DISCIPLINARY COUNSEL v. BROCKLER
No. 2015-0280
Supreme Court of Ohio
Submitted May 6, 2015—Decided February 25, 2016.
145 Ohio St.3d 270, 2016-Ohio-657
Groth & Associates and Tim A. Dugan, for appellee.
Timothy Young, Ohio Public Defender, and Valerie Kunze, Assistant Public Defender, urging affirmance for amicus curiae, Office of the Ohio Public Defender.
Per Curiam.
{¶ 1} Respondent, Aaron James Brockler of Lakewood, Ohio, Attorney Registration No. 0078205, was admitted to the practice of law in Ohio in 2004. In an April 7, 2014 complaint, relator, disciplinary counsel, charged Brockler with engaging in professional misconduct while he served as the assistant Cuyahoga County prosecutor assigned to a murder case. Specifically, relator alleged that while investigating the shooting death of Kenneth “Blue” Adams, Brockler created a fictitious Facebook account and used it to contact the alibi witnesses of Damon Dunn, who had been indicted for the murder.
{¶ 2} The parties entered into stipulations of fact and submitted 15 stipulated exhibits. After a two-day hearing, a panel of the Board of Professional Conduct issued a report finding that Brockler‘s use of the fictitious Facebook account to contact the alibi witnesses involved dishonesty, fraud, deceit, or misrepresentation and that it prejudiced the administration of justice. It recommended, however, that we dismiss an alleged violation arising from certain statements that Brockler made to the media.
Misconduct
{¶ 4} Before he was indicted, Dunn denied any involvement in Adams‘s death and told Cleveland police that at the time of the murder, he was with his girlfriend, Sarah Mossor, and her friend Marquita Lewis. Brockler did not believe that Dunn‘s alibi was true, but Mossor and Lewis refused to talk with him on numerous occasions when he identified himself as the assistant prosecutor assigned to the case.
{¶ 5} As part of his investigation, Brockler listened to recordings of telephone calls that Dunn had made from the Cuyahoga County Jail. On the morning of December 14, 2012, he listened to a recording of a heated conversation in which Dunn and Mossor argued over Dunn‘s fear that Mossor would not be a reliable witness and Mossor‘s belief that Dunn had not been faithful to her. Mossor suspected that Dunn had had a romantic relationship with a woman named “Taisha” and indicated that if her suspicion was true, she would end her relationship with Dunn. Believing that Mossor‘s relationship with Dunn was near a breaking point, Brockler saw an opportunity to exploit her feelings of distrust and get her to recant her support for Dunn.
{¶ 6} Recalling a Facebook ruse he had used in a prior case, Brockler planned to create a fictitious Facebook identity to contact Mossor. He attempted to obtain assistance from several Cleveland police detectives and the chief investigator in the prosecutor‘s office, but they were not available. Believing that time was of the essence, Brockler decided to proceed with the Facebook ruse on his own approximately one hour after he heard the recording of Mossor and Dunn‘s conversation. He created a Facebook account using the pseudonym “Taisha Little,” a photograph of an African-American female that he downloaded from the Internet, and information that he gleaned from Dunn‘s jailhouse telephone calls. He also added pictures, group affiliations, and “friends” he selected based on Dunn‘s telephone calls and Facebook page.
{¶ 7} Posing as Little, Brockler simultaneously contacted Mossor and Lewis in separate Facebook chats. He falsely represented that Little had been involved with Dunn, that she had an 18-month-old child with him, and that she needed him to be released from jail so that he could provide child support. He also discussed Dunn‘s alibi as though it were false in an attempt to get Mossor and
{¶ 8} After chatting for several hours, Brockler sensed that Mossor and Lewis were suspicious, so he shut down the chat and deleted the fictitious account. He testified that he printed copies of the chats and placed them in a file—with the intent to provide copies to defense counsel—before he deleted the account, but those copies were never found. He attended five pretrial conferences from January through April 2013 but did not disclose the circumstances or content of his conversations with Mossor or Lewis.
{¶ 9} Brockler was scheduled to take an extended medical leave beginning April 16, 2013, and assistant prosecutor Kevin Filiatraut was assigned to handle the Dunn case in his absence. Brockler gave his file to Filiatraut, reviewed the case with him, and attended a pretrial conference with him. Brockler also disclosed that he might need to be a witness at trial because both Mossor and Lewis had told him they would not support Dunn‘s alibi, although they were afraid to say so in court. Brockler did not disclose how he obtained that information.
{¶ 10} On the second day of Brockler‘s leave and less than one week before Dunn‘s trial, a police detective gave Filiatraut several documents, including a transcript of Lewis‘s chat with “Taisha Little” (obtained from Lewis) and Lewis‘s written statement about the chat. Filiatraut immediately made the documents available to defense counsel and began to investigate Little.
