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

Judge Suspended For Attempting To Influence Daughter’s Speeding Ticket

In February, former Scioto County Common Pleas Court Judge William Marshall was suspended for six months following attempts to influence the outcome of his daughter’s speeding ticket.

When a police officer stopped her, Judge Marshall’s daughter telephoned him.  Judge Marshall spoke with the police officer, who, thereafter, issued a speeding ticket to his daughter.  Later Judge Marshall stated:  “There used to be a code in this county — I’m a Judge and he should not have written my daughter a speeding ticket.”  Thereafter, Judge Marshall attempted to discuss the matter with an Assistant Prosecutor assigned to the case.  Feeling uncomfortable, the Assistant Prosecutor asked the City Prosecutor to handle Judge Marshall’s daughter’s case.

About a month later, Judge Marshall requested the presiding magistrate to appoint counsel to his daughter.  He confided to the Magistrate off the record that he disliked the trooper and wanted to get him in trouble.  When the trooper declined to meet with the Judge to discuss the matter as part of a settlement, the Judge called him a vulgar name.

At trial, both the trooper and Judge Marshall testified.  Judge Marshall requested to be considered an expert on the recalibration of police radar due to his employment in 1994 as a city prosecuting attorney.  He stated he went to the academy many times to be taught how the radar equipment worked. He claimed the only way the trooper could prove the accuracy of the radar was to bring the tuning forks into court. He requested that the court delay a decision until after the trooper had done so.

The magistrate was prepared to issue an order; however, the prosecuting attorney requested that she write it but delay releasing it as he had a felony trial before Judge Marshall the following week and he did not want it to be influenced by an adverse decision in his daughter’s traffic case.  The magistrate delayed issuing the opinion.  She found Judge Marshall’s daughter to be a juvenile traffic offender and set a disposition hearing.

Judge Marshall then called the magistrate indicating that she could not rule against his daughter unless there was an expert testifying to the accuracy of the radar equipment. Ultimately, the Judge accused her of questioning his credibility before ending the telephone call. The magistrate announced the decision and imposed court costs and points.

After the Office of Disciplinary Counsel filed the Complaint against Judge Marshall, he resigned from office.  Entering into a consent to discipline, Mr. Marshall agreed to violations of several judicial rules, including failing to act at all times in a manner that promotes public confidence in the judiciary, abusing the prestige of judicial office, and exhibiting bias or prejudice in the performance of his judicial duties.  The Supreme Court of Ohio issued a six-month suspension.

 

ethics

Judge Reprimanded For Presiding Over Former Client’s Case

Mahoning County Probate Judge Robert Rusu, Jr. was publicly reprimanded for presiding over several cases in which he formerly represented a party.  Appointed to the bench in July, 2014, Rusu was elected into office later that year.  Upon taking judicial office, Judge Rusu neglected to inform some of his clients that he would no longer be representing them in the legal matters.

In one matter, Mr. Rusu represented an executor of an estate.  When he took judicial office, he informed his client he could no longer represent her but referred her to his law office associate who assumed her representation.  Judge Rusu ultimately adopted a Magistrate’s Decision regarding the matter.  He indicated that he did not believe his presiding over the matter would be a problem because all parties were represented by counsel, they resolved the matter and they never formally appeared before him.  According to the disciplinary case, the Office of Disciplinary Counsel identified approximately 170 cases in which Mr. Rusu represented a client and later took some action in their case while a Judge in Probate Court.  Approximately 120 of those cases involved a deputy clerk issuing form letters using a stamp to place the Judge’s signature on the letter.

Additionally, the disciplinary complaint alleged that Judge Rusu failed to notify many of his clients with dormant cases that he had been appointed to the bench, thereby denying them the opportunity to be advised to obtain replacement counsel or to request the return of their files.

Because there was no evidence that Mr. Rusu’s former clients were harmed or that their cases resulted in anything less than evenhanded justice, Judge Rusu was given a public reprimand for this misconduct.

ethics

What’s In A Name? Maybe More Than You Think.

Ohio’s Board of Professional Conduct released Board Op. 2018-5 addressing lawyer and firm websites and domain names.

