting, and federal authorities charged him with offenses relating to the drug operation. Muth retained Cochran to represent him in the state case and Neal Atway, Cochran’s law partner, to represent him in the federal proceeding.

 Atway negotiated Muth’s federal sentence down from a mandatory five-year prison term to a much shorter sentence. Muth, however, did not want to serve any prison time, and therefore Atway approached the government’s attorney about finding a way to reduce Muth’s sentence even further. The government’s attorney indicated that Muth could obtain a better plea deal only by giving the government “usable information about public corruption” or if he could “give them a lawyer.”

According to the parties’ stipulations, Muth then began pleading with Atway and Cochran to “settle” any potential civil claims that Rawhneh could assert against Muth for his role in the shooting. As part of the settlement, Muth wanted a guarantee from Rawhneh that he would refrain from appearing at Muth’s sentencing hearings. Atway and Cochran told Muth that they could not make any such guarantee and advised him against attempting to settle with Rawhneh. But Muth insisted, and Atway and Cochran discussed potentially transferring Muth’s convenience store to pay for the settlement with Rawhneh.

Unbeknownst to Cochran and Atway, Muth had been working with the FBI and recording his conversations with his attorneys. In addition, the FBI had wiretapped Rawhneh’s phone and secretly recorded several communications between Rawhneh and Atway. The government ultimately claimed that Atway, Cochran, and Rawhneh were conspiring to extort money from Muth by leading him to believe that if Muth did not pay Rawhneh a settlement amount, Rawhneh would, among other things, offer damaging information at Muth’s sentencing. In February 2014, the government formally charged Cochran with conspiracy to violate the Hobbs Act, obstruction of justice, making a false statement to law enforcement, and other offenses. Cochran pled not guilty to all charges. After a lengthy trial in February and March 2015, a federal judge declared a mistrial due to juror misconduct. The judge later acquitted Cochran on two counts, but the government indicated an intent to retry him on three remaining charges from the indictment.

By October 2015, Cochran agreed to plead guilty to a new count in a supplemental information—misbehavior in the presence of the court in violation of 18 U.S.C. 401(1). Cochran admitted that he violated the statute by making two incomplete and misleading statements during his trial. For example, Cochran admitted that he misled the court by failing to disclose that he was present for a conversation in which Atway told Rawhneh that if Rawhneh came to Muth’s federal sentencing, Rawhneh would “hopefully * * * just sit in the back and keep his mouth shut.” At his disciplinary hearing, Cochran testified that he corrected the incomplete statements later in his trial, but he acknowledged that the statements were misleading when he made them. 

The court

Although Cochran’s incomplete and misleading statements undermined the integrity of the adjudicative process, we agree with the board that his actions were not as egregious as the attorney’s repeated misrepresentations in DeMarco. Rather, Cochran’s behavior was more similar to the isolated incident of misconduct in Niermeyer. And considering the absence of any aggravating evidence and the presence of several mitigating factors, we conclude that a stayed one-year suspension, as we imposed in Niermeyer, is the appropriate sanction.

(Mike Frisch)


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