Disciplinary Counsel v. Brockler
48 N.E.3d 557
Ohio2016Background
- Aaron J. Brockler, an assistant Cuyahoga County prosecutor, created a fictitious Facebook account (“Taisha Little”) and posed as a woman to contact two alibi witnesses for a murder defendant (Damon Dunn) after hearing jail calls suggesting the witnesses might be unreliable.
- Posing as “Taisha,” Brockler falsely claimed a relationship with Dunn and tried to elicit recantations or admissions that the witnesses were lying; he deleted the account after several hours and did not disclose the deception to defense counsel or supervisors before trial.
- A colleague (Filiatraut) later received a transcript of one witness’s chat, disclosed it to defense counsel, and investigated, after which the prosecutor’s office withdrew and a special prosecutor was appointed; Brockler was fired.
- Brockler admitted violating Prof.Cond.R. 8.4(c) (dishonesty) but argued for a prosecutorial-investigation exception; relator alleged additional violations including Prof.Cond.R. 8.4(d) (prejudicing administration of justice) and 3.6(a) (prejudicial extrajudicial statements).
- The Board found violations of Prof.Cond.R. 8.4(c) and (d), dismissed the 3.6(a) charge, and recommended a one-year suspension fully stayed on conditions due to significant mitigating factors; the Supreme Court of Ohio adopted the board’s report and imposed the same sanction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Brockler’s creation/use of a fictitious Facebook account violated Prof.Cond.R. 8.4(c) (dishonesty) | Brockler’s deception was dishonest and violated 8.4(c) | Brockler admitted violation but sought a narrow exception for prosecutorial investigatory deception | Court: Violation of 8.4(c); no exception carved out |
| Whether Brockler’s conduct violated Prof.Cond.R. 8.4(d) (prejudicial to administration of justice) | Ruse risked false testimony, injected issues near trial, delayed case and required appointment of special prosecutor | Brockler argued ruse encouraged truth-telling and did not prejudice justice | Court: Violation of 8.4(d); ruse prejudiced administration of justice |
| Whether Brockler’s media statements violated Prof.Cond.R. 3.6(a) (prejudicial extrajudicial statements) | Relator: Brockler’s public comments likely to materially prejudice Dunn’s trial | Brockler: Statements defended his conduct and denied serious prejudice | Court: Relator failed to prove Brockler knew or should have known statements had a substantial likelihood of materially prejudicing the trial; 3.6(a) dismissed |
| Appropriate sanction | Relator urged actual suspension; emphasized dishonesty and undermining public trust | Brockler urged stayed six-month suspension; emphasized lack of prior discipline, cooperation, character letters, isolated incident, and belief that tactic was legitimate investigative tool | Court: One-year suspension, fully stayed on condition of no further misconduct and payment of costs (stay lifts on violation) |
Key Cases Cited
- Columbus Bar Assn. v. King, 84 Ohio St.3d 174 (1998) (attorney engaged in dishonest investigatory misrepresentation; disciplinary sanction)
- Cincinnati Bar Assn. v. Statzer, 101 Ohio St.3d 14 (2003) (attorney’s subterfuge constituted dishonesty and intimidation in discovery)
- Disciplinary Counsel v. Karris, 129 Ohio St.3d 499 (2011) (dishonesty by lawyer ordinarily warrants actual suspension)
- Disciplinary Counsel v. Fowerbaugh, 74 Ohio St.3d 187 (1995) (misrepresentations support suspension)
- Disciplinary Counsel v. Potter, 126 Ohio St.3d 50 (2010) (significant mitigation can justify staying a suspension)
- Disciplinary Counsel v. Niermeyer, 119 Ohio St.3d 99 (2008) (absence of prior record and cooperation supported fully stayed suspension)
- Cleveland Metro. Bar Assn. v. Gruttadaurio, 136 Ohio St.3d 283 (2013) (indefinite suspension for lying to disciplinary investigator)
- Disciplinary Counsel v. Johnson, 122 Ohio St.3d 293 (2009) (one-year suspension with partial stay for false statements about settlement)
- Cleveland Bar Assn. v. McMahon, 114 Ohio St.3d 331 (2007) (six-month suspension for fabricating evidence)