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

Pay Co-Counsel All They Are Due

On June 27, 2019, Cuyahoga County lawyer Scott A. Rumizen was suspended from the practice of law for two years with 18 months stayed for failing to pay his co-counsel the entirety of the fees co-counsel was entitled to receive.

The misconduct occurred through a series of cases in which Rumizen and his co-counsel represented clients.  Rumizen had been an independent contractor for a law firm.  When he left the firm to open his own practice, the firm and he agreed that he would take about 100 cases, mostly personal injury cases.  Rumizen later misreported the amounts many of the cases settled for resulting in underpayment to his co-counsel.  The resulting shortage in fees paid to co-counsel amounted to nearly $50,000.

In one case, Rumizen settled a personal injury matter for $170,000 for which he received a $62,000 fee award.  He was to pay co-counsel $15,000.  Rumizen, however, reported the settlement as being $60,000, that he received $15,000 in attorney fees and paid co-counsel $3,750.

Co-counsel discovered the misconduct when he received an anonymous letter informing him of Rumizen’s conduct.  While Rumizen initially denied the conduct, he later admitted underpaying the lawyer.  This happened in a number of cases.

The Board found, and the Supreme Court of Ohio agreed, that Rumizen violated Prof.Cond.R. 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation).  It further found that the conduct was so egregious that it adversely reflected on Rumizen’s fitness to practice law in violation of Prof.Cond.R. 8.4(h).

The Supreme Court of Ohio has repeatedly stated that a violation of Prof.Cond.R. 8.4(c) will result in an attorney’s actual suspension from the practice of law for a period of time. Although he requested a stayed suspension, Rumizen was actually suspended for 6 months with the balance of 18 months stayed providing he engages in no further misconduct.

Disciplinary Counsel v. RumizenSlip Opinion No. 2019-Ohio-2518.

ethics

Lost Settlement Check = Suspension

On June 5, 2019, the Supreme Court of Ohio suspended Lorain County Attorney Jeffrey H. Weir, II for losing a client’s settlement check.  Weir received a one-year suspension with 6 months stayed.

The lost check, however, was not the only reason for the suspension.  Both the Office of Disciplinary Counsel and the Lorain County Bar Association filed complaints against Weir based on separate grievances filed with those offices.  The Supreme Court of Ohio suspended Weir on an interim basis when he failed to respond to a third disciplinary complaint not involving either of those matters.

Weir accepted representation of his client to terminate a land sale contract.  The sellers sent Weir a check as a settlement offer.  Because both he and the client believed she was entitled to more funds than the value of the check, they agreed not to cash it.  Later, the client agreed to accept the check as settlement.  Because it was stale, Weir requested a replacement check from the sellers, which he received August 2016.  He then lost the check and did not respond to his client’s inquiries about it in September and October 2016.  In November 2016, he informed his client he had misplaced the check and would request a third check but then stopped all communication with his client.

Weir did not respond to the grievance the client filed against him with the Lorain County Bar Association but did appear at a grievance committee meeting.  He found the lost check in December 2017 and gave it to his client.  When she tried to cash it, the bank dishonored it.  The seller’s attorney said the sellers would not write a third check for the settlement.  The Supreme Court of Ohio agreed with the Board that Weir’s misconduct included losing his client’s settlement check, failing to communicate with her over an extended period of time and then failing to make her whole.  Lorain Cty. Bar Assn. v. Weir, 2019-Ohio-2151, ¶ 16).

The Disciplinary Counsel action involved Weir substituting as counsel for his clients in a lawsuit.  When the court entered judgment against his clients, Weir sued their former counsel for malpractice.  The court dismissed the action as time-barred.  Weir appealed.  The appellee filed a motion to dismiss because the appeal was time-barred.  Weir failed to respond to the motion and the appellate court dismissed the appeal.  The Supreme Court determined that he failed to give competent and diligent representation to his clients. Id. ¶ 19.

As a result of this misconduct, Weir was actually suspended from the practice of law.

 

 

 

ethics

Conflicts of Interest In Municipal Representation and Criminal Defense

Board Advisory Opinion 2019-3 advises that lawyers may not represent municipalities in real estate matters where another lawyer in the law firm represents criminal defendants being prosecuted in Municipal Court for that municipality.  Likewise, it is a conflict of interest for a lawyer to engage in such a representation where another attorney in the firm represents criminal defendants investigated by police officers in that municipality.

Such representations would violate Prof.Cond.R. 1.7 prohibiting conflicts of interest and Prof.Cond.R. 1.10 on imputation of conflicts of interest to other attorneys in the firm.

