ethics

Judges Driving Under The Influence

It has, yet again, been a busy week for judicial disciplinary charges this week.

Portage County Common Pleas Court Judge Becky Doherty may face further disciplinary action as a result of an OVI case brought against her.  On February 2019, Judge Doherty was arrested and charged with driving under the influence of alcohol after she drove a vehicle belonging to an Akron woman off a snowy on-ramp to Interstate 76 eastbound at Route 43 in Brimfield and crashed into a ditch at about 9:15 p.m.  She later pled guilty to the charge, a first-degree misdemeanor.

As a result, on May 20, 2019, the Office of Disciplinary Counsel filed disciplinary charges against Judge Doherty with the Board of Professional Conduct requesting sanctions against her for violations of the Code of Judicial Conduct.  She was charged with failure to act in a manner that promotes public confidence in the judiciary and failure to avoid the appearance of impropriety.  The formal hearing on the matter will occur on October 22, 2019.

Chief Assistant Disciplinary Counsel Joe Caligiuri stated that the sanction on this first offense will likely be a stayed suspension or a public reprimand.

In the meantime, the office of Disciplinary Counsel also filed disciplinary charges against Franklin County Domestic Relations Court Judge Monica Hawkins for her conviction for driving while under the influence of alcohol.  Hawkins was arrested in Pickerington on January 31, 2019, with a blood-alcohol level of .199%, nearly twice the legal limit.  Judge Hawkins informed the arresting officer that she was a judge and said she had not been drinking.  She was later convicted of the charge.  The Office of Disciplinary Counsel charged her with failing to comply with the law and failing to act in a manner that promotes public confidence in the judiciary, violations of the Code of Judicial Conduct.  The charges could result in the suspension of her license to practice law.  A suspension carries a heavy penalty as it means that she would also be suspended from the bench as a requirement for holding judicial office is to be able to practice law in Ohio.

ethics

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.

ethics

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.

ethics

PUBLIC INTEREST IN JUDICIAL CAMPAIGNS INCREASES

With the addition of Melody Stewart and Michael Donnelly to the Supreme Court of Ohio in January 2019, the two Democrats end a years-long Republican sweep in the state’s highest court.  Both Stewart and Donnelly hail from the Cleveland area.  Judge Stewart is the first African-American female justice to be elected to the Supreme Court, although Justice Yvette McGee Brown is the first African American female to be sworn in to the Ohio Supreme Court.

Interestingly, four incumbent appellate court judges lost their election bids, two in the First District, One in the Fourth and one in the Seventh.  The First District, located in the Cincinnati area, has six appellate Judges, for which two incumbents, or one-third of the bench, lost its seat.  The Fourth District, located in the Ross County area has four appellate judges, so the loss of one incumbent amounts to one-fourth of the bench.    The 7th District, located in Youngstown, has four appellate judges so one-fourth of its incumbent bench was lost in this election.

Additionally, nine common pleas court incumbents lost their election bids to remain on the bench: One from Carroll County, one from Cuyahoga County, two from Hamilton County, One from Marion County, one from Montgomery County, one from Sandusky County and one from Summit County.  An additional four incumbents lost their bids for election in the primary in May, one from the 11th District, one from the Clark County Common Pleas Court, one from the Columbiana Court of Common Pleas and one from the Summit County Court of Common Pleas.

With 164 judicial seats, the replacement of 17 incumbent judges amounts to 10% of the incumbent bench in Ohio losing their election bid.  It appears that Ohio citizens are taking a real interest in judicial elections and, in some instances, are letting their discontent be known.  And this is as it should be.  This is why we have an elected judiciary in Ohio.  The public is watching.

ethics

Conflicts Abound When AG and Justice Are Father And Son

The ABA/BNA Lawyers’ Manual on Professional Conduct, reported that an ethics complaint is currently pending against Ohio Supreme Court Justice Patrick DeWine for failing to recuse himself on all cases in which the Ohio Attorney General’s office is involved.  Ohio Attorney General Michael DeWine is Justice DeWine’s father.

Prior to becoming Justice in 2017, Patrick DeWine served on both the Hamilton County Common Pleas Court and the 1st District Court of Appeals.  Justice DeWine has heard many cases in which the AG’s office has represented a party.  As Supreme Court Justice, he has heard 4 cases in which the Attorney General is named as a party.  He has never, however, remained on a case in which the Attorney General has personally appeared before him.

While on the Common Pleas Court in 2010, then Judge DeWine sought an ethics opinion from the Supreme Court of Ohio Board of Commissioners on Grievances and Discipline (now the Board of Professional Conduct) as to whether he could preside over cases in which the AG’s office was representing a party.  Although the Board never issued a written opinion, Justice DeWine states that its Secretary, Jonathan Marshall, orally told him that he must recuse only where his father personally appears before him.

In 2016, as a Court of Appeals judge, Justice DeWine again sought an ethics opinion as to when he must recuse himself when the AG’s Office is either a party or is representing a party.  This time he sought the opinion from private attorney Michael Close.  Mr. Close, agreeing with Mr. Marshall, opined that the Judge need only recuse when AG DeWine personally appears in the case.