Many lawyers have developed pithy and fascinating domain names for development of their websites.  As any marketing and advertising professional knows, the creation and development of a brand can make or break a business.  Strong brands, ones with the ability to strike an emotional note in the customer, are the lifeblood of any marketing campaign.  Who doesn’t remember the coffee shop “Central Perk” in the sitcom “Friends”?  Take a look.  All around you businesses are developing brands to help their customers develop an affinity with their product.  Can lawyers do the same?  Well, maybe, sorta, kinda, perhaps.

Unlike many other states, Ohio’s Rule of Professional Conduct have a strict prohibition against lawyers practicing under a trade name.  A firm name such as “Immigration Lawyers” would certainly violate that prohibition.  Through an interesting analogy of likening domain names to physical addresses, the Board opines that use of a trade name in a domain name does not violate Prof.Cond.R. 7.5 prohibiting lawyers from practicing under a trade name.  This paves the way for attorneys, like other business, to use domain names to create and develop strong brands that separate them from the rest of the crowd in delivering legal services in their practice areas.

The opinion begins in recognizing domain names as a specific form of advertising in written and electronic communication that must conform to Ohio Prof. Cond. Rules 7.1 through 7.5.  As a “professional designation” within the meaning of Prof.Cond.R. 7.5, Comment [1], the domain name simply cannot contain information that is false, misleading or nonverifiable, including as to the identity of the lawyers in the firm.  It can, however, contain the name of deceased or retired former firm members.

Interestingly, unlike law firm names, Prof.Cond.R. 7.5 does not specify any specific criteria for domain names.  So long as the domain name is used to assist current or potential clients in locating the attorney, using a trade name in a domain name is permitted.

Although a domain name is not required to include the lawyer’s name, the opinion suggests it may be wise to avoid an allegation that it is false or misleading.  An example of a false or misleading domain is “willwineverycaseforyou.com”.  Likewise, implying in the domain that one is a specialist in an area of law when one is not certified violates Prof.Cond.R.7.4.  So, the name “familylawspecialists.com” violates that Rule unless the attorney using that domain is, in fact, a certified specialist in family law.  Generic names such as “defenselawyer.com” or “estateattorney.com” or “familylawlawyer.com” are appropriate if the attorney actually practices in those areas. On the other hand, where an attorney is a certified specialist in elder law, the domain “OSBACertified ElderLawSpecialst.com” is appropriate.

Finally, a lawyer using a city name in a domain must have an actual physical and active office in that city.  So, a Dayton criminal defense attorney may use the domain name “daytoncriminallawyer.com” but may not use the domain name “cincinnaticriminallawyer.com” if the lawyer has no physical office in Cincinnati.  Use of the latter would violate the misrepresentation prohibitions of Prof.Cond.R. 7.1.

In sum, attorneys have much more leeway in the use of domain names than in the use of law firm names.  Through creative domain name use, lawyers can now create and develop brand recognition to distinguish themselves in the marketplace.  So long as the domain name is not false, misleading or nonverifiable, it will likely pass muster.  Trade names within the domain name are permitted.  Care should be used in selecting a domain name.  The longer a website is in existence, the more hits it will receive in a Google or other search engine search.  Once a domain is selected and branding and marketing are base upon it, the last thing a lawyer or law firm would want to do is have to discontinue use of the domain name.

ethics

Oh, No! An Ethics Grievance. Now What?

It is always a bit disconcerting (as an understatement) when a client files a disciplinary complaint against you.  This is especially so when you believe you did a good job for the client.  Usually, you have some idea that an inquiry is in the offing.  And, let’s face it.  We have all taken on that one client even though every bone in our body tells us that it is a bad idea.  So, now there is an inquiry from your licensing authority.  What do you do?

First, realize you are not alone.  Clients files grievances against their attorneys every day.  If one practices long enough, chances are this situation will arise at least once.  Calm down and do not panic.  On the contrary, taking the position that the matter is frivolous and unworthy of time and resources is also a mistake.  You must respond to the inquiry.  Normally there is a response due date.  Make sure you log that date into your calendar or case management system. Under most state’s procedures, the response timeline can be extended with the investigating authority’s permission.  So, keep in contact with the investigator and, by all means, stay on good terms with him or her.  Understand that the disciplinary authority acts very much like a prosecutor.  Thus, whether to prosecute or not is within his or her sound discretion.

