ethics

Former Juvenile Judge Jailed

In 2014, former Hamilton County Juvenile Judge Tracie Hunter was convicted of a felony for giving her brother, a juvenile court employee, confidential information.  Then Judge Norbert Nadel sentenced Ms. Hunter to 6 months in jail.  Since then, Ms. Hunter has appealed the conviction in both state and federal court.  In May 2019, federal court Judge Timothy Black found that Ms. Hunter had received a fair trial.  He refused to comment on the sentence, which he said was for the state court to decide.

On July 22, 2019, now Judge Dinkelacker ordered Ms. Hunter to begin her 6-month jail sentence.  Chaos erupted in the courthouse as Judge Dinkelacker ordered the deputies to take Ms. Hunter into custody.  Hunter went limp in a deputy’s arms, resulting in her being dragged from the courtroom.  Now retired Judge Nadel stated that Ms. Hunter was convicted by a jury, was unrepentant for her misconduct, and the sentence was a correct one. Hunter supporters claim the conviction was politically motivated due to Ms. Hunter, a Democrat, taking a seat formerly held by a Republican.

On October 21, 2014, Ms. Hunter’s Ohio law license was suspended due to her felony conviction.  A felony suspension is an interim suspension.  Now that all appeals or proceedings have been concluded, Ms. Hunter will undergo disciplinary proceedings to determine the length of her suspension from the practice of law.

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

Judge Exceeds Authority

Cuyahoga County Common Pleas Court Judge Nancy Russo “patently and unambiguously” lacked jurisdiction over a dispute between the Cleveland Firefighters Union and the State Employment Relations Board regarding a shift change announced in December 2018.

The City of Cleveland sought to change shift start times from 8:30 a.m. to 7:00 a.m. to take effect in February 2019.  Within days of the announcement, the president of the International Association of Fire Fighters, Local 93, responded to the fire chief that the change violated the current contract and that contract negotiations were ensuing.  In January, the Chief, nevertheless, issued the formal shift-change notification.  In response, the Union filed a declaratory judgment action requesting a temporary restraining order and seeking an injunction with the Cuyahoga County Common Pleas Court.

Stating that, because the Union claimed the changes could impact custody orders and family-care arrangements, she had authority to consider the matter as it fell outside of unfair labor practices claims.  Although the City requested that Judge Russo dismiss the matter for lack of subject matter jurisdiction, Judge Russo denied the request, issued a temporary restraining order and set the matter for further hearing.  In response, the City filed a Writ of Prohibition with the Supreme Court of Ohio requesting that Judge Russo’s Order be vacated and that Judge Russo be prohibited from taking any further action in the matter.

The Supreme Court ruled that SERB had exclusive jurisdiction over the matter. It ruled that any arguments that the arrangements are affecting child custody and family-care arrangements fall within the Union’s allegations that the City committed unfair labor practices.  Because none of the arguments falls outside of SERB, the Supreme Court ruled that the Common Pleas Court lacked jurisdiction.  It vacated Judge Russo’s order and issued an Order preventing her from taking any further action.

 

ethics

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.

ethics

Ohio Is Getting A New Disciplinary Counsel

Last week, the Board of Commissioners on Professional Conduct announced that it is conducting a nationwide search for the position of Disciplinary Counsel.  On March 5, 2019, The Supreme Court of Ohio, acting on a Board recommendation, approved an amendment to Gov. Bar R. V to reinstate a 4-year term for that position.  The new term begins October 27, 2019.  Previously the term was for 6 years.  For the past 6 years, the position has been held by Scott Drexel, a former Bar Counsel from California.  The position will be posted or distributed through state and national publications.  It will likewise be posted to national organizations specializing in ethics such as the National Association of Bar Counsel, the Association of Professional Responsibility Lawyers and the National Counsel of Lawyer Disciplinary Boards.  Information about the position can be found on the Supreme Court’s career opportunities webpage.  Chairing the 7-member Panel of the Board conducting the search is Vice Chair Patricia Wise of Toledo.  Interviews will be conducted during the spring and summer and a recommendation will be made to the Board at its August 2, 2019 meeting.  The recommendation will be subject to the approval of the Supreme Court of Ohio.

