Former Judge Burge Law License Suspended

On August 13, 2018, the Supreme Court of Ohio suspended the law license of former Lorain County Common Pleas Court Judge James M. Burge.  Burge was convicted of crimes related to his failure to disclose his interest in office buildings on his financial disclosure forms while sitting on the bench and then assigning paid legal work to attorneys who rented office space from him.

Burge was suspended for one year with six (6) months stayed.  He was also given credit for three (3) months and three (3) weeks that he had served under an interim suspension issued in April 2015 for his convictions for tampering with records and falsification.

The Supreme Court of Ohio deemed the sanction given sufficient since Burge’s misconduct occurred while he was on the bench and he has resigned from the bench.  It believes Burge’s misconduct will not recur.  In Ohio, a judge must have a license to practice law in good standing to maintain his position on the bench.

While a sitting judge, Burge was charged with 12 counts of criminal conduct.  A jury convicted him of three misdemeanor falsification charges and three felony tampering charges.  A visiting judge dismissed the remainder of the charges.  One month later, the felony charges were reduced to misdemeanors.

Burge also made disparaging remarks to convicted criminals appearing before him.  He told one man he “would have paid 50 bucks to give you a beating before you went.”  To another man, he remarked:  “Now if I were to believe you were that stupid, James, I would just have Deputy Motelewski shoot you right now, because I know you’re not going to make it through life.”  In a letter written on court stationery, Burge characterized the proposed bill of a former General Assembly representative as “nothing more than the hobgoblin of a small-minded, mouth-breathing, Tea Party type whose political style and abilities uniquely qualify him to do nothing.”

In a dissenting opinion, Justice Kennedy’s dissent stated that she would have imposed a two-year suspension with one year stayed for such conduct.

Disciplinary Counsel v. Burge, 2019-Ohio-3205.


U.S. Supreme Court Justice John Paul Stevens Dies At Age 99

After living a good long life, U.S. Supreme Court Justice John Paul Stevens passed away on July 16, 2019, at age 99.  Formerly a Republican antitrust lawyer, Stevens’s 35 years on the U.S. Supreme Court transformed him into an outspoken leader of the court’s liberal wing. Stevens joins U.S. Supreme Court Justices Oliver Wendell Holmes, Jr. and William O. Douglas as one of the longest sitting U.S. Supreme Court Justices on the U.S. Supreme Court bench. Justice Stevens was appointed to the bench in 1980 by President Gerald R. Ford to replace Justice William O. Douglas.

Among his more well-known opinions was Rasul v. Bush, 542 U.S. 466 (2004). Writing for the majority, Stevens brought within the jurisdiction of the federal courts the fate of hundreds of prisoners captured during the war in Afghanistan and Pakistan and held at Guantanamo Bay.

Justice Stevens wrote the majority opinion in Hamdan v. Rumsfeld, 548 U.S. 557 (2006) disallowing the Bush administration to put some of those detainees on trial by military commission.

In 2010, Justice Stevens retired after the decision in Citizens United v. Federal Election Commission, 558 U.S. 310 (2010). There the U.S. Supreme Court held that the federal government could not limit corporations from spending money to influence the outcome of elections.  The majority held that the First Amendment prohibits Congress from passing any law that would fine or jail citizens or associations for engaging in political speech.  This includes, according to the opinion, a speaker speaking on behalf of an association existing in a corporate form. The opinion expanded the rights of corporations to spend money and speak on politics.  This ruling led to the creation of super PACs.

Dissenting, Justice Stevens wrote that the opinion rejected the common-sense notion of the American public that recognized a need to prevent corporations from undermining self government.  Justice Stevens wrote that, in the context of elections to public office, the distinction between an individual and corporate speaker is significant.  While corporations make enormous contributions to American society, they are not actually members of it.  Where the corporation is managed or controlled by nonresidents, its interests may conflict in fundamental ways with the interests of eligible voters.  The opinion was decided on January 21, 2010.  Justice Stevens announced his retirement from the bench on April 9, 2010.

After retiring, Justice Stevens had an active career as an author and public speaker.



Dueling Courts for Courtroom Space

In a 5-2 decision, the Supreme Court of Ohio ruled on May 7, 2019, that Judge O’Diam, the Greene County Probate Judge, cannot issue an order reserving a courtroom exclusively probate matters when another Greene County Common Pleas Court Judge already has control of the courtroom.

