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

DiCato, Akron Bar Assn. v.
130 Ohio St.3d 394, 2011-Ohio-5796. Decided 11/17/2011.
Case Summaries- 67
Respondent made disparaging remarks about a judge over the telephone. Respondent failed to respond to
the complaint. A master commissioner was appointed and made findings of fact, conclusions of law, and
recommended a six-month suspension, stayed. Respondent made several disparaging remarks about a
judge to the judge‘s bailiff during a telephone conversation about fee applications that were awaiting the
judge‘s approval. Respondent called the judge a ―lying, cheating bitch.‖ When he was order to appear
and explain his actions, he sent a letter explaining himself and noting that he and judge were of the
same political party. He later appeared before the judge, apologized and was ordered to pay a $500 fine
and received a 48-hour suspended sentence. This conduct violated Prof.Cond.R. 3.5(a)(6) (discourteous
conduct toward a tribunal), 8.2(a) (knowingly or recklessly false statements about a judge), and 8.4(h)
(conduct adversely reflecting on fitness to practice law). The board dismissed an alleged violation of
Prof.Cond.R. 3.5(a)(1) (attempting to influence a judge) as not proven by clear and convincing evidence.
The Court agreed with these findings. In mitigation, respondent cooperated in the disciplinary process
and did not have a prior disciplinary record. BCGD Proc.Reg. 10(B)(2)(a), (d). The Court found that
respondent eventually stopped cooperating, and thus did not cooperate in the disciplinary process.
BCGD Proc.Reg. 10(B)(1)(e). Although the board found that respondent did not acknowledge the
wrongful nature of his conduct, the Court rejected this aggravating factor, finding the opposite. Relator
requested a two-year suspension. The board found that this conduct was more akin to cases imposing a
public reprimand, but felt the gravity of the statements warranted a six-month suspension, stayed. The
Court reviewed the spectrum of cases from Grimes (1993) to Milano (1984). The Court found
respondent‘s conduct to be damaging to the judiciary and not explained by medical circumstances, but
noted that it was done in one single, private telephone outburst. Thus, the Court adopted the board‘s
recommendation of a six-month suspension, stayed on the condition of no further misconduct.
Rules Violated: Prof.Cond.R. 3.5(a)(6), 8.4(h)
Aggravation: (e)
Mitigation: (a), (d)
Prior Discipline: NO Procedure/ Process Issues: NO Criminal Conduct: NO
Public Official: NO Sanction: Six-month suspension, stayed