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

Plough, Disciplinary Counsel v.
126 Ohio St.3d 167, 2010-Ohio-3298. Decided 7/21/2010.
Case Summaries- 251
Respondent, a judge, failed to maintain or provide complete records of courtroom proceedings,
unreasonably delayed compliance with a mandate of the court of appeals on remand; engaged in
improper ex parte communication with a prosecutor; expressed an opinion on an issue of fact in the
jury‘s presence; berated defense counsel during closing argument; refused to grant a mistrial based upon
his own prejudicial conduct; refused to accept a guilty plea for a misdemeanor speeding violation base
upon his mistaken belief that the prosecutor was statutorily required to charge the defendant with a greater
offense. Respondent was elected judge in 2005 and served until his term expired in 2009. The parties
stipulated to the findings of fact and conclusions of law, which the board adopted in their entirety
except for Count I. In Count I, defense counsel moved for a continuance based on new discovery
materials. Respondent did not review the materials, but denied the request based on the prosecutor‘s
word that not granting the request would not be prejudicial. Defense counsel then refused to participate
in the proceedings and was found in contempt. Later at the contempt hearing, the court withdrew the
contempt and granted the motion for a continuance. The panel and board recommended dismissal of
Count I. The court agreed, finding that this conduct may have been an abuse of discretion, but that abuse
of discretion typically generates an appeal, not disciplinary proceedings. In Count II, respondent failed
to maintain or provide a complete record in three separate proceedings, despite numerous requests
filed by the parties. In one of the cases, respondent failed to comply with multiple remands from the
court of appeals ordering him to produce the audio recordings or follow App.R. 9(C) procedure.
Respondent‘s conduct in failing to maintain or provide complete recordings led to a reversal of a portion
of one defendant‘s sentence that required him to register as a sex offender and the reversal of another
defendant‘s OMVI conviction. The board adopted the panel‘s findings of violations of Canon 2, 3(B)(8),
and 3(C)(1), and Prof.Cond.R. 8.4(d). In Count III, respondent waited almost three months to comply
with a remand order from the court of appeals, ordering him to vacate a OMVI conviction and
enter a judgment of acquittal. The board adopted the panel‘s findings of violations of Canon 2 and
3(B)(8) and Prof.Cond.R. 8.4(d). In Count IV, respondent phoned the county prosecutor without
defense counsel present to discuss respondent‘s opposition to an assistant prosecutor‘s plea agreement.
The board adopted the panel‘s findings of a violation of Canon 3(B)(7). In Count VI, respondent
interrupted defense counsel while he was questioning a witness, and improperly gave his own opinion
on an issue of fact while the jury was present. Respondent then subsequently refused to grant defense
counsel‘s motion for a mistrial. During defense counsel‘s closing argument, respondent constantly
interrupted the attorney, berated him, and questioned his professional qualifications in front of the
jury. The court of appeals, which reversed the judgment of conviction in part, observed that the
gratuitous vilification and general hostility toward defense counsel caused him sit down and refrain from
completing the closing argument. The board adopted the panel‘s findings of violations of Canon 1, 2,
and 3(B)(4) and Prof.Cond.R. 8.4(d). In Count VIII, respondent refused to accept a guilty plea in a
minor-misdemeanor speeding offense, because he mistakenly believed that the statute required a more
serious charge. Board adopted the panel‘s findings of violations of Canon 2 and Prof.Cond.R. 8.4(d).
The Court adopted these findings of fact and conclusions of law, except that respect to Count VI in which
the court found a violation of DR 1-102(A)(5) rather than Prof.Cond.R.8.4(d) because the conduct
occurred before February 1, 2007. In aggravation, respondent engaged in multiple violations and
prejudiced the appellate rights of several litigants by failing to maintain adequate records. BCGD
Proc.Reg. 10(B)(1)(d) and (h). In mitigation, the Board found a lack of prior disciplinary record, no
dishonest or selfish motive, full disclosure by respondent during the investigation, and good reputation
for honesty, diligence, and fairness as a judge. BCGD Proc.Reg. 10(B)(2)(a), (b), (d), and (e). The
Board adopted the panel‘s recommendation of a one- year suspension with six months stayed
conditionally on respondent engaging in no further disciplinary misconduct. Respondent‘s conduct was
found to be more serious than Karto (2002) (six-month suspension, but lacking the aggravating factors of
dishonesty, failure to concede violations, or a prior disciplinary history of other cases Parker (2007) (18-
month with six months stayed), O’Neill (2004) (two- year with one year stayed), Squire (two-year with