2020 Ohio 3701
Ohio2020Background:
- Kenneth Ronald Bailey (senior) was retained in 2015 to defend Richard Mick on child-sex charges; he sought appointment of a defense expert and multiple continuances that the trial court denied.
- Senior Bailey filed motions, subpoenaed Dr. Ostrov (who had prepared favorable reports), then announced on the first day of the 2016 trial that he would not participate; he refused repeated judicial orders to step back and declared, "I may, but I won't."
- Mick was convicted; the trial court found Bailey in direct contempt (30 days jail, $250), and the convictions were later reversed on appeal in 2018 for ineffective assistance based on Bailey’s abandonment of the trial.
- The Erie‑Huron County Bar Association charged Bailey with multiple professional misconduct counts; a hearing panel found violations of Prof.Cond.R. 3.5(a)(5) and (6) and Prof.Cond.R. 8.4(d) and recommended a one‑year suspension with six months stayed.
- Kenneth Richard Bailey (junior) posted Facebook comments attacking the trial judge’s integrity after senior Bailey’s contempt; the board found three specific statements violated Prof.Cond.R. 8.2(a) and recommended a public reprimand.
- The Supreme Court adopted the board’s findings as to Kenneth Richard and imposed a public reprimand; it adopted most findings as to Kenneth Ronald but reduced the board’s recommended two‑year suspension (one year stayed) to a one‑year suspension with six months stayed.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did senior Bailey violate professional rules by refusing to participate and disobeying court orders? | Relator: Bailey’s refusal and repeated disobedience were undignified, disruptive, and prejudicial to administration of justice (violations of Prof.Cond.R. 3.5(a)(6) and 8.4(d)). | Bailey: He acted to protect client’s constitutional rights after the court refused a new expert and continuance; initial instruction to "step back" was permissive and court misapprehended his motion. | Court upheld findings: Bailey violated Prof.Cond.R. 3.5(a)(5) and (6) and 8.4(d); his conduct was deliberate, not ethically compelled. |
| Did panel err in excluding evidence of a 2019 discovery violation at Mick’s retrial? | Relator: evidence was irrelevant to Bailey’s 2016 conduct (panel excluded it). | Bailey: Exclusion prevented presentation of relevant defense evidence. | Court: No abuse of discretion; 2019 discovery violations could not justify or mitigate Bailey’s 2016 refusal to proceed. |
| Which aggravating/mitigating factors and sanction are appropriate for senior Bailey? | Relator/board: aggravators include multiple offenses, lack of remorse; recommend two‑year suspension with one year stayed to protect public and deter judges‑order defiance. | Bailey: Long good record, no dishonest motive, served contempt sanctions; recommended lighter or stayed sanction. | Court: Aggravators proved; but giving weight to contempt punishment and mitigating factors, imposed one‑year suspension with six months stayed on condition of no further misconduct. |
| Did Kenneth Richard violate Prof.Cond.R. 8.2(a) by Facebook posts impugning the judge? | Relator: Three specific public statements were false or recklessly made and undermined judicial integrity. | Kenneth: Posts were emotional, based on observation; later apologized and removed posts. | Court: Adopted board’s finding that three statements were false/reckless; imposed a public reprimand given mitigating factors (no prior discipline, remorse, corrective efforts). |
Key Cases Cited
- Disciplinary Counsel v. Rohrer, 919 N.E.2d 180 (Ohio 2009) (discipline for deliberate disobedience of court orders despite asserted justification)
- Disciplinary Counsel v. Gardner, 793 N.E.2d 425 (Ohio 2003) (objective standard for lawyer statements about judges under Prof.Cond.R. 8.2(a))
- Disciplinary Counsel v. Greene, 655 N.E.2d 1299 (Ohio 1995) (lawyer duties to the court limit zealous advocacy)
- Stark Cty. Bar Assn. v. Ake, 855 N.E.2d 1206 (Ohio 2006) (conditioning suspension for contumacious conduct)
- Mahoning Cty. Bar Assn. v. Sakmar, 938 N.E.2d 355 (Ohio 2010) (suspension for repeated contempt, neglect, and failure to comply with court orders)
- Disciplinary Counsel v. Grimes, 614 N.E.2d 740 (Ohio 1993) (public reprimand for public criticisms of a judge)