{¶ 11} Although Filiatraut quickly informed Brockler about this new information, Brockler waited nearly three weeks to disclose that he was “Taisha Little.” Upon learning of Brockler‘s ruse, Filiatraut reported this information to his superiors. The prosecutor‘s office withdrew from the case and the court appointed the attorney general to serve as a special prosecutor. Shortly after Brockler returned from his medical leave in June 2013, his employment was terminated.
{¶ 12} Soon thereafter, Brockler spoke with reporters from the Cleveland Plain Dealer and a local television affiliate in response to Cuyahoga County Prosecuting Attorney Timothy McGinty‘s statements that Brockler was fired for his unethical conduct in creating false evidence, lying to witnesses and another prosecutor, and damaging the prosecution‘s chances in a murder case in which an innocent man was killed at work.
{¶ 13} The subsequently published article and broadcasted interview included statements by Brockler—which he does not dispute—to the effect that (1) prosecutors have long engaged in ruses to obtain the truth, (2) his firing was an overreaction because he only did what the police should have done, (3) he engaged in an investigative ruse to uncover the truth and keep a murderer behind bars, (4) the public was better off because of his actions, (5) if he had not
{¶ 14} Approximately one year after Brockler‘s termination, Dunn was convicted of aggravated murder, murder, felonious assault, and having weapons while under disability. The parties stipulated in January 2015 that his conviction was on appeal, but it has since been affirmed, see State v. Dunn, 8th Dist. Cuyahoga No. CR-12-568849-A, 2015-Ohio-3138,
{¶ 15} Brockler admitted that the Facebook ruse violated the plain language of
{¶ 16} Noting that a comment to
{¶ 17} Instead, the board found that
{¶ 18} Brockler argued that his conduct did not violate
Sanction
{¶ 20} When imposing sanctions for attorney misconduct, we consider relevant factors, including the ethical duties that the lawyer violated and the sanctions imposed in similar cases. Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶ 16. In making a final determination, we also weigh evidence of the aggravating and mitigating factors listed in
{¶ 21} As an aggravating factor, the board found that Brockler‘s deceptions and misrepresentations in his contacts with Mossor and Lewis resulted in multiple violations of
{¶ 22} In mitigation, the board found that Brockler did not have a prior disciplinary record, made a full and free disclosure and cooperated in the disciplinary process, submitted numerous letters attesting to his good character and reputation for honesty, and acknowledged that the loss of his “dream job” was a form of penalty. See
{¶ 23} Despite advocating for a public-policy exception for deceptive prosecutorial investigation tactics, Brockler admitted that his conduct violated the plain language of
{¶ 24} The board acknowledged that misconduct involving dishonesty, fraud, deceit, or misrepresentation generally warrants an actual suspension from the practice of law. See, e.g., Disciplinary Counsel v. Karris, 129 Ohio St.3d 499, 2011-Ohio-4243, 954 N.E.2d 118, ¶ 16; Disciplinary Counsel v. Fowerbaugh, 74 Ohio St.3d 187, 658 N.E.2d 237 (1995), syllabus.
{¶ 25} But the board also recognized that we may deviate from that rule in the presence of significant mitigating evidence. See Disciplinary Counsel v. Potter, 126 Ohio St.3d 50, 2010-Ohio-2521, 930 N.E.2d 307 (absence of a prior disciplinary record, efforts to rectify the consequences of the misconduct, full cooperation in the investigation, self-reporting, and evidence of good character and reputation apart from the charged misconduct sufficient to fully stay 12-month suspension for violating fiduciary duty as the executor of an estate); Disciplinary Counsel v. Niermeyer, 119 Ohio St.3d 99, 2008-Ohio-3824, 892 N.E.2d 434, ¶ 12-13 (absence of prior misconduct, self-reporting, cooperation in the disciplinary process, acceptance of responsibility for misconduct, and evidence of good character and reputation sufficient to stay the entire 12-month suspension for altering a document to make it appear that it had been timely filed). See also King, 84 Ohio St.3d 174, 702 N.E.2d 862 (imposing a fully stayed one-year suspension based upon the presence of significant mitigating evidence); Statzer, 101 Ohio St.3d 14, 2003-Ohio-6649, 800 N.E.2d 1117 (imposing a fully stayed six-month suspension based upon the presence of significant mitigating evidence).
{¶ 26} Noting the substantial mitigating factors present in this case—including the board‘s finding that the misconduct was an isolated incident in an otherwise notable legal career—the board recommends that we suspend Brockler for one year, but stay that suspension on the conditions that he engage in no further misconduct and that he pay the costs of this action.
{¶ 27} Having determined that the board‘s findings of fact and conclusions of law are supported by the record and the law, we adopt the board‘s report, find that Brockler‘s use of a deceptive investigative technique to contact Dunn‘s alibi witnesses violated
{¶ 28} Accordingly, Aaron James Brockler is suspended from the practice of law in Ohio for one year, fully stayed on the conditions that he engage in no further misconduct and pay the costs of this proceeding. If he fails to comply
Judgment accordingly.
