Monday, May 10, 2021

Ohio Will Consider Sanction For Attorney's Comments About Judicial Decisionmaking

Dan Trevas has a summary of a discipline matter scheduled for oral argument this Wednesday before the Ohio Supreme Court

Cleveland Metropolitan Bar Association v. John A. Morton, Case No. 2020-1520
Cuyahoga County

The Board of Professional Conduct recommends a seasoned Cleveland-area attorney receive a fully stayed one-year suspension for alleging in court documents that the decisions by Ohio Supreme Court justices and Cuyahoga County appellate judges in two of his cases were guided by politics and not the law.

J. Alex Morton, who was admitted to practice law in 1975, argues his comments about the jurists are constitutionally protected free speech and are accurate. He maintains the board has no right to sanction him.

The Cleveland Metropolitan Bar Association, which brought the complaint against Morton, objects to the proposed fully stayed suspension. The bar association maintains Morton’s ethical rule violations damage public confidence in the judicial system and that he should be barred from practicing law for at least six months.

Property Tax Case Decisions Prompt Terse Remarks
Morton represented a property owner in the case of Moskowitz v. Cuyahoga Cty. Bd. of Revision. In 2017, the Ohio Supreme Court rejected Morton’s arguments regarding the property’s valuation.

Morton also represented Fred Schwartz, who purchased property in Cleveland Heights in 2011 for $5,000 and was holding the property as a trustee. The county assessed the value at $126,800 for the 2011 tax year. Morton filed an objection on Schwartz’s behalf to seek a property tax reduction.

The reduction was denied by the county and then again by the state Board of Tax Appeals. However, the Supreme Court in 2015 reversed the decision and ordered the property tax to be assessed based on the $5,000 sales price. Afterward, the county again began increasing the property value. Morton filed a second lawsuit for Schwartz, arguing the process used by the board of revision to deny his appeal was incorrect. Schwartz appealed to the Eighth District Court of Appeals, which affirmed the county’s assessment process.

The Eighth District cited the Supreme Court’s Moskowitz decision, stating Schwartz was making the same argument that had been rejected in Moskowitz.

Morton sought to appeal Schwartz v. Cuyahoga Cty. Bd. of Revision to the Supreme Court. He submitted a required memorandum in support of jurisdiction in January 2019, urging the Supreme Court to hear the appeal.

In the memo, he derided the Eighth District judge for relying on the Moskowitz opinion. He wrote the Moskowitz decision was based “upon politics, not law,” and stated the “political goal of the Moskowitz Court was to maximize government revenue, at the expense of the taxpayer, and his or her Constitutional right to limited taxation.” He made additional comments about justices and asserted that Moskowitz was wrongly decided by the Supreme Court.

The memo further chided the Eighth District judges for citing another Board of Tax Appeals decision, stating, “Only politicians committed to maximizing the revenue of their political cronies could reach the same conclusion.”

The Supreme Court ruled in March 2019 not to accept the Schwartz appeal.

Lawyer Disputes Misconduct Claims
The Cleveland bar association filed a complaint with the Board of Professional Conduct based on Morton’s Supreme Court submission. The association claimed Morton violated three rules governing the ethical conduct of Ohio lawyers, including making statements concerning the integrity of judicial officers with reckless disregard as to their truth.

In August 2020, prior to a hearing by a three-member board panel, Morton sought to dismiss the complaint, arguing that the board lacked jurisdiction to consider the matter. Morton maintained that no “grievant” filed a grievance against him, and since none of the judges or justices he allegedly disparaged made the complaint, the bar association couldn’t file a complaint with the board.

The board rejected his claim and found Morton voiced “undignified and discourteous statements about judges and justices who did nothing more than rule contrary to his client’s position.” The panel concluded he violated three rules. However, the board noted that the comments were restricted to one pleading in one case, and that it is unlikely the comments would be seen by the general public. Because Morton had an otherwise “unblemished” legal career, the board suggests that a fully stayed one-year suspension would serve as a warning to him, and remind him of his “obligation to protect the integrity of the judicial system.”

Parties Object to Sanction
Both Morton and the bar association submitted objections to the Supreme Court regarding the proposed sanction. Morton reiterates his contention that the bar association has no right to bring the case against him, and it should be dismissed. The bar association counters that Court rules empower it to “investigate any matter filed with it or that comes to its attention,” and to file a complaint. The bar association states the Office of Disciplinary Counsel brought Morton’s Supreme Court filing to its attention, and the referral was based on a grievance made to the disciplinary counsel.

Morton maintains the bar association wasn’t “injured” by his memo and has no basis to pursue disciplinary action. The bar association maintains it and all members of the legal profession are harmed when a lawyer violates the rules by making false claims about the integrity of judges and justices. The bar association notes that Morton admits he never asked the jurists if their decisions were motivated by politics, and so the comments were made with reckless disregard for the truth.

Morton rejects the board’s conclusions, stating the board authored a report with “very little substance.” He argues the board’s report is short because it didn’t properly review his explanation of the cases and the clear evidence that showed the judges and justices didn’t follow the law when deciding the property tax cases. He maintains his detailed explanation about the cases provide ample circumstantial evidence of the truth of his statements.

Morton also notes that Ohio judges are elected officials and knowingly subject themselves to public scrutiny. If they can’t tolerate public criticism, they shouldn’t serve as government officials, he states. He concludes that his memo included his opinions, which are protected free speech by the Ohio and U.S. constitutions.

The bar association maintains prior Court rulings indicate lawyers have no constitutional protection to make reckless statements about the integrity of judicial officers without any factual basis. The bar association asserts that Morton’s violations and confrontational conduct during the disciplinary proceedings merit a six-month actual suspension rather than a fully stayed suspension.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2021/05/ohio-will-consider-sanction-for-attorneys-comments-about-judicial-decisionmaking.html

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