Thursday, January 27, 2022

Ode To Ohio: With A Coda

As readers may know, I believe that maximum transparency is the best way to provide reasonable assurance that bar discipline is imposed fairly and absent the influence of what the American Bar Association's Model Rules Preamble calls the "parochial or self-interested concerns of the bar."

At the top of the list of the most transparency discipline systems is Ohio. The responsible administrators seem to have mastered the technology required to deliver a full picture of the arc of every bar discipline case.

Mastery of technology seems to have expanded to the admissions process as described by Csaba Sukosd

It’s a new year and a convenient, new beginning for prospective Ohio attorneys.

Starting today, the administrative process for admittance into the state’s bar will be completed online.

The Supreme Court of Ohio’s Office of Bar Admissions finished a transition, which began before the pandemic, from a paper-only system to an electronic one.

“This new format makes us more efficient, freeing us up to be more available and pay attention to other things,” Attorney Services Director Gina Palmer said.

The digital transition allows applicants to submit the required documents electronically, and gives them the convenience of paying fees by credit card, debit card, or an electronic bank transfer. Previously, the Supreme Court only accepted cashier’s checks or money orders.

The procedure to determine whether candidates are eligible to pursue an Ohio law license takes months. During that time, the Court investigates and assesses if a person’s character, fitness, and moral qualifications to practice in the state are met.

If approved, those seeking to become attorneys must take, and pass, the Ohio Bar Examination – administered every February and July.

Update: A comment takes issue with the Ode. To clarify, I applaud the process and not necessarily any particular result.

When the Morton decision was issued, I posted the summary on the court's web page without commentary. Having reviewed the opinion and dissent (and by coincidence learning that he was my classmate at Western Reserve in the late 1960s), I agree with the dissent that the speech was protected and Rule 8.2 misapplied.

I myself believe that Rule 8.2 can be and is used as a weapon to stifle legitimate criticism of the judiciary. Other Rules such as 3.3 and 3.5 adequately protect the courts and litigation process. 

Illinois, in particular, overprosecutes Rule 8.2 cases (see here and here, for example).

I would abolish it.

The District of Columbia Court of Appeals - my home Bar - declined to adopt Rule 8.2. Bravo!

Judges need thick skins. (Mike Frisch)

Bar Discipline & Process | Permalink


I beg to differ. Your caption should read “Odious Ohio.” The record of transparency of Ohio’s disciplinary authorities and Ohio’s Supreme Court is odious in profound and shocking respects. Recently, in Cleveland Metro. Bar Ass'n v. Morton, 2021-Ohio-4095, a majority of the Ohio Supreme Court (at the urging of Ohio attorneys) suspended an attorney for exercising the freedom of speech that the Constitution guarantees to every American, most obviously in the First Amendment. The court and government attorneys did so by blatantly misrepresenting controlling legal authorities, flouting U.S. Supreme Court precedent and obviously violating the U.S. Constitution.

The Morton majority emphasized that they relied on false precedent in Disciplinary Counsel v. Gardner, 99 Ohio St.3d 416, 2003-Ohio-4048, 793 N.E.2d 425. Specifically, the Ohio Supreme Court directly stated that its decision in Morton was founded on outright falsehoods or extremely misleading characterizations of a U.S. Supreme Court decision, i.e., the opposite of commendable transparency. See Morton ¶18:

In Gardner, we stated, "The United States Supreme Court has held that '[i]t is unquestionable that in the courtroom itself, during a judicial proceeding, whatever right to "free speech" an attorney has is extremely circumscribed,'" and that "'[e]ven outside the courtroom, a majority of the Court in two separate opinions in the case of In re Sawyer, 360 U.S. 622, [79 S.Ct. 1376, 3 L.Ed.2d 1473] (1959), observed that lawyers in pending cases were subject to ethical restrictions on speech to which an ordinary citizen would not be.'" (Second set of brackets added.) Gardner at ¶ 14, quoting Gentile v. Nevada State Bar, 501 U.S. 1030, 1071, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1991). Relying on Gentile, we found that "[a]n attorney's speech may be sanctioned if it is highly likely to obstruct or prejudice the administration of justice," id., citing Gentile at 1075, and that those narrow restrictions "are justified by the integral role that attorneys play in the judicial system," id., citing Gentile at 1074.

The opening contention, above, about the what the Gentile court “held” was outright, obviously and egregiously false. Gentile clearly did not pertain at all to any speech even potentially either “in a courtroom” or “during a judicial proceeding.” Literally the first paragraph of Gentile made extremely clear that the Gentile Court did not and could not hold anything about any speech that occurred in a courtroom during a judicial proceeding: “Hours after his client was indicted on criminal charges” a lawyer “held a press conference. He made a prepared statement” and “then he responded to questions.” Gentile at 1033. No attorney or judge could reasonably believe that Gentile held a press conference and then responded to questions in a courtroom during a judicial proceeding.

Equally obvious, the Gentile Court reversed disciplined imposed by “the Supreme Court of Nevada.” Id. at 1058. The actual facts and actual rulings in Gentile extremely strongly were contrary to the manner in which the Ohio Supreme Court and Ohio attorneys abused Gentile in Gardner and Morton. Absolutely nothing about Gentile in any way supported the blatantly illegal manner in which the Morton majority (¶ 20) flouted the very clear rulings and holdings in New York Times Co. v. Sullivan, 376 U.S. 254 (1964) and Garrison v. Louisiana, 379 U.S. 64 (1964). The judges responsible for such a blatant travesty should be suspended for a year.

Posted by: Jack Jordan | Jan 28, 2022 10:12:34 AM

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