Hello welcome to this JACPA Ethics Alert blog which will discuss the recent Ohio Supreme Court opinion which suspended an Ohio lawyer for 12 months for engaging in improper ex parte communications with judges and engaging in “a course of conduct that was replete with dishonest, deceptive, and disrespectful acts”. The opinion is: Ohio Disciplinary Counsel v. Stafford, 2012-Ohio-909 (March 8, 2012) .
In a unanimous opinion, the Ohio Supreme Court suspended an Ohio divorce lawyer for 12 months for multiple violations of Ohio’s Rules of Professional Conduct in two separate cases during 2007, including intentionally deceiving the Cuyahoga County Domestic Relations Court when he filed an ex parte motion in 2007 to amend his client’s complaint in a divorce case.
According to the opinion, the motion stated that the sole purpose for the amendment was to include additional parties; however, the lawyer used the amended pleading to surreptitiously insert an answer to a counterclaim to address a prenuptial agreement which had been filed by the opposing party two years earlier and to which the lawyer had failed to file a timely response.
The opinion stated that “(the lawyer’s) conduct in seeking an ex parte order cannot be justified by fear of concealment or dissipations of assets. The board correctly concluded that Stafford unjustifiably alleged the existence of the prenuptial argument in the amended complaint without any mention of the issue in his motions for leave to amend the pleadings. By insisting that he slipped the prenuptial-agreement argument in under the cover of a legitimate issue instead of a flimsy façade, Stafford largely distracts from the core problem. He was not honest with the court when he amended the complaint to add a defense that he might have otherwise waived. Further, we reject Stafford’s contention that the ultimate settling of the case somehow legitimized his unscrupulous procedural tactics.”
The opinion also agreed with the Disciplinary Board’s findings in a second count that the lawyer had directed a client and a subordinate lawyer in his firm to file false sworn affidavits and filed a memorandum in the domestic relations court that recklessly accused a judge of intimidation and abuse of his judicial office after a motion was filed which sought to disqualify the lawyer from representing a client in a pending case based on an alleged conflict of interest. The Disciplinary Board concluded that the lawyer had made “deliberate misrepresentations to the domestic relations court…with the intent to deceive the court.”
The opinion adopted the Disciplinary Board’s conclusions and found that the lawyer’s actions violated, among others, the state disciplinary rules that prohibit an attorney from engaging in conduct involving fraud, deceit, dishonesty or misrepresentation; failing to disclose known material facts to a court in an ex parte proceeding, and making a statement that impugns the integrity of a judicial officer that the attorney knows to be false or with reckless disregard as to its truth or falsity.
“(The lawyer’s) six violations of the Rules of Professional Conduct stemmed from a course of conduct that was replete with dishonest, deceptive, and disrespectful acts. When an attorney engages in such conduct and violates Prof.Cond.R. 8.4(c), ‘the attorney will be actually suspended from the practice of law for an appropriate period of time. A lawyer who engages in a material misrepresentation to a court … violates, at a minimum, the lawyer’s oath of office that he or she will not “knowingly employ or countenance any … deception, falsehood, or fraud.” “… Such conduct strikes at the very core of a lawyer’s relationship with the court and with the client. Respect for our profession is diminished with every deceitful act of a lawyer.'”
A concurring opinion responded to an assertion by counsel for the lawyer during oral argument claiming that ex parte communications were a “common practice” in proceedings before the Cuyahoga County Domestic Relations Court. The concurring opinion stated that “(p)articipating in unauthorized ex parte communications is prohibited conduct subject to sanction. Our adversarial system of justice is dependent upon attorneys who respect, understand, and adhere to the Ohio Rules of Professional Conduct and impartial jurists who strictly adhere to the Code of Judicial Conduct and who resist ex parte engagements. Counsel and judges are reminded of their obligation to adhere to the Ohio Rules of Professional Conduct and the Ohio Code of Judicial Conduct in this regard and to avoid the appearance of impropriety.
Bottom line: This opinion is surprising for a few reasons; including the somewhat short length of the suspension for what appear to be extremely serious Bar Rule violations and the statements by the lawyer’s counsel at oral argument that this is “common practice” in courts in this jurisdiction.
Be careful out there!
As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.
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