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

Case Summaries- 261
disqualification. He then filed a request for the judge to recuse himself because of bias and he stated that
unless the judge recused himself the plaintiffs would be forced to file another affidavit of disqualification.
Board found violations of Prof.Cond.R. 3.1, 8.4(d) and 8.4(h), but did not find a violation of Prof.Cond.R.
8.4(c). The court agreed with the board. The court rejected respondent‘s arguments that his discovery
efforts were valid and directed at obtaining evidence to support a new claim for seeking the judge‘s
disqualification and that since the trial court did not rule his conduct frivolous or an abuse of process and
the judge‘s wife was not harmed, his conduct is not a disciplinary violation. As to Count Seven, a
municipal court case in which respondent and his wife were defendants was transferred to the common
pleas court and assigned to Judge Eyster. Respondent prepared for his wife to sign an affidavit of
disqualification alleging that the judge violated Canon 3(E)(1), (a), (1)(c), (1)(d)(iv), and (2). The
affidavit of disqualification was granted to avoid the appearance of impropriety: ―While I see no evidence
in the record before me to suggest that Judge Eyster has shown any improper bias or prejudice in favor of
the plaintiff, I conclude that he should not remain as trial judge on this case.‖ In re Disqualification of
Eyster (Feb. 2, 2006), case No. 06-AP-2. The board found respondent‘s statements in the affidavit of
disqualification to violate DR 1-102(A)(5), (A)(6), 7-102(A)(5), 7-102(A)(6) and Gov.Bar R. IV(2). The
court agreed. In mitigation, respondent has no prior disciplinary record, has made full and free disclosure
to the board, and has demonstrated a professional, respectful, and cooperative attitude in the disciplinary
proceedings. BCGD Proc.Reg. 10(B)(2)(a) and (d). In aggravation, he had a dishonest and selfish
motive, a pattern of misconduct and multiple offenses committed, repeatedly making false accusations
against judges, prosecutors, and assistant prosecutors, and utilized his position as a lawyer as a ―l icense to
harass‖; he refused to acknowledge the wrongful nature of the misconduct; and there was vulnerability
and harm to victims of his misconduct. BCGD Proc.Reg. 10(B)(1)(a), (b), (c), (d), (g), (h). The board
adopted the recommendation of the panel‘s majority of an indefinite suspension. A dissenting panel
member would reject findings in counts three and Four of engaging in dishonesty, fraud, deceit and
misrepresentation and would recommend a two-year suspension with 18 months stayed, The dissenting
panel member cited his belief that respondent was ―generally remorseful‖ for conduct that occurred when
he was a relatively inexperienced attorney and implied that the other panel members had not sufficiently
divorced their admiration for the respected jurist, who currently serves as the Board‘s chairman. The
court considered as an additional aggravating factor that respondent terminated his participation with
OLAP through which he was under the care of a psychiatrist to regulate certain medications and working
with a psychologist to control inappropriate aggression. The court found his conduct most similar to
Frost (2009). The court agreed with the board that the appropriate sanction is an indefinite suspension
and so ordered, adding that because of concern that he has underlying mental-health issues that may have
contributed to the misconduct, he must comply not only with the reinstatement requirement in Gov.Bar
R. V(10)(B), but also provide proof to a reasonable degree of medical certainty that he is mentally fit
to return to the competent and ethical practice of law.
Rules Violated: Prof.Cond.R. 3.1, 3.5(a)(6), 8.2(a), 8.4(c), 8.4(d), 8.4(h); DR 1-102(A)(4), 1-102(A)(5),
1-102(A)(6), 7-102(A)(4), 7-102(A)(5), 7-102(A)(6), 7-106(A), 7-106(C)(6), 8-102(B)
Aggravation: (a), (b), (c), (d), (g), (h)
Mitigation: (a), (d)
Prior Discipline: NO Procedure/ Process Issues: YES Criminal Conduct: NO
Public Official: NO Sanction: Indefinite Suspension