Thursday, April 28, 2022

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Dan Trevas has a summary of an Ohio Supreme Court decision

A Greene County Probate Court judge received a six-month stayed suspension today for berating a man who publicly questioned whether the judge should hear cases in which the judge’s daughter represents parties.

The Supreme Court of Ohio voted 5–2 to suspend Judge Thomas O’Diam of Xenia. The suspension was stayed with the conditions that he commit no further misconduct and complete six hours of judicial education focused on judicial demeanor, civility, and professionalism.

The sanctions imposed on Judge O’Diam related to a series of events in mid-2019 in which the judge violated the judicial-conduct rule requiring judges to be patient, dignified, and courteous to participants in cases and to require similar conduct of lawyers and others under the judge’s direction and control.

In a per curiam opinion, the Supreme Court adopted the Board of Professional Conduct’s conclusion that in two instances Judge O’Diam violated the rule and also allowed his daughter Brittany, an attorney appearing in his court, to violate the rule while questioning a beneficiary in an estate case she was handling.

Justices Sharon L. Kennedy, Patrick F. Fischer, R. Patrick DeWine, Michael P. Donnelly, and Melody Stewart joined the opinion.

Initially, the Office of Disciplinary Counsel recommended a public reprimand. A three-member board hearing panel then recommended a stayed suspension. However, the full Board of Professional conduct ultimately suggested Judge O’Diam be suspended for six months and be immediately suspended from his judicial office without pay.

Chief Justice Maureen O’Connor and Justice Jennifer Brunner concurred in part with the Court’s opinion but stated they would impose the board’s recommended full suspension without pay.

Judge’s Daughter Submits Estate Case
From 1985 to 2013, Judge O’Diam practiced estate planning and was the majority shareholder in a local Greene County law firm. His daughter, Brittany O’Diam, joined the firm in 2010. Following Judge O’Diam’s appointment to the bench in 2013, the firm reorganized and entered into a payment plan to purchase the judge’s ownership of the firm. The firm made regular payments to the judge until March 2021.

In 2018, Carolee Buccalo died, and her granddaughter was named executor of the estate. The granddaughter hired Brittany to assist with the estate administration. In May 2018, Brittany filed the application to probate the will in her father’s court.

Brittany filed seven waivers of disqualification signed by the beneficiaries of the estate, including three signed by Carolee’s son, Grant David Buccalo. The waivers explained that Brittany was the judge’s daughter, that she was a shareholder in the law firm, and the law firm was making payments to the judge. The waivers stated these circumstances could disqualify Judge O’Diam from hearing the case, but indicated the beneficiaries trusted Judge O’Diam to act impartially and fairly.

Public Comments Anger Judge
A year later, as the estate administration remained pending, Buccalo attended a Greene County Board of Commissioners’ meeting and requested time to address the commissioners regarding Judge O’Diam. Buccalo did not tell the commissioners about his mother’s estate or that he had signed any waivers.

Buccalo stated that he believed Judge O’Diam should recuse himself in cases in which O’Diam family members represent parties, and said, “Justice depends on the appearance as well as the reality of fairness in all things.” He added that people leaving the courtroom need to feel as if they got a “fair shake” and that the system “wasn’t rigged.”

He spoke for about two-and-a-half minutes on the matter and noted that he planned to file a grievance with the disciplinary counsel. About two weeks after the commissioners’ meeting, Buccalo submitted a grievance, which the disciplinary counsel’s office dismissed without investigation based on the waivers that Buccalo had signed.

Judge O’Diam heard about the comments and obtained a video recording of the commissioners’ meeting. He spoke to his daughter about the matter, then scheduled a status conference for the estate case. He ordered the executor and local beneficiaries to appear in person for the conference and warned that failure to attend would be considered contempt of court.

Judge, Daughter Grill Beneficiary
The judge did not inform Buccalo about the purpose of the status conference or tell him he would be called to testify under oath.

At the June 2019 conference, Judge O’Diam called Buccalo to the witness stand and played the video of his appearance at the commissioners’ meeting. He then cross-examined Buccalo for nearly an hour on issues related to the waivers Buccalo signed and his comments to the commissioners.

“I have been a probate judge for six years now. And never in my time on the bench have I ever been as personally offended as I am with you right now,” Judge O’Diam told Buccalo. “[Y]ou went to a public forum that has nothing to do with this court and you disparaged and slandered me personally on a public record.”

Judge O’Diam told Buccalo that he and the commissioners had a “run-in” before in which they “almost went to blows” over the commissioners’ attempt to interfere with the probate court’s administration. He stated he would address the commissioners.

After questioning Buccalo for an hour and denying his request for water, Judge O’Diam allowed his daughter to question Buccalo and make statements without restriction for 15 minutes. Brittany  stated that Buccalo also impugned her character at a public meeting and that his actions “cost this estate an extensive amount of money, an extensive amount of heartache, and an extensive amount of stress that was all completely unnecessary.”

At the conclusion of the conference, Judge O’Diam recused himself from the case and requested a visiting judge be appointed to consider the matter. A week later, Judge O’Diam and his daughter appeared before the county commissioners, and the Judge O’Diam stated Buccalo had made unfounded and false accusations about him and his daughter.

Judge’s Conduct Assessed
In March 2021, disciplinary counsel filed a complaint with the professional-conduct board relating to Judge O’Diam’s treatment of Buccalo.

At the disciplinary hearing, Judge O’Diam testified that he intended to use the status conference to determine why Buccalo had an issue with the disqualification waivers and whether there was any way to resolve his concerns. Judge O’Diam also described Buccalo’s testimony about the hearing as “a lot of overdramatization” of what occurred.

The panel heard a recording of the probate court hearing and found that Judge O’Diam understated his demeanor and attitude. The panel noted that during his lengthy questioning of Buccalo, Judge O’Diam never addressed the topics he stated were the reasons for the conference. The panel suggested that the evidence indicated the judge planned to recuse himself even before the hearing took place and that his questioning of Buccalo “was entirely gratuitous.”

The board adopted the panel’s findings that Judge O’Diam violated the rule regarding the treatment of parties.

The Court’s opinion stated Judge O’Diam had the authority to convene a status conference to ask about the waivers, but the evidence showed that was not the true focus of the inquiry.

“Instead O’Diam berated Buccalo for nearly an hour for what he perceived to be Buccalo’s personal attack against him at an unfriendly public forum, allowed his daughter to continue his line of intemperate interrogation, and then appeared at the commissioners’ meeting the following week to once again accuse Buccalo of publicly disparaging and slandering him and Brittany,” the Court concluded.

In addition to the suspension, the Court ordered Judge O’Diam to pay the costs of the disciplinary proceedings.

2021-0971Disciplinary Counsel v. O’DiamSlip Opinion No. 2022-Ohio-1370.

Video camera icon View oral argument video of this case.

A disciplinary case is pending against the daughter. (Mike Frisch)

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