Thursday, October 11, 2018

Secret Tape

The Ohio Supreme Court's Dan Trevas summarizes a decision

The Ohio Supreme Court today indefinitely suspended a Cleveland attorney whose client secretly recorded a conversation of the attorney disparaging the opposing lawyer, revealing his attempts to be uncooperative in the case, and telling the client to lie in a deposition.

In a per curiam opinion, the Supreme Court found Steven J. Moody committed multiple violations of the rules governing the conduct of Ohio lawyers. The violations all stem from the representation of a former PNC Inc. employee in an employment-discrimination case. The Court noted that some of Moody’s behavior amounted to gender disparagement, and that his statements to his client “raise questions about his integrity and his ability to conduct himself in a manner that engenders respect for the law and the profession.”

Chief Justice Maureen O’Connor and Justice Terrence O’Donnell, Sharon L. Kennedy, Patrick F. Fischer, and Mary DeGenaro joined the majority opinion. Justices Judith L. French and R. Patrick DeWine dissented and indicated they would have suspended Moody for two years.

Attorney Stymied, Inconvenienced Opponent
In March 2015, Elton Barrios hired Moody to represent him in his case against PNC. PNC hired Siobhan M. Sweeney of Boston to represent the company. Sweeney requested information from Moody during the discovery process and sent a notice to him to take Barrios’ deposition in October 2015.

Moody asked Sweeney for an extension to reply to the information request, and it was granted. Moody failed to reply to the new deadline. Sweeney rescheduled Barrios’ deposition for November, and four days before she traveled from Boston to Cleveland, she reminded Moody of the appointment. Neither Moody nor Barrios, who was not informed of the deposition, appeared, and Moody did not notify Sweeney until after the scheduled deposition time that he had a scheduling conflict and could not attend.

Based on Moody’s repeated failure to comply with discovery, Sweeney filed a motion to compel Moody to cooperate, and a federal magistrate overseeing the case ordered Moody to send interrogatories from Barrios to Sweeney by late November and for Barrios to appear for a deposition in mid-December.

Client Records Meeting with Lawyer
Barrios was first informed of PNC’s attempt to take a deposition a full month after the third attempt was scheduled and nine days before it occurred. Two days before the deposition, Moody met with Barrios to prepare him. Barrios secretly recorded the conversation in which Moody stated that he wanted to be evasive with Sweeney and frustrate her. He told Barrios he would agree to her information requests then ignore them, and he admitted that he lied about having a conflict when Sweeney flew into town for the deposition.

Moody told Barrios that Sweeney was “trying to play games, because I played a game with her.” He told Barrios not to discuss that with Sweeney during the deposition. Moody also told Barrios that Sweeney might ask about the previously scheduled depositions and that, if asked, Barrios should say that Moody made him aware of them.

During his conversation with Barrios, Moody made gender-disparaging comments about Sweeney and told his client he was attempting to make Sweeney “look bad” in front of the court handling the case.

Barrios later said he was confused and worried about lying under oath to cover up Moody’s activities. He fired Moody and hired another attorney to represent him.

Bar Association Files Complaint
The Cleveland Metropolitan Bar Association filed a complaint against Moody with the Board of Professional Conduct, alleging several rule violations related to his representation of Barrios.

During a disciplinary hearing before a three-member board panel, Moody admitted to making the statements that Barrios recorded, but alleged that Barrios did not record the entire conversation. Moody stated that he also recanted some of his damaging statements in the conversation.

He testified he was only “puffing” with Barrios about his tactics with Sweeney to build up Barrios’ confidence. He also stated that he failed to comply with Sweeney’s discovery requests because he had transitioned from a brick-and-mortar office to a “virtual office” in 2015 and was keeping track of all his legal communications on his cellphone.

Barrios testified, though, that he recorded the entire conversation and that Moody never disavowed any of his admissions. Barrios stated he was “kind of mind-boggled” by Moody’s request.

The board found Moody committed multiple rule violations including failing to act with reasonable diligence while representing his client; not keeping his client informed about the case; making false statements to a court; intentionally failing to comply with discovery requests; disobeying court rules; and engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.

The board recommended that the Supreme Court indefinitely suspend Moody. Moody objected, arguing a lesser sanction was warranted.

Court Weighs Punishment
When considering a proposed sanction, the Court examines aggravating circumstances that could increase the punishment for a lawyer and mitigating factors, which could lead to a reduced penalty. The Court noted that Moody had no prior disciplinary record, but it also concluded that he acted with a dishonest and selfish motive, engaged in a pattern of misconduct, committed multiple violations, and refused to acknowledge the wrongful nature of his behavior.

The board noted in its report to the Court that Moody refused to accept any responsibility or show remorse for his conduct, tried to shift some of the blame onto Barrios, and disparaged Sweeney.

Moody argued that the hearing panel improperly weighed the evidence in the complaint and should have granted more weight to his testimony about losing track of the discovery because of his move to a virtual office. He also maintained that he advised Barrios to tell the truth.

The opinion noted that Moody was asking the Court to believe his arguments over those of Barrios as well as Moody’s own prior admissions. The Court stated it had “no trouble” understanding why the hearing panel found Barrios’ version of the conversation to be more credible than Moody’s.

“Based on Moody’s admissions to his client — and the reasons underlying the board’s findings that his testimony attempting to retract those admissions was simply not credible — there is ample evidence to support each of the board’s findings of misconduct,” the Court stated.

The Court wrote that regardless of whether Moody’s statements to Barrios were true, they raise questions about his integrity, and that lawyers are expected to maintain a degree of “personal and professional integrity that meets the highest standard.” The Court determined the indefinite suspension was the appropriate sanction and did not specify any conditions for Moody to meet to be reinstated.

2017-1738. Cleveland Metro. Bar Assn. v. Moody, Slip Opinion No. 2018-Ohio-4071.

Video camera icon View oral argument video of this case

(Mike Frisch)

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