A conflict of interest occurs where an attorney represents a client directly adverse to another current client or if an attorney’s ability to consider, recommend, or carry out an appropriate course of action for that client will be materially limited by the lawyer’s responsibilities to another client, a former client, a third person, or by the lawyer’s own personal interest. Prof.Cond.R. 1.7(a)(1)-(2).  The fundamentality of a lawyer’s fundamental duty of loyalty and independent judgment is not permitted to be diluted by a duty the lawyer may owe to another client.  Likewise, imputing the conflict to other attorneys in the firm gives effect to these fundamental duties.

A lawyer is not permitted to advocate on behalf of one client in litigation against a current client, even if the matters are unrelated.  Likewise, a conflict exists where a lawyer must cross-examine another firm client who appears as a witness in litigation.  Additionally, an attorney is prohibited from representing a client where a conflict of interest involves a substantial risk that the lawyer or law firm’s ability to consider, recommend, or carry out an appropriate course of action for a client will be materially limited by the lawyer or law firm’s responsibilities to another client or by the lawyer or law firm’s own personal interest. A municipality has an interest in prosecuting their local ordinances and supporting their employees, such as police officers.  Conversely, criminal defendants have an interest in ensuring the preservation of their constitutional rights and avoiding criminal conviction.  Arguments that an ordinance is unconstitutional or that police were not properly trained or that they systematically failed to follow the law or proper procedures would be directly adverse to the municipality’s interests.

Additionally, a concern exists that a lawyer representing both a municipality and a criminal defendant may conduct a deferential rather than a thorough examination of a municipal employee in criminal defense litigation. On the other hand, the law firm’s financial interest in maintaining the municipality as a client could have an adverse effect on the defense of the criminal defendant client.  Moreover, a municipal client cannot waive the conflict as it acts on behalf of the public, which cannot consent to such a conflict. ABA Formal Op. 16 (1929); ABA Formal Opinion 34 (1931); ABA Formal Opinion 77 (1932).  Indeed, the lawyer’s client is deemed to be the citizens of the municipality. Thus, Ohio joins West Virginia and New Jersey in adhering to a “per se” government non-consent rule. Bennett, Cohen & Gunnarsson, Annotated Model Rules of Professional Conduct, 153 (8th ed. 2015).

The opinion warns that a request that a Municipality waive such a conflict of interest may result in a judicial determination that the Municipality cannot consent.  Therefore, the Board declined to advise that lawyers in such circumstances request the informed consent of the municipality to the conflict.

ethics

Revocable Trust for Attorney Ownership Shares Prohibited

One of the lawyer’s primary responsibilities is to render independent professional judgment to clients.  Prof.Cond.R. 2.3.

As a result, the Board of Professional Conduct released Advisory Opinion 2019-2 warning that attorneys are not permitted to enter into transfer on death agreements converting equity shares of a law firm into a revocable trust if one or more of the beneficiaries is a non-lawyer.  Ohio Revised Code Section 1709.06 permits the titling of securities in such a manner to allow for their transfer at death to avoid the requirement that they be administered as part of the decedent’s probate estate. Prof.Cond.R. 5.4(d)(1), however, prohibits law firm ownership by non-lawyers.  Similarly, Gov.Bar. R. III, §(3)(B) prohibits a lawyer from practicing law in a law firm where an equity holder is not authorized to practice law in Ohio or elsewhere.  The Board reasoned that such a transfer on death vehicle where the revocable trust becomes irrevocable upon the attorney’s death could result in a non-lawyer owning an interest in a law firm.  This could result in the remaining members of the firm violating both the Ohio Rules of Professional Conduct and the Ohio Supreme Court Rules for the Government of the Bar of Ohio.

The problem is not resolved where the Trustee of the Trust is an attorney because the beneficiaries would eventually become the owners of the equity shares.  The reason for the rule is that if non-lawyers are permitted ownership interests in law firms, a lawyer’s independent professional judgment may become compromised.

ethics

INTEGRITY: Without it, nothing works

Integrity. That one word conjures up a host of thoughts and meaning. Dictionary.com defines it as an “adherence to moral and ethical principles; soundness of character; honesty.” The second definition is “the state of being whole, entire or undiminished.” Merriam-Webster defines it similarly as “the quality of being honest and fair” and “the state of being complete or whole.” “Whole” is defined as “having all necessary parts: not lacking anything; not limited in any way; having all necessary parts, elements, or steps.” For example, when a ship’s hull lacks integrity, it takes on water, because the whole is compromised. It is not seaworthy.

The same can be said for the human condition. As humans, our integrity goes in and out all of the time. Indeed, integrity is always on its way out. As humans, our integrity exists in our word. When we keep our word, we are in integrity. When we break our word, we are out of integrity. When using the word “integrity” with regard to the words we speak, the promises we make, the first definition — that involving morality or ethics — can be excised from the definition. As humans, once we break our word, which, if we are honest, happens every single day, it often is not a statement as to our honesty or ethics. It is a condition in which we said that we would perform and we have experienced a breakdown in performance. This may come in the form of failing timely to do a task, failing to do it in the manner in which it was meant to be done, failure to do it completely, or that there was an expectation that was not met.

