Thursday, July 15, 2021

Resignation Accepted Over Dissent: Did Transparency Lose?

The Ohio Supreme Court has accepted the resignation of an attorney who was the subject of our prior coverage

 complaint recently filed by Ohio Disciplinary Counsel alleges a pattern of sexual advances to clients and a court employee. 

The lengthy charges make for painful reading. 

The complaint notes

Since at least 2015, respondent has not maintained a law office. and regularly meets with clients at his home or in secluded places [such as the county law library]

The court employee was allegedly subjected to comments of a sexual nature and unwanted touching. 

In one instance when she was wearing a skirt, he allegedly "grabbed [her] knee and ran his hand up to [her] mid-thigh."

She filed a civil complaint against the City of Wilmington (where he served as an acting prosecutor and judge) and received a financial settlement.

A person who he had known for 30 years consulted him about a divorce. He allegedly offered her $100 (which she needed for a medical procedure) to clean his home, "forcibly kissed her" and offered to represent her for free if she cleaned in the nude.

He then allegedly contacted her multiple times over a two week period, called her "gorgeous" and sought sexual relations. 

He continued to represent her, made a second offer of free representation for naked cleaning and made further sexual advances.

She made a police report but no charges were filed.

He allegedly subjected another client in a court-appointed felony drug case to romantic and sexual advances.

She contacted the police and wore a wire that recorded their conversations, including "I would like to see you naked."

The Sheriff's Office advised the county prosecutor of the advances. The issue of potential conflict was brought to the judge's attention and new counsel was appointed.

Another client was a Facebook friend charged with theft. They had no prior personal or professional relationship. 

He allegedly reached out to her on Facebook after he learned of the charges and offered his assistance.

She had no permanent residence and stayed with friends on a "night to night" basis.

He allegedly met with her at the Hidden Carryout and gave her $70 to "help her out" which she interpreted as an offer to exchange sex for legal services.

She told him she was "not that kind of girl."

After he let that client use the washer and dryer in his home, he allegedly tried to put his hand down her pants. 

He allegedly communicated  by Facebook Messenger with another client charged with telephone harassment. He called her "dear," "gorgeous," and "babydoll."

Their alleged communications and interactions are recounted in detail and include his suggestion of Carribean trip together.

When she tried to steer the conversation back to her case, he replied he preferred 

talking about the potential for an "us" at the moment.

They had dinner; he paid for the meal.

He invited her to the pool; she declined.

The client had her bond revoked. The attorney allegedly failed to contact her or prepare for trial.

He allegedly pressured her to plead guilty to one charge. 

 A client in a dependency case allegedly had sexual intercourse with him in his home.

He allegedly told her that "he loved her and that he wanted to marry her" and that the sex "was in lieu of attorneys fees."

When the client was charged with OVI (driving under the influence), he allegedly again had sex with her in lieu of a fee.

The News Journal reported that he was removed from a homicide case in March 2020

The attorney for a suspect in a recent homicide case has been removed after police and court officials say that attorney was apparently under the influence of alcohol during a meeting.

Attorney Richard Federle Jr., 52, was removed as the appointed attorney for murder suspect Corey Ruffner, 22, after Federle was allegedly under the influence at an arraignment hearing on Feb. 28.

Ruffner requested — in a letter to Clinton County Common Pleas Judge John “Tim” Rudduck — the removal on Wednesday due to concerns he had about Federle.

When reached by phone for comment Wednesday, Federle told the News Journal, “I am not in a position to comment at this time.”

According to a report by Wilmington Police Det. Scott Baker, during the hearing he noted that, as he was speaking with Federle, “I detected a strong odor of an alcoholic beverage coming from his breath. I also noticed his eyes were red, bloodshot and glassy.”

Baker also reported that Federle’s movements were “slow, off-balance and uncoordinated” and his speech was “slow and slurred.”

Baker reported that he spoke with the court bailiff and magistrate who also “had a concern for Richard Federle being under the influence of alcohol.”

Justice Fischer dissents from the decision

As I have expressed before, writing a case-specific dissent in an attorney-resignation-with-disciplinary-action-pending case is challenging due to the confidentiality concerns involved. In re Resignation of Wiggins, ___Ohio St.3d___, 2021-Ohio-1347, ___ N.E.3d. ___, ¶ 21 (Fischer, J., dissenting); In re Resignation of Leone, 160 Ohio St.3d 1227, 2020-Ohio-2997, 155 N.E.3d 950, ¶ 22
(Fischer, J., dissenting), citing Gov.Bar R. VI(11)(B). Nevertheless, I must respectfully dissent from this court’s decision to accept the application for resignation of Richard Lawrence Federle Jr.

Many of these resignation-with-disciplinary-action-pending cases thwart the concept that government should be as transparent as reasonably possible. Wiggins at ¶ 22 (Fischer, J., dissenting); Leone at ¶ 26 (Fischer, J., dissenting). Because these cases involve sealed reports by disciplinary counsel, they are generally enshrouded in a cloud of secrecy that keeps the public, the bench, and the practicing bar ignorant of the reasons for the request to resign with discipline pending. See Wiggins at ¶ 22 (Fischer, J., dissenting); Leone at ¶ 26 (Fischer, J., dissenting). This is problematic, especially when the allegations against an attorney describe a disturbing pattern of predatory behavior toward a vulnerable population.

