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

Rohrer, Disciplinary Counsel v.
124 Ohio St.3d 65, 2009-Ohio-5930. Decided 11/17/2009.
Case Summaries- 281
Respondent deliberately violated a court order and then misrepresented to the court his responsibility
for that misconduct. Board adopted the panel‘s findings and recommended sanction of suspension for
six months, stayed upon conditions. On September 25, 2007, respondent was appointed to represent a
ten-year old juvenile on five delinquency counts of murder and one delinquency count of aggravated
arson arising from a September 16, 2007 fire that killed the juvenile‘s mother and sister and three other
children. On that day, the juvenile was remanded to the custody of West Central Juvenile Detention
Center, in Troy, Ohio. The juvenile judge sealed the court file on September 26, 2007 and issued a
verbal order prohibiting respondent and the prosecuting attorney from discussing the case with the media.
The order was journalized on October 24, 2007. On October 5, 2007, respondent filed a motion seeking
an order to compel the prosecuting attorney to promptly provide a response to respondent‘s discovery
request; respondent also directed a member of his office staff to deliver a copy of the motion to the
newspaper. The memorandum attached stated ―Counsel for the minor child is also concerned by the
failure of the State of Ohio to provide discovery in a timely manner due to the fact that the Assistant
Prosecuting Attorney Phillip Hoover has already been admonished in prior * * *cases for withholding
discovery or springing surprise discovery immediately prior to trial.‖ The October 9, 2007 edition of the
newspaper included an article on the motion filed by respondent. On October 11, 2007, the judge
conducted a hearing to address the newspaper article and determine whether respondent had violated the
court‘s order regarding communication with the media. At the hearing respondent made false and
misleading statements to the court, for example, he told the court that he said things to his staff that got
misconstrued and that the motion got delivered to the newspaper without his knowledge but that he took
responsibility for that. The prosecutor filed a grievance against respondent on November 7, 2007 and
sent a copy to the judge. On November 29, 2007, the judge issued the entry pursuant to the October 11
hearing concluded respondent violated the court order prohibiting communication with the media and
sanctioned respondent but ordered the sanction purged so long as no further violations of the court
order. In March 2008, the judge found the juvenile not competent to face juvenile –delinquency charges
against him and dismissed the pending charges. The board found in addition to the stipulated facts, that
respondent‘s assistant had told the prosecutor‘s office that respondent had instructed her to send the
motion to compel to the newspaper and that respondent had terminated the assistant because she violated
his office policy against divulging confidential information about cases. The Board found that in a letter
to the unemployment bureau concerning her termination, respondent again suggested she was responsible
for sending the motion to the newspaper. (In footnote 2, the Supreme Court noted it did not agree with
the board finding that the letter suggested that the employee was responsible for sending the motion to
the newspaper. The court found that the records showed a different mistatement to the unemploymentcompensation
bureau.) The court found that in the letter to the unemployment-compensation bureau
respondent indicated that he met with and informed the juvenile court judge that the violation was
respondent‘s fault and that he took full responsibility. But, he admitted at the disciplinary hearing he had
not accurately told the judge what had happened. Board found violations of Prof.Cond.R. 3.4(c) for his
conduct in telling the staff member to deliver the motion to the local newspaper in violation of the
court‘s order; violations of Prof.Cond.R. 3.3(a)(1) and 8.4(c) by knowingly telling the judge at the
hearing that his staff misconstrued his directions, and by making false statement when he said it was
delivered without his knowledge and it was not his intent; and a violation of Prof.Cond.R. 8.4(d) by
deliberately violating a court order and lying to the court about it. The court also found these
violations and that his letter to the unemployment-compensation bureau was misleading and violated
Prof.Cond.R. 8.4(c). (In footnote 3, the court noted as did one panel member that respondent had a duty
to report his own professional misconduct to a disciplinary authority.) The court agreed with the Board‘s
conclusion that respondent‘s conduct violated Prof.Cond.R. 8.4(h), but the court noted that while
―impulsiveness‖ is not the sole measure of whether conduct violated the rule, the board‘s findings are less
than clear as to whether respondent‘s conduct was impulsive or not. The court found respondent‘s
conduct in violating the gag order and making false statements to the juvenile court were deliberate, not