Not surprisingly, you will be highly motivated to get the grievance dismissed as soon as possible.  So how does one accomplish that?  Begin by reading the grievance thoroughly.  You will likely have to read it more than once.  If you can, try to step into your client’s shoes to see what it is that the client thinks you have done wrong.  Review the file and see if there is any merit to the client’s complaint.  Just because there may be some merit to some of the client’s criticisms does not mean a violation of the ethics rules has occurred.  In this regard, it may be wise to enlist the help of a fellow attorney.  Understand that, as the defendant, your view of the situation is not unbiased.  The objective opinion of another individual can add immeasurably to the quality of your response.

Prepare a response.  This will likely take several drafts.  If the response refers to a document, include it as an exhibit. The response should directly address the conduct that the client believes was wrongful.  In so doing, consider the sage advice of Detective Joe Friday in Dragnet, “Just the facts, ma’am.”  Your opinion matters little.  Diatribes, cocky remarks, defensiveness and dismissiveness will garner no points with the investigator.  A reasoned, objective, response, however, will.  The idea is to make the investigation as easy for the investigator to complete as possible.  This approach is similar to the one litigation attorneys take when writing Memoranda and Briefs to the court.  If there is a document that helps, even if it is already in the file, attach it.  That way, the investigator need not search for it.  In the end, ask for dismissal of the grievance.

It is always best to prepare the response several days prior to the response deadline date.  A good approach is to put the response aside for a day or so.  Then, prior to sending, review the response again.  Often, one is surprised by the tone the writing may convey, even though not evident in the first preparation of the response.  If you have ever had a person in authority say to you: “Do not take that tone with me,” you will quickly understand that tone is important.  Unfortunately, one of the great disadvantages to the written word is that tone may be misinterpreted.  A second reading of the response after putting the matter aside for a day or so is the best way to diminish the possibility of an unintended tone.

Importantly, your best opportunity to get the grievance dismissed is at this very first response stage.  Accordingly, consider retaining disciplinary defense counsel.  Many attorneys balk at the idea of expending resources to hire someone to do a job they themselves can do.  Legitimate as such a position seems, disciplinary defense counsel will be able quickly to get to the crux of the behavior the disciplinary authorities thought was worthy of investigation.  Many insurance carriers allow attorneys to choose their own disciplinary defense counsel rather than using counsel the insurance company uses to defend in negligence actions. Retaining someone familiar with the disciplinary rules, case law and procedure is important.  Disciplinary investigations and prosecutions are quasi-criminal in nature.  They share the characteristics of both criminal law and civil law.  Disciplinary defense counsel has a complete understanding of the interplay between these two areas in a disciplinary matter.

Once the response is submitted to the disciplinary authorities, there is nothing to do but wait.  Although one always hopes for a quick decision, it does not always work out that way.  Investigations, like civil litigation, are on a time track.  The ones that must be decided because the time limit is nearing are the ones that the disciplinary authorities will work on. When your case reaches that point, a decision will occur.  Sometimes this seems like an exceedingly long time.  Taking the attitude that no news is good news can help in alleviating the anxiety of awaiting a decision.

Once the dismissal arrives, understandably, you will heave a big sigh of relief.

If, rather than a dismissal letter, you obtain a letter that says that your response has been received but there are just one or two other questions the investigator has, you may want to seriously consider hiring disciplinary defense counsel.  This is a signal that either you missed a matter upon which the disciplinary authorities were focusing or that there is a real ethics problem with your representation of your client.  Either way, you will want an independent third party to work out whatever can be worked out with the disciplinary authorities and discover exactly what they believe you did wrong.

There is no doubt that a disciplinary investigation causes stress and concern. However, the vast majority of attorneys get through it without incident.  Chances are good that you will, too.  It is only in a handful of cases that actual prosecution ensues.