Disciplinary Counsel v. Shimko
134 Ohio St. 3d 544
Ohio2012Background
- Shimko admitted making statements about Judge Markus in First Fed. Bank of Ohio v. Angelini; disciplinary action for alleged false statements under Prof.Cond.R. 8.2(a) and 8.4(h).
- Board adopted a six-month suspension; the board’s recommendation relied on Gardner and Proctor; the court stayed or not? (board recommended six months)
- Disputed factual periods: October 9, 2008 telephone conference; February 6, 2009 trial mistrial; posttrial/appellate filings alleging bias and misconduct by Judge Markus.
- Shimko contends beliefs were genuinely held and that statements were protected by First Amendment and that Gardner/Proctor are distinguishable; the board found statements were unreasonable and reckless.
- Court ultimately suspended Shimko for one year with the entire suspension stayed on condition of no further misconduct; costs taxed to Shimko.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Shimko violated 8.2(a) and 8.4(h) | Shimko asserts genuine belief and permissible advocacy. | Board found reckless falsity; statements not protected. | Yes, violations found. |
| Proper sanction for the violations | Six-month suspension with no further misconduct sufficient. | Gardner supports actual suspension; stayed suspension insufficient. | One-year suspension with stay. |
| Discipline based on subjective belief vs falsity standard | Subjective belief should validate conduct if reasonable. | Unworkable subjective standard; need falsity/reckless disregard. | Falsity/reckless disregard standard applied; not protected by mere belief. |
| Effect of Gardner / Proctor distinctions on Shimko | Gardner/Proctor distinguish Shimko’s conduct as less severe. | Gardner governs; unequivocal rule against unfounded attacks. | Gardner controls; stayed suspension upheld. |
| Constitutional protections and public interest | Sanctions do not chill First Amendment rights. | Discipline necessary to preserve public confidence in justice. | Board’s conclusions consistent with Gardner; no breach of rights. |
Key Cases Cited
- Disciplinary Counsel v. Gardner, 99 Ohio St.3d 416 (Ohio 2003) (six-month suspension for false accusations against judiciary (DR 8-102(B)))
- Disciplinary Counsel v. Proctor, 131 Ohio St.3d 215 (Ohio 2012) (six-month suspension for false accusations and misconduct)
- Disciplinary Counsel v. West, 85 Ohio St.3d 5 (Ohio 1999) (bright-line rule against unfounded attacks on judiciary)
- Columbus Bar Assn. v. Hartwell, 35 Ohio St.3d 258 (Ohio 1988) (historical basis for discipline for attacks on judiciary)
- In re Holtzman, 78 N.Y.2d 184 (N.Y. 1991) (recognition of public interest in protecting justice system)
- In re Thalheim, 853 F.2d 383 (5th Cir. 1988) (strict construction of disciplinary rules for attorney misconduct)
- United States v. Brown, 72 F.3d 25 (5th Cir. 1995) (comment cited regarding free challenge to perceived partiality)