Wednesday, November 10, 2021

It's Business, Not Personal

An oral argument scheduled this morning before the Ohio Supreme Court

Disciplinary Counsel v. Hon. Thomas M. O’Diam, Case No. 2021-0971
Greene County

A Greene County probate court judge faces a six-month suspension without pay because of his treatment of a man who publicly questioned whether the judge should preside over cases in which his daughter represents a party in the matter.

Prior to his 2013 appointment as Greene County probate judge, Thomas O’Diam practiced estate planning and probate law for 27 years as a member of the O’Diam, Steck & Sove Law Group. While he was still in private practice, Judge O’Diam’s daughter, Brittney, was admitted to practice law and joined the firm.

After Judge O’Diam took the probate court bench, the firm reorganized and arranged a plan to buy out the judge’s interest through payments that ended in 2021. Brittney continued to work at the new firm and gained an ownership interest.

Daughter Represents Family in Probate Matter
In 2018, Carolee Buccalo died and her granddaughter, Yvonne Martin, was named executor of Buccalo’s estate. Martin hired Brittney to represent her in administering the estate in the probate court in which Judge O’Diam is the sole judge.

After opening the estate, Brittney presented waivers of disqualification to participants in the Buccalo estate, including three that required the signature of Grant Buccalo, a son of the deceased.

All the waivers stated that “circumstances exist that may disqualify Judge O’Diam from presiding over this proceeding” and that his prior law firm is indebted to the judge under a stock-redemption agreement. The waivers also stated that Brittney O’Diam is the daughter of Judge O’Diam, and noted those signing “acknowledge that these circumstances may lead someone to reasonably question Judge O’Diam’s impartiality,” but that the signers “trust that Judge O’Diam will act impartially and fairly.”

Buccalo signed the waivers, and Brittney worked on probating the will.

Judge, County Commissioners, and Beneficiary Intersect
While the Buccalo probate matter was pending, Judge O’Diam was engaged in a legal dispute with the Greene County Commissioners regarding courthouse space for the probate court. The matter escalated to the Ohio Supreme Court, which in early May 2019 ruled that Judge O’Diam couldn’t force the county to designate that a courtroom be reserved exclusively for probate cases three days a week.

About two weeks after the Supreme Court decision, Buccalo called the county commissioners and requested to speak on matters at their weekly meeting, which was granted. At the meeting, Buccalo expressed his belief that Judge O’Diam should recuse himself from cases in which “family members” represent parties. Buccalo stated that “justice depends on the appearance as well as the reality of fairness in all things. Otherwise, it erodes public confidence in the legal system.”

Buccalo spoke for about two-and-a-half minutes, stating he wanted to make sure the commissioners were aware of the practice. He didn’t specifically mention’s his mother’s estate case or express any concern about his own involvement with Judge O’Diam. He concluded by stating he intended to file a grievance against the judge with the Office of Disciplinary Counsel.

Judge O’Diam became aware of Buccalo’s comments and requested a recording of the meeting. Buccalo submitted his grievance, which the disciplinary counsel’s intake division dismissed without investigation.

Judge and Daughter Grill Beneficiary on Stand
Judge O’Diam spoke to his daughter and arranged a status conference on the estate. The judge ordered Martin, Buccalo, and three other beneficiaries of the will to appear and stated that failure to appear “will be deemed contempt.”

Judge O’Diam discussed the matter in advance with Brittney, and each prepared exhibits and questions for the conference. Buccalo wasn’t informed by the court about the conference’s purpose and didn’t know he would be called to testify under oath. Buccalo didn’t request his lawyer to appear at the proceeding.

At the conference, Judge O’Diam explained a “very disturbing incident” had taken place and it needed to be resolved that day. He played the recording of Buccalo at the commission meeting. Judge O’Diam then placed Buccalo on the witness stand and proceeded to question him for more than an hour.

Judge O’Diam accused Buccalo of slandering him at the commissioners’ meeting and accused Buccalo of telling the commissioners the judge was behaving inappropriately. He asked Buccalo if he understood the waivers and, if he didn’t, questioned why he would sign them. Buccalo told the judge he did not see his comments to the commissioners as something Judge O’Diam should take “personally.” Judge O’Diam replied, “Oh, I see this as very personal.”