With every integrity breach, there is a consequence. That is to say, there is an impact. The impact occurs in at least two ways. There is an impact to the promise breaker, and there is an impact on the person to whom the promise was made. The impact on the promise breaker often is the listening of her from those to whom the promise was made gets smaller. The promise breaker is viewed as unreliable. The impact on the individual to whom the promise was made often is an extra burden, which can come in a number of forms. The end result is that there is a separation in relationship between the promise breaker and the one to whom the promise is made. Often this starts with very small, seemingly minor occurrences, such as a failure to be on time.

Given that this happens so often in the human experience, what is one to do? Well, all is not lost. There is a restoration process. It is crucial that, once it goes out, integrity is restored. Without integrity, nothing works. So how does this restoration occur? The first step is to acknowledge the integrity breach. As humans, we are loathe to do this. We think it makes us look weak, or bad, or, at least, we fail to look good. We want to sweep it under the rug, ignore it, or forget about it. But there is a separation between the promise breaker and the one to whom the promise was given that will remain without a restoration of integrity. Like a breach in the integrity of the hull of a ship, it must be addressed for the relationship to be restored.

The mere acknowledgment that one has not kept one’s word goes a long way to bridge the gap that the lack of integrity creates. When one acknowledges the impact on self of the integrity breach and the impact on the other, the gap lessens further. Finally, when one puts structures into place and tells the other person that structure to ensure that word is kept, the division between the two evaporates and integrity is restored.

So practically speaking, what does such a restoration process look like? Let’s take a situation where one is late for a meeting. It may look something like this: “I said I would do be here at 9 a.m. I did not appear until 9:15 a.m. I am out of integrity in this area. The impact on me is that I am embarrassed and I must rely on another to catch me up. The impact on you is that time is taken to catch me up, I have interrupted a discussion and you are wondering where I am and when I will get here. I will put an alarm on my clock to ensure that I timely arrive for future meetings or will be in communication if I will be late.”

When this restoration is done without explanation, blame, defensiveness, making one’s self or another wrong, the gap that occurs due to the breach of integrity disappears. The other person’s listening of the promise breaker enlarges, sometimes to a greater extent that existed before the breach. The point is, though, that there is nothing in the way of effective communication. And that goes a long way in relationship building.

ethics

Board Recommends Indefinite Suspension for Judge Horton

In a 42-page Report to the Supreme Court of Ohio, the Board of Professional Conduct recommended that Judge Horton be indefinitely suspended from the practice of law.  In a three-count complaint, Relator, Disciplinary Counsel, charged Judge Horton with misconduct involving failure to file accurate campaign finance reports, misusing county resources in his judicial campaign, and inappropriate sexual conduct with a former intern and sexually harassing his secretary.

On March 16, 2017, Judge Horton pled guilty to three first-degree misdemeanor counts of failing to file complete and accurate records regarding campaign contributions and expenditures.  Judge Horton was sentenced to 6-month consecutive jail sentences, which were suspended in favor of probation.

The Board found that Judge Horton engaged in misconduct by insisting that his staff work on his judicial election campaign on county time.

County Three involved Judge Horton having inappropriate sexual conduct with two members of his judicial staff both in the workplace and outside of the workplace. One involved his secretary, a former hostess at T. Murray’s Bar and Grill. Judge Horton informed her of a secretarial position available at his office and she took the job, saving her from having to work two part-time jobs.  During her employment, Judge Horton made it clear that she was to be at his beck and call, work on his campaign, be available to entertain his friends and endure his constant sexual harassment.  He also sent her inappropriate text messages and later instructed her to destroy them.

Judge Horton also sexually harassed a legal intern during her internship.  He spoke to the intern about the importance of loyalty and explained that people got jobs in the legal industry by being loyal.  Judge Horton told the intern about the power he possessed and his ability to affect people’s careers.  The result was that, even though she did not want to, the intern agreed to have sex with Judge Horton.

The Board found that Judge Horton’s misconduct called into question his character and integrity as both an attorney and a judge.  It found that he violated Jud. Cond. Rules 1.2, 1.3, 2.3(B) and Prof. Cond.R. 8.4(h).  The Board recommended to the Supreme Court of Ohio that Judge Horton be indefinitely suspended from the practice of law.

The Supreme Court of Ohio now must decide whether to adopt the Board’s recommendation.  If Judge Horton is indefinitely suspended, he will lose the ability to remain on the 10th District Court of Appeals until reinstated to the practice of law, a minimum of at least two years.