 

ethics

Public Censure for Recording A Court Proceeding?

New York attorney David Schorr was publicly censured on October 30, 2018, for recording a court proceeding in his own Domestic Relations case.  Such recording is a violation of 22NYCRR 1200.0, Rule 8.4(d) (conduct prejudicial to the administration of justice) of the New York Rules of Professional Conduct.

Although admitted to the NY bar in 2000, Mr. Schorr practiced law only a short time before joining his family’s business.  In 2013, while acting pro se in his own divorce proceeding, Schorr covertly made a recording of a court conference before Justice Deborah Kaplan.  Schorr rejected the Attorney Grievance Committee’s private admonition to him for violating Rule 3.3(f)(3) (intentionally or habitually violating any established rule of procedure of a tribunal) and Rule 8.4(d).  During the formal proceedings that following, the Attorney Grievance Committee sought to examine him under oath. Schorr filed suit against the Attorney Grievance Committee in federal court seeking to enjoin the Attorney Grievance Committee from doing so.  The Southern District dismissed the action, and the Second Circuit affirmed.

Thereafter, the Attorney Grievance Committee filed a motion to give collateral estoppel effect to the Second District’s ruling, which determined that Schorr’s recording violated Rule 8.4(d).  Conduct to which the parties stipulated was that Schorr accused Justice Kaplan, her law secretary and a court officer of perjury in denying that a civil assault had been orchestrated against him.  He accused the Attorney Grievance Committee of retaliating against him in federal court filings on the behest of former Administrative Judge A. Gail Prudenti.  He brought a lawsuit that lacked merit and filed suit against a court-appointed psychologist in connection with the custody of his child.  He alleged bias against a financial analyst appointed to evaluate Schorr’s insurance business’s worth.  He set up an internet website disparaging his opposing counsel, accusing him of lying under oath.

With the stipulation of all of that misconduct, it is amazing that the Supreme Court of New York’s Appellate Division agreed that his sanction would be a censure.  I cannot imagine such conduct resulting in such a light sanction unless, of course, there was some merit to Schorr’s allegations.  Equally puzzling is why it would ever be against any court or ethics rule to record a court proceeding.  Like Ohio, New York courts are open to the public (N.Y. Const., Article 1, Sections 2, 6).  Judges are public officials.  Nothing that happens in a court proceeding should be private or hidden.  That is the reason for open courts.  Judges behaving within the bounds of the Rules of Judicial Conduct should have no problem with court proceedings being recorded.  Indeed, many courts record proceedings themselves.  And this day and age of iphones, pens and other devices that easily can record, what is the harm in allowing a public proceeding to be recorded.

As mitigating factors, the parties stipulated that Schorr had no prior discipline.  He presented competent, credible evidence of his good character.  After returning to the practice of law, Schorr represented clients in domestic relations litigation where he has shown himself to be “a sober and reasonable advocate, eschewing rather than creating conflict.”  (Sober is used here as calm, restrained.  There was no evidence or suggestion of alcohol abuse.)  He represents his clients with great patience and dedication, earning these clients’ trust and gratitude.

It is clear that Schorr became indignant and lost his composure in representing himself pro se in his own divorce proceeding.  However, equally clear is that this was not the manner in which Schorr normally conducted himself.  By all accounts, his behavior in his own case appears to be uncharacteristic of him.  It may be that the moral of the story is that one who represents himself has a fool for a client as Abraham Lincoln said.  Nevertheless, one must wonder at what would compel an admittedly calm, even-tempered, respected and respectful attorney to behave so.  Perhaps it just goes to show that everyone has their limits.  It is refreshing to see a court take a measured approach to discipline in situations such as this one.  The full opinion can be found at In re Schorr, 2018 BL 399860, N.Y. App. Div., 10/30/18.