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

Pullins, Disciplinary Counsel v.
127 Ohio St.3d 436, 2010-Ohio-6241. Decided 12/23/2010.
Case Summaries- 259
Respondent filed false and disrespectful statements regarding two judges in affidavits of disqualification,
improperly used his notary powers, issued subpoenas in a stayed case, accused two judges and a
prosecutor of engaging in ex parte communications about pending cases, and issued a subpoena to a
judge‘s wife. The board adopted the majority panel‘s findings, conclusions, and recommended sanction.
As to Count 1, respondent filed an action in common pleas court seeking civil stalking protection orders
and behalf of himself, his wife, his daughter, and his wife‘s parents, but the court denied the petition at a
hearing upon the affidavit submitted by respondent. Before the full hearing on the petition, respondent
filed grievances against the judge and an affidavit of disqualification with the Supreme Court of Ohio.
In the affidavit, he stated that he had filed three separate complaints with the Office of Disciplinary
Counsel regarding the judge‘s refusal to follow Ohio law and the Ohio civil rules. After the Chief Justice
denied the affidavit of disqualification, respondent voluntarily dismissed his petition for a civil stalking
protection order. Respondent admitted that he was aware of the confidentiality relating to grievances
and the court‘s caution to attorneys regarding disciplinary complaints remaining private until formal
proceedings began before the board. See In re Krueger (1995), 74 Ohio St.3d 1267. The board found
that respondent knew he should not have revealed the filing of the grievance, but did so based upon
the belief that the affidavit of disqualification was, to some extent, private. The board found violations
of DR 1-102(A)(5), 1-102(A)(6), 7-106(C)(6), 8-102(B), and Gov.Bar R. IV(2) and V(11)(E). The board
recommended dismissal of the alleged violation of DR 1-102(A)(4) because not proven by clear and
convincing evidence. The court adopted the board‘s findings of violations. The court rejected
respondent‘s arguments that he had a reasonable factual basis for stating the judge violated Canons 1, 2,
and 3 of the former Code of Judicial Conduct and that he had a factual and legal basis for revealing he
had filed grievances against the judge in the context of the affidavit of disqualification. The court noted
that an affidavit of disqualification is not a vehicle to challenge a judge‘s exercise of discretion as to type
of hearing that must be held pursuant to R.C. 2903.214(D)(1). See In re Disqualification of Solovan, 100
Ohio St.3d 1214, 2003-Ohio-5484. And, the court noted that an objective standard is used to determine
whether a lawyer‘s statement about a judicial officer was made with knowledge or reckless disregard of
its falsity. See Gardner (2003). A reasonable attorney would believe that respondent statements were
false. The court rejected his argument that because attorneys are not required to take the oath in
Gov.Bar R. V(11)(E)(4) this exempt them from the obligation to maintain the privacy of a disciplinary
grievance prior to certification of a complaint. See BCGD, Advisory Op. 98-2(1008) and In re
Disqualification of Squire, 105 Ohio St.3d 1221, 2004-Ohio-7358. As to Count Two, in September
2005, the judge appointed him to serve as guardian ad litem in a domestic relations case. The court
denied that mother‘s petitions for an ex parte and permanent domestic-violence civil protection order
from her former boyfriend. Respondent, in his February 2006 guardian‘s report made statements that
the judge ignored the law, failed the mother significantly in her time of need, and that it was the worst
example of he had seen of negligence and incompetence is carrying out the duties of a public official.
The board found these statements to violate DR 1-102(A)(5), 1-102(A)(6), 7-106(C)(6), and Gov.Bar
R. IV(2). The court agreed. The court rejected respondent‘s arguments, including his argument that he
made the statement in his capacity as guardian ad litem, rather than an attorney and that the report was
not made public because it was not entered into evidence. The court noted that even lay guardian ad
litems are officers of the court and that as a general rule a guardian ad litem‘s report is not private.
Further, the court‘s review of the transcript confirms the judge‘s testimony that a domestic violence
protection order was unwarranted. As to Count Three, he filed a complaint for temporary and
permanent injunctions and declaratory judgment on behalf of his wife and his father-in-law and
contemporaneously filed a motion for a temporary restraining order and affidavit in support of the
motion. Respondent placed his notary stamp and seal on an affidavit purportedly executed by his wife,
but actually signed by respondent who claimed he had done so pursuant to a power of attorney. The
board found violations of DR 1-102(A)(4) and (A)(6), 7-102(A)(4) and (A)(6). The court agreed.
Respondent asked the court to find that he only violated DR 1-102(A)(6). The court rejected respondent