PFEIFER, KENNEDY, FRENCH, and O‘NEILL, JJ., concur.
O‘CONNOR, C.J., dissents with an opinion in which LANZINGER, J., joins.
O‘DONNELL, J., dissents, with opinion.
O‘CONNOR, C.J., dissenting.
{¶ 29} The preamble to the Ohio Rules of Professional Conduct, entitled “A Lawyer‘s Responsibilities,” lays out broad obligations, recognizing that “a lawyer not only represents clients but has a special responsibility for the quality of justice” and that that responsibility extends “to practicing lawyers even when they are acting in a nonprofessional capacity.”
{¶ 30} The substantial evidence of wrongdoing and the aggravating factors in this case prove that Brockler committed significant violations of the Rules of Professional Conduct. Yet faced with Brockler‘s glaring disdain for the ethical responsibilities this court imposes on all attorneys in this state, a majority of this court imposes only a one-year suspension, fully stayed.
{¶ 31} In the past, our punishment for lawyers’ conduct involving dishonesty, fraud, deceit, or misrepresentation has been significantly harsher. We indefinitely suspended an attorney who had lied to the disciplinary counsel‘s investigator. Cleveland Metro. Bar Assn. v. Gruttadaurio, 136 Ohio St.3d 283, 2013-Ohio-3662, 995 N.E.2d 190, ¶ 2-4. We imposed a one-year suspension, with six months stayed on conditions, on an attorney who had falsely advised that her client‘s case was being settled. Disciplinary Counsel v. Johnson, 122 Ohio St.3d 293, 2009-Ohio-3501, 910 N.E.2d 1034, ¶ 7, 14. We suspended a lawyer for six months for attempting to advance his client‘s interests with evidence that the lawyer knowingly fabricated. Cleveland Bar Assn. v. McMahon, 114 Ohio St.3d 331, 2007-Ohio-3673, 872 N.E.2d 261, ¶ 25, 30,
{¶ 33} In contrast, the stakes in this case involved imprisonment for up to a life term. Brockler actively hindered the pursuit of justice in a criminal proceeding on multiple occasions, by lying to alibi witnesses in an effort to make them change their statements. He made every effort to hide his deceptive activities until they were uncovered, and then he refused to admit that his actions were wrong.
{¶ 34} Failing to require Brockler to serve even a single day of his suspension does little to establish that this court will ensure the integrity of prosecutors and the ethical administration of justice. Indeed, none of the cases upon which the majority opinion relies to support a fully stayed suspension involves a lawyer lying in a criminal case to the detriment of a criminal defendant and, ultimately, to the detriment of the public‘s faith in our courts and in justice.1
{¶ 35} The stakes in this case are significantly higher than those in the cases cited in the majority opinion. The courts are the bulwark of justice, and we must prove that government is trustworthy and working tirelessly but fairly, ethically, and honestly in support of justice. To do that, we must require the offices of Ohio‘s prosecuting attorneys to strive for flawless obedience to the ethical rules governing all lawyers practicing in the state.
{¶ 36} Despite Brockler‘s claims about his training in the prosecutor‘s office, Brockler admits that his actions at issue in this case were not directed by a
{¶ 37} I am cognizant of Brockler‘s desire to serve the public and to do what is “right” by protecting society from dangerous criminal defendants, just as I am aware of the intensely difficult nature of such work, which often involves tragic circumstances, elicits visceral reactions, and presents great risks for both the accuser and the accused. See Disciplinary Counsel v. LoDico, 106 Ohio St.3d 229, 2005-Ohio-4630, 833 N.E.2d 1235, ¶ 30. Although criminal cases “bring the responsibility and necessity” of zealous representation, a prosecuting attorney “is not endowed with a concomitant right to denigrate the court in discharging that responsibility.” Id.
{¶ 38} In light of the series of lies and misrepresentations here and the impact they have on the profession and our communities, I would indefinitely suspend Brockler‘s license to practice law in this state.
Conclusion
{¶ 39} Because I believe that the court‘s sanction in this case is entirely incongruous with Brockler‘s behavior, I cannot subscribe to it. For his ethical misdeeds, I would indefinitely suspend Brockler‘s license to practice law in the state of Ohio. Accordingly, I dissent.
LANZINGER, J., concurs in the foregoing opinion.
O‘DONNELL, J., dissenting.
{¶ 40} Respectfully, I dissent.
{¶ 41} Respondent engaged in unacceptable dishonest conduct that materially affected the administration of justice, and I would impose an indefinite suspension.
Scott J. Drexel, Disciplinary Counsel, and Donald M. Scheetz, Assistant Disciplinary Counsel, for relator.
Montgomery, Rennie & Jonson, George D. Jonson, and Kimberly Vanover Riley, for respondent.