In 2016, the Ohio Democratic Party sought its own ethics opinion from former Disciplinary Counsel Jonathan Coughlan, also a former member of the task force that drafted the current Code of Judicial Conduct.  Mr. Coughlan opined that Justice DeWine should recuse himself from all cases in which the AG’s office appears as counsel of record or files an Amicus brief.

In response, Justice DeWine again sought Mr. Close’s opinion.  Mr. Close reiterated that Justice DeWine need recuse only when his father personally appears before him.

Shortly after being sworn in as Justice, two separate litigants requested that Justice DeWine recuse himself from their cases because of the AG office’s involvement.  Justice DeWine declined.

Thereafter, Ohio’s Office of Disciplinary Counsel received grievances against Justice DeWine for his failure to recuse himself from the cases.  Pursuant to the Supreme Court Rules for the Government of the Judiciary, the matter was referred to the Chief Judge of the Court of Appeals, who appointed a three-member panel to review grievances.  All three judges found that further investigation of the grievances was warranted.

Pursuant to Rule, the Chief Judge of the Court of Appeals appointed Bradley N. Frick as Special Disciplinary Counsel to investigate and/or prosecute the ethics matters against Justice DeWine. On February 14, 2018, Mr. Frick filed an Amended Complaint against him alleging violations of several Canons of the Code of Judicial Conduct.

The Amended Complaint alleged that Justice DeWine violated Canons 1, 2 and 4 of the Code of Judicial Conduct when he failed to recuse himself on cases in which the AG’s office was a party or represented a party.  He also violated the Canons when he appeared with his father in photos on his father’s gubernatorial campaign thereby conveying the impression that AG DeWine could influence Justice DeWine. It states that concluding a father-son relationship has no impact on public perception of the judiciary ignores basic human nature.

The Amended Complaint further alleges that Justice DeWine violated Canons 1, 2 and 3 when he asked Hamilton County Prosecutor Joe Deters to find an internship position in the County Prosecutor’s office for his son, a freshman at Miami University.  Prosecutor Deters did so even though Justice DeWine’s son was not a law student.

The Amended Complaint alleges that Justice DeWine failed to promote the independence, integrity, and impartiality of the judiciary, engaged in the appearance of impropriety, engaged in prohibited campaign activity, and employed the authority of his office to secure authorization of a public contract for a family member.

The parties filed motions for summary judgment.  The hearing panel heard oral arguments in September 2018 and will rule on the motions in the near future.

Interestingly, the Supreme Court of Ohio recently denied a defendant’s Motion for Reconsideration due to Justice DeWine’s failure to recuse in State ex rel Beasley, 2018-Ohio-493.  In a concurring opinion, Justice Fischer wrote that the defendant waived his argument when he failed to request such recusal.  Citing a long line of cases in which chief justices have allowed judges to remain on cases notwithstanding familial relationships with government employees whose offices appear before them, Justice Fischer opined that defendant’s argument was without merit.

Whether Justice Fischer’s concurrence is a preview of precedent to be set in Justice DeWine’s ethics case remains to be seen.

At the very least, Justice DeWine’s ethics case points out the inherent difficulty in navigating conflicts of interest in situations where two public officials appear before one another.  Even the experts disagree.  Both sides’ arguments are plausible.  The state Attorney General’s office is involved in so many cases, it may not be feasible to require recusal where the AG is not actually appearing before the court.  On the other hand, a party could reasonably conclude that impartiality cannot occur where a Justice must rule upon a case in which his father’s office is a party or is representing a party.

The Attorney General is Ohio’s top cop.  In this situation, reasoning that “[s]alaried government attorneys simply ‘ “do[ ] not have the financial interest in the success of the departmental representation that is inherent in private practice” seems not to apply.  State ex rel Beasley, 2018-Ohio-493, par. 7.  Although it may not be financial, the AG certainly has an interest in the success of his office.  And that interest is every bit as important to him as is a private practitioner’s financial interest in his business.

Certainly, Justice DeWine knows that his decisions will impact the success of Attorney General DeWine’s office.  And, perhaps, the Attorney General’s re-election campaign.  Or in this case, his gubernatorial campaign.  Of course, Justice DeWine will want his father to do well in public office.  Such considerations simply cannot be ignored.  And citations to situations where the public employee’s position is of less consequence just do not seem to correlate.

Notwithstanding the long precedent that jurists are presumed to be impartial and public officials are presumed to have less interest in the outcome of a public case, it certainly seems to raise an eyebrow to allow a Justice of a state’s top court to preside over cases in which his father, the state’s top cop, stands to gain, even if indirectly.

No doubt this very serious and thorny issue must be addressed and decided.  Whether it should lead to ethics sanctions, possibly impacting the Justice’s law license, however, is another matter.  Given the high stakes and the fact that the citizens of Ohio elected both officials, it seems that, at the very least, some semblance of citizen input is called for.