disciplinary handbook: volume v - Supreme Court - State of Ohio

Hanni, Mahoning Cty. Bar Assn. v.
127 Ohio St.3d 367, 2010-Ohio-5771. Decided 12/2/2010.
Case Summaries- 113
Respondent failed to file a motion for a criminal defendant and made inflammatory comments about a
prosecutor on a radio talk show. In February 2007, a motorist-defendant pled guilty to vehicular homicide,
in exchange for the prosecutor stipulating that a prison term was not mandatory or presumed necessary. The
defendant knew that this was merely a recommendation on sentence; defendant was represented by counsel
other than respondent. The judge accepted this plea and ordered a presentence investigation. In the interim,
defendant changed counsel and hired respondent; respondent was to be paid a retainer of $5000 prior to
services rendered. The fee agreement stated that it did not include post judgment legal services, perfecting an
appeal, or representing the defendant during an appeal. The defendant paid $2500 toward the $5000. After
reviewing the procedural aspects of the matter, respondent told the client that it would be ―next to impossible‖
to vacate his plea this late in the proceeding, so respondent agreed to only take $2500, with the
remainder due only if the court accepted withdrawal of the plea. Prior to sentencing, respondent orally told the
judge that her client wished to withdraw his guilty plea, but the judge indicated that he would not grant the
request. Respondent did not file a formal motion to withdraw the plea, nor did respondent request to withdraw
the plea at the sentencing hearing. The judge sentenced the defendant to four years in prison. Respondent
did not file any post- sentencing motions on behalf of the defendant. The defendant attempted to get the
ruling overturned by filing several pro se motions, but was unsuccessful. In the disciplinary proceeding, the
parties stipulated that a motion to withdraw a plea is to be freely and liberally granted by the trial court and
that, if a motion is filed, the judge is required to conduct a hearing on the motion. Respondent‘s failure to
request a transcript of the change-of-plea hearing following the plea agreement may have hindered her ability
to determine if the plea was entered knowingly and voluntarily. Relator determined that the respondent‘s
charge of $2,500 did not violate the ethical rules; that respondent‘s attorney was currently holding the money in
escrow; and that respondent has agreed to distribute the money to defendant. As to this matter, the board
adopted the panel‘s findings of violations of Prof.Cond.R. 1.3 as stipulated. In January 2008, respondent
appeared on a radio show as a declared candidate in a primary for Mahoning County Prosecutor. During the
show, respondent accused the incumbent prosecutor of misconduct and alleged the prosecutor and a defense
attorney were acting unethically in a pending vehicular-homicide case. Respondent implied that a grand jury‘s
decision not to charge aggravated vehicular homicide was caused by racism and case fixing. No evidence was
found to support respondent‘s claims. Respondent also claimed that the prosecutor‘s suppression of
exculpatory evidence in another common pleas court case caused a wrongful imprisonment. This matter was
investigated and again, no evidence was found to support respondent‘s claims. Respondent acknowledged that
her remarks were made during a heated political campaign. As to this matter, the board adopted the panel‘s
findings of a violation of Prof.Cond.R. 8.4(d) as stipulated. The Court accepted the stipulations and found the
violations. In aggravation, there were multiple offenses. BCGD Proc.Reg. 10(B)(1)(d). In mitigation, there
was an absence of a prior disciplinary record, a good-faith effort to make restitution or rectify consequences,
full and free disclosure during the disciplinary process, and good character and reputation. BCGD Proc.Reg.
10(B)(2)(a), (c), (d), and (e). The parties stipulated to the sanction of a public reprimand. The panel noted that
as of the date of the disciplinary hearing, respondent had not yet made restitution to the client. The panel also
noted with regard to the radio show misconduct that respondent could offer no evidence to support claims of
improper conduct, racism, or suppressed exculpatory evidence. The board adopted the panel‘s finding that the
serious nature of the unfounded accusations warranted more than a public reprimand, and recommended a sixmonth
stayed suspension. The court agreed and so ordered a suspension for six months, all stayed.
Rules Violated: Prof.Cond.R. 1.3, 8.4(d)
Aggravation: (d)
Mitigation: (a), (c), (d), (e)
Prior Discipline: NO Procedure/ Process Issues: NO Criminal Conduct: NO
Public Official: NO Sanction: Six-month suspension, stayed