 In this case, after reading the report provided by disciplinary counsel, I strongly believe that the court should reject Federle’s application. Though I cannot comment on all the matters identified by disciplinary counsel in the report, I can point to public records that provide a glimpse of the allegations against Federle.  Federle filed his application to resign from the practice of law after disciplinary counsel filed a disciplinary complaint against him. The complaint identifies five instances in which Federle allegedly used his position as an attorney to solicit sex from and/or romantic relationships with female clients, three of whom he represented in criminal cases. See Complaint filed Oct. 30, 2020, Disciplinary Counsel v. Federle, Bd.Prof.Cond. No. 2020-063, available at https://www.supremecourt.ohio.gov/bpccm/Case?caseId=02bb083d-9b44-44f4- 941a-e56ca44ded27 (accessed July 8, 2021) [https://perma.cc/NY22-HFEE]. While Federle denies many of the allegations against him in his answer, he admits to having had some inappropriate conversations with clients, but the only conversations he admits to are those that were documented or recorded. See
Answer filed Nov. 20, 2020, id., at ¶ 14-15, 20, 31-33, 35. The allegations against Federle are serious. This court has explained that some of the most disturbing attorney-discipline cases are those “in which a lawyer has had sex with a client while defending the client against criminal charges * * * or has accepted sex in lieu of fees.” Disciplinary Counsel v. Krieger, 108 Ohio St.3d 319, 2006-Ohio-1062, 843 N.E.2d 765, ¶ 29. “The abuse of the attorney-client relationship [in this way] not only harms the dignity of the client, whose body and trust in her lawyer have been violated, but it also impugns the legal system as a whole.” Disciplinary Counsel v. Sarver, 155 Ohio St.3d 100, 2018-Ohio-4717, 119 N.E.3d 405, ¶ 29. If these serious allegations against Federle are true, this court does no favors to the victims, the public, or to Federle in accepting his resignation.

I understand that accepting Federle’s resignation will immediately remove his ability to use his position as an attorney to harm more women and may thereby protect the public faster than going forward with disciplinary proceedings. But I do not think that this court should favor a process that is quick over a process that is designed to obtain truth and dispense justice that more effectively protects
the public. The disciplinary proceedings governed by this court may provide the victims, the public, and Federle with much-needed transparency about the entire situation. While the alleged victims would bear the heavy burden of testifying before a hearing panel, I believe that they should at least have the opportunity to have their voices heard by the public and by this court. The public should know
what this court and the numerous volunteers and employees participating in this court’s disciplinary process are doing to keep the public safe from attorneys who are alleged to have violated the Rules of Professional Conduct in perturbing manners. And at least in the disciplinary process, this court has the opportunity to provide help to the attorney should an addiction or other issue be the root cause of the problem. See Gov.Bar R. V(12) and (21). By accepting Federle’s resignation, the court simply washes its hands of the problem without providing any real resolution.

Furthermore, the allegations against Federle have reached national news, as this story was reported by the American Bar Association in an article available on its website. Debra Cassens Weiss, Lawyer is Accused of Offering Free Legal Services If Woman Cleaned His Home in the Nude, ABA Journal (Nov. 5, 2020), https://www.abajournal.com/news/article/lawyer-is-accused-of-offeringlegal-services-if would-be-client-cleaned-his-home-in-the-nude (accessed July 8, 2021) [https://perma.cc/W2S3-S6W2]. I point out this article to emphasize that by not allowing Federle’s disciplinary case to go through the full disciplinary process, this court leaves the public with unanswered questions about an attorney who allegedly solicited sex from clients. I believe that by accepting Federle’s resignation, this court leaves the public with the idea that it does not investigate these types of allegations and that it does not take this entire situation seriously. Moreover, accepting this resignation keeps the public in the dark, silences the alleged victims, and divests this court of its jurisdiction to discipline Federle for any misconduct he might have committed while practicing law. Such discipline would be designed to protect the public and perhaps help Federle.

Transparency in cases of attorney discipline that involve serious allegations of violations of the Rules of Professional Conduct is essential for the public’s protection. By permitting resignation in this case, this court does a disservice to the public and undermines the public’s confidence in our legal system. Thus, I must respectfully dissent.

Agreed. (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2021/07/the-ohio-supreme-court-has-accepted-the-resignation-of-an-attorney-who-was-the-subject-of-our-prior-coverage-acomplaintrecen.html

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Comments

Justice Fischer described in more detail his concerns about the practice of routinely accepting resignations with discipline pending in In re Resignation of Leone, 160 Ohio St.3d 1227, 2020-Ohio-2997. His concerns were (1) Transparency (“[T]he resigning attorney would just move on to some other occupation and the public would never know of that now-resigned attorney’s criminal-like conduct.”); (2) Inefficiency (it is true that accepting resignations gets bad lawyers out of the system sooner than they would otherwise be removed, but “only because we have created a system in which it takes much, much too long to resolve an attorney-discipline case.”); (3) Client restitution (the Court is never informed about the resigning lawyer’s financial situation, so it lacks the necessary information to make an informed decision about accepting the resignation when there is restitution owed to an aggrieved client); (4) Inappropriate timing (because an attorney can offer to resign very late into the disciplinary process, it is not always the case that sufficient administrative resources are saved to outweigh the other concerns).

Last I looked into this, around half of the states allowed resignations with discipline pending. But these are legitimate concerns, especially with regard to transparency, and I wonder if—especially in a climate where the public is demanding greater accountability for people in positions of authority—the practice will wane.

Posted by: Kevin J. Vogel | Jul 15, 2021 7:06:43 AM

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