Tuesday, September 13, 2016

On The Qui Vive In Ohio

I have now had the opportunity to review the decision of the Ohio Supreme Court described by Dan Trevas in the below post.

I agree with the majority on policy grounds. If the Ohio rules of discipline accord quasi-double jeopardy status to grievance panel dismissals, the rules defeat the purpose of bar discipline - protection of the public from unethical lawyers.

The 4-3 majority holds that a determination by a panel to decline to authorize charges does not tie the hands of Disciplinary Counsel

Regardless of whether the grievances against Kramer alleged the same misconduct, nothing in the rules currently limits the authority of disciplinary counsel to investigate a grievance that alleges attorney misconduct. To the contrary, Gov.Bar R. V(9)(C) specifically requires disciplinary counsel to review any matter that comes before it and authorizes it to investigate any matter...

the dissent’s distortion of our decision is based on a mischaracterization of the facts and the rules. Quite simply, nothing in the rules precludes disciplinary counsel’s review and investigation of the second grievance that led to the board’s disciplinary recommendation in this case. Kramer and the dissenting justices essentially request that the Rules for the Government of the Bar be revised. To do so, the court must follow its rulemaking procedures pursuant to its constitutional authority to “make rules governing the admission to the practice of law and discipline of persons so admitted.” Ohio Constitution, Article IV, Section 5(B). And any change would not affect our decision today, which is decided based on the current status of the rules.

In response to Justice Kennedy's dissent

 Lawyers on the “qui vive” pursuant to the dissent’s cry are no doubt aware that judicial decision-making based on the current status of the rules is required for the uniformity, consistency, and predictability that are hallmarks of an independent judiciary. The dissent attempts to frame its indefensible stand as an interpretation of the rules, but it reads into the rules a limitation that does not exist. The dissent’s approach circumvents the stability inherent in the consistent application of the Rules of Professional Conduct on a case-by-case basis. This does our profession no good.

Because the rules, as they exist today, do not restrict disciplinary counsel’s authority to investigate the anonymous grievance that is the basis of this disciplinary action, nothing precludes the imposition of the board-recommended sanction here.

From the dissent

Lawyers across Ohio, be on the qui vive! Certified grievance committees be damned! Like the sinners in Dante Alighieri’s Canto VII of the Divine Comedy: Inferno, the lead opinion’s interpretation of our rules would subject members of the Ohio bar to the prospect of multiple disciplinary proceedings in connection with the same alleged misconduct involving the same alleged victim.

(Mike Frisch)


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