After an hour, Judge O’Diam turned the questioning over to Brittney, who also questioned if Buccalo had any concerns signing the waivers. She also accused Buccalo of impugning her character at the county commission meeting.

At the end of the status conference, Judge O’Diam recused himself from the estate matter and announced he was asking the Supreme Court to appoint a visiting judge. Judge O’Diam told Buccalo his actions were going to delay the case. Brittney informed Buccalo the matter created additional legal work and increased the costs the estate would have to pay to settle the estate.

In September 2019, an anonymous grievance was submitted to the disciplinary counsel regarding the judge and his daughter’s questioning of Buccalo. Judge O’Diam stated he believed Buccalo filed the grievance.

A week after the status conference, Judge O’Diam and Brittney appeared at a county commission meeting and told the commissioners that Buccalo was being untruthful when he spoke to them the month before. The judge told the commissioners that Buccalo’s accusations were “despicable.”

Board Rules Judge Behaved Inappropriately
The disciplinary counsel filed a complaint against Judge O’Diam with the Board of Professional Conduct, charging that the judge violated the Ohio Rules of Judicial Conduct. Nearly two years after Buccalo made his comments, and weeks before a three-member board panel was to consider the matter, Judge O’Diam sent a letter to Buccalo apologizing for the way he treated Buccalo during the status conference.

The panel found Judge O’Diam violated the rule requiring judges to be “patient, dignified, and courteous” to those involved in legal matters and require similar conduct of lawyers and others “subject to the judge’s direction and control.” The board indicated the way Judge O’Diam conducted himself and allowing his daughter to grill Buccalo violated the rule.

Judge O’Diam and the disciplinary counsel agreed the matter was a one-time occurrence and that the judge had no prior disciplinary record. They jointly proposed that the board recommend a public reprimand.

However, the panel maintained that the judge’s actions were not an isolated incident. The panel noted the judge arranged and prepared materials for a status conference without giving Buccalo any warning of the nature of the proceeding and then “interrogated him for over an hour in a disparaging manner.” Coupled with allowing his daughter to also interrogate Buccalo without restriction, then going to the county commission meeting to complain, constituted a pattern of misconduct. The panel recommended that Judge O’Diam receive a fully stayed six-month suspension with the condition that he not commit further misconduct.

The board amended the panel’s recommendation and suggested the Supreme Court suspend Judge O’Diam for six months without pay, and that he completes six hours of continuing judicial education focused on judicial demeanor, civility, and professionalism.

Judge Objects to Sanction
Judge O’Diam objects to the proposed sanction, noting that he admitted to violating the rule and expressed remorse for his actions. In his brief, he maintains the proposed “punishment is overly punitive and unprecedented.” The judge has cited several cases where similar judicial misconduct resulted in a public reprimand or a fully stayed suspension.

Judge O’Diam notes that during the disciplinary proceedings and after the conclusion of the panel hearing, the disciplinary counsel shared his assessment that this matter was an isolated incident, and not a pattern of misconduct that warrants a reprimand. He argues that none of the board findings that would justify increasing the sanction were supported by the necessary clear and convincing evidence.

Suspension Appropriate, Disciplinary Counsel Asserts
The disciplinary counsel acknowledges it recommended a public reprimand, but states that based on the board’s findings and conclusions, it agrees that a six-month suspension, at a minimum, is the appropriate punishment.

The office maintains that the judge was wrong to berate Buccalo for expressing concerns at a county commission meeting and argues in its brief that any member of the public “should be assured that they are able to express concern with their elected officials without fear of retaliation from that public official.”

The disciplinary counsel maintains that considering the aggravating factors, the case law supports imposing a six-month suspension, with the only question being whether the suspension should be stayed. The office also supports the conditions proposed by the board that Judge O’Diam would have to meet to lift the suspension.

 Dan Trevas

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2021/11/its-business-not-personal.html

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