For over a hear, Judge O’Diam requested the Greene County Commissioners to provide a full-size courtroom for probate matters.  When his efforts failed, Judge O’Diam issued an order directing the Commissioners to designate Courtroom 3 as the permanent Probate courtroom 3 days per week.  He also ordered the Commissioners to pay for any attorney’s fees and costs arising from any disputes.

The next day, the general division judges issued an order indicating that they intended “to maintain sole and exclusive management” of the lower area of the Courthouse.  Courthouse 3 is located in the lower area.  Thereafter, the County Commissioners voted to use county funds to provide a probate county courtroom in the Juvenile Justice Center Building.  The new space was located about 2 miles from the Courthouse.

The next week, Judge O’Diam declared the Commissioner’s decision void.  The Commissioners filed a Writ of Prohibition with the Supreme Court of Ohio.  It requested that the Judge be prevented from taking any action on his order seeking exclusive use of the courtroom and that he be prohibited from issuing any further orders. Judge O’Diam, on the other hand, filed a writ of Mandamus with the Supreme Court of Ohio requesting that it issue an Order requiring the Commissioners to obey his Order and pay the legal fees.  He also requested that the Commissioners’ Writ of Prohibition be dismissed.

In granting the Commissioners’ Writ of Prohibition, the Supreme Court ruled that Judge O’Diam did not have inherent authority and, therefore, lacked jurisdiction to issue such an order. Citing its prior decision in State ex rel. Wilke v. Hamilton Cty. Bd. of Commrs. (2000), 90 Ohio St.3d 55, the Supreme Court noted that Judge O’Diam does have authority to order funding that is “reasonable and necessary” to carry out the court’s administrative business.  However, in all previous decisions, the Supreme Court allowed the court requesting space to take space occupied by other county administrative offices, such as the school superintendent, auditor or recorder.

Although the Commissioners have not contested Judge O’Diam’s directive to pay attorney’s fees, they have filed objections to the payments in the writ of mandamus.  The Supreme Court will decide the issue when it rules upon the Mandamus matter.


Attorney’s Oversight Failure Leads to Discipline

Attorney D. William Davis was publicly reprimanded after his secretary embezzled $185,000 from his solo practice over 11 years.  Ultimately, the funds stolen were funds that would have been paid to Davis.  However, some of the funds were unearned retainers in Davis’s IOLTA account.  His secretary pleaded guilty to theft by deception and was sentenced to three years in prison. Davis reimbursed his IOLTA account for the client funds that had yet to be unearned.  Although Davis reviewed his bank accounts every month, he did not perform the required monthly reconciliation of the client ledgers.

The Supreme Court of Ohio determined that Davis violated “Prof.Cond.R. 1.15(a)(5) (requiring a lawyer to perform and retain a monthly reconciliation of the records of funds being held on a client’s behalf) and former DR 9-102(B)(3) (requiring a lawyer to maintain complete records of all client property coming into the lawyer’s possession and render appropriate accounts to each client). In addition, the parties stipulated and the board found that Davis failed to adequately supervise Sliva in violation of Prof.Cond.R. 5.3(b) (requiring a lawyer to make reasonable efforts to ensure that a nonlawyer employee’s conduct is compatible with the professional obligations of the lawyer) and former DR 1- 102(A)(6) (prohibiting a lawyer from engaging in conduct that adversely reflects on the lawyer’s fitness to practice law).”

Because it found no aggravating but several mitigating circumstances, the Supreme Court of Ohio publicly reprimanded Davis.  Among the mitigating circumstances were Davis’s full and free disclosure to relator and the Board and his extremely cooperative behavior during the disciplinary process. Davis’s clients lost no money in the theft and he and his partner have implemented protocols to ensure that such conduct does not recur.

The lesson to be learned is that monthly IOLTA reconciliations are crucial to an attorney’s duties under the Ohio Rules of Professional Conduct.


Ohio Supreme Court Justice To Leave the Bench

After 15 years as a justice of the Supreme Court of Ohio, Justice Terrence O’Donnell will leave the bench this month.  Due to age restrictions on judges running for office in Ohio, Justice O’Donnell, age 72, is not able to run for judicial office. Justice O’Donnell is the longest sitting justice to serve the Supreme Court of Ohio.

Justice O’Donnell states that integrity in the judiciary is an important part of service on the bench.  The Supreme Court of Ohio’s mission is to instill public confidence in the judiciary and restore confidence in the decisions the high court renders.

After graduating from Cleveland-Marshall Law School, Justice O’Donnell served as a clerk for two judges sitting on the Eighth District Court of Appeals.  He sat on the Cuyahoga County Common Pleas Court for 14 years before being elected to the Eighth District Court of Appeals, where he served for 8 years.  Ultimately, he was elected three times to the Supreme Court of Ohio. Humbled by how far he has come, Justice O’Donnell says he considers it a great honor to have been so elected.

Leaving the bench does not mean giving up law, however.  Justice O’Donnell is considering being an arbitrator or mediator in cases, or, perhaps, a magistrate.


Professional Conduct Bar Weighs In On #MeToo

Every year in October, the Miller-Becker Institute and the Supreme Court of Ohio’s Board of Professional Conduct sponsor the Miller-Becker Seminar on professional responsibility.  Attendees usually include employees and members from the Board of Professional Conduct, relator’s counsel and respondent’s counsel all sharing information about disciplinary trends in Ohio.

This year, the seminar featured a section on the #MeToo movement.  Cleveland Municipal Judge Ronald B. Adrine, a panel member, remarked that people do not like to think it is happening.  It is very uncomfortable to talk about.  When it is presented, people have a tendency to hide from it.  The presentation was an interactive one and several female attendees commented upon what sexual harassment looked like in years gone by and how it appears today.  There was much discussion about sexual harassment from the bench toward employees.  One panel member believed there is a lack of education as to what is and is not appropriate and the line as to when conduct becomes harassment.  Panel member Judge Jeffrey E. Froelich commented that one usually stayed away from those that everyone knows are jerks on the bench. But things coming out in the media are people doing things that are wrong and that are uncomfortable and inappropriate.

Also featured was a section on implicit bias and what that may look like.  Attorneys from the audience gave examples.  One panel member commented that implicit bias is in the back of the mind and when there is a choice to be made, implicit bias may choose the candidate for that position.

All in all the seminar was very productive.  It was refreshing to see that Judges across Ohio are taking the #MeToo movement in the workplace seriously.  This seminar showed that several are willing to acknowledge and discuss that sexual harassment can impact attorney careers.  All acknowledged that it is difficult to know exactly how to handle such a situation.  Steps including seeking help from a professional organization or having a discussion with the administrative judge about the matter.

Difficult as the discussion may be, it is a conversation that needs to occur.  And the Miller-Becker Seminar went a long way to bringing the discussion to the fore in Ohio.


4 Out of 5 West Virginia Justices Impeached.

Due to lavish spending on renovations and decorations for their court offices, 4 out of 5 justices of the West Virginia Supreme Court were impeached on August 14, 2018.  The 5th justice, Menis Ketchum, resigned in July and pled guilty to wire fraud.  The West Virginia House of Delegates voted to impeach the justices after discovering financial abuse,  including misuse of public vehicles and credit cards, overpaying senior status judges beyond the amount authorized by statute, and overspending on office renovations.  The financial misconduct created a scandal alleging a multi-million dollar misappropriation.

Justice Allen Loughry was impeached for spending $363,000 on renovations to his office, including a $31,924 sofa.  He also removed a historic “Cass Gilbert” desk from the state Capitol and took it to his home.  He was suspended and faces a 23-count federal indictment.

Chief Justice Margaret Workman was impeached for approving the overpayment of senior status judges, a violation of state law, while she was Chief Justice.  The state House voted to reject removal for her spending of $111,000 to renovate her chambers.

Justice Robin Davis was impeached for spending $500,000 on office renovations, including $23,000 on design services and $20,500 on an oval rug.

Justice Elizabeth Walker was impeached for her lack of oversight of the entire court.  The House declined to indict her on the $131,000 she spent to renovate her chambers, deeming it a reasonable expense in comparison to her colleagues.

According to Delegate Mike Folk, the average West Virginian is appalled.  The renovation to any individual office is greater than the price of an average home in West Virginia.  Chief Justice Margaret Workman and Justice Beth Walker will proceed to a Senate Impeachment trial.  Delegate Shawn Fluharty believes the justices should be censured.  The average citizen is outraged and cannot relate to the lavish spending.  It goes beyond the scope of the office.  Elected officials are stewards of taxpayer money, he stated.

Justice Robin Davis shocked elected officials by announcing her retirement on Tuesday following her impeachment on Monday.  Apart from saving her an impeachment hearing, her retirement will pave the way for a second election, allowing the citizens to choose her replacement rather than the Governor.  Meanwhile, Chief Justice Workman stated that she will not resign.

So far, no date has been set for the trail in the Senate of the impeached justices.