DISCIPLINARY COUNSEL v. HALE
No. 2013-1622
Supreme Court of Ohio
Submitted September 23, 2014-Decided November 18, 2014
2014-Ohio-5053
Analysis
{¶ 6} We affirm the court of appeals’ decision dismissing Nickelson‘s petition. To get a writ of mandamus, Nickelson must establish a clear legal right to the requested relief, a clear legal duty on the part of Judge Bowling to grant it, and the lack of an adequate remedy in the ordinary course of the law. State ex rel. Waters v. Spaeth, 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6.
{¶ 7} Nickelson has already twice moved for a hearing regarding withdrawal of his plea and has twice appealed the result. Appeal is generally considered an adequate remedy sufficient to preclude a writ. State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141, 228 N.E.2d 631 (1967), paragraph three of the syllabus. Nickelson had and exercised an adequate remedy in the ordinary course of the law by way of his motions and the appeal of the denial of those motions. He therefore is not entitled to a writ.
{¶ 8} Because the court of appeals was correct in granting the motion to dismiss, we affirm.
Judgment affirmed.
O‘CONNOR, C.J., and PFEIFER, O‘DONNELL, LANZINGER, KENNEDY, FRENCH, and O‘NEILL, JJ., concur.
LeShawn Nickelson, pro se.
{¶ 1} Respondent, Harland Hanna Hale of Columbus, Ohio, Attorney Registration No. 023464, was admitted to the Ohio bar in 1979.
{¶ 2} In April 2013, relator, disciplinary counsel, submitted a complaint to the Board of Commissioners on Grievances and Discipline. That complaint alleged that while serving as judge in the Environmental Division of the Franklin County Municipal Court, Hale committed multiple ethical violations when he dismissed a speeding ticket issued to his personal attorney without the prosecutor‘s involvement and when he subsequently vacated the dismissal entry. The board certified the complaint, and the secretary of the board appointed a three-member panel to hear the case.
{¶ 3} Hale resigned from the bench on May 24, 2013.
{¶ 4} In September 2013, the parties entered into a consent-to-discipline agreement setting forth stipulations of fact and rule violations and an agreed sanction of a six-month suspension from the practice of law. The board adopted the consent-to-discipline agreement, but we rejected it and remanded this matter to the board for further proceedings, including the consideration of a harsher sanction. 137 Ohio St.3d 1406, 2013-Ohio-5038, 997 N.E.2d 550.
{¶ 5} On remand, the parties submitted stipulations of fact, misconduct, and aggravating and mitigating factors identical to those contained in their consent-to-discipline agreement. They also submitted six stipulated exhibits and a joint brief in which they once again urged the panel to recommend a six-month suspension for Hale‘s misconduct.
{¶ 6} Hale was the only witness to testify at the March 3, 2014 panel hearing. On May 19, 2014, he moved the panel for leave to correct his testimony at that hearing. The panel issued a report adopting the parties’ stipulations of fact and misconduct. Despite finding that Hale gave false and misleading testimony at the hearing, the panel once again adopted the parties’ stipulated sanction of a six-month suspension from the practice of law.
{¶ 7} The board adopted the panel‘s findings of fact and misconduct. However, the board also issued a separate entry unanimously dismissing an alleged violation of
{¶ 8} Relator objects to the board‘s dismissal of the alleged violation of
{¶ 9} We adopt the board‘s findings of fact and conclusions of law, but we also find that Hale has violated
Misconduct
{¶ 10} As the only judge in the Environmental Division of the Franklin County Municipal Court, Hale‘s jurisdiction was not limited solely to environmental matters. Like all Franklin County Municipal Court judges, he served in rotation as a duty judge, handling criminal arraignments, traffic violations, and other routine judicial matters.
{¶ 11} In late 2011, attorney Patrick Quinn was representing Hale in a civil suit in the Franklin County Court of Common Pleas and the United States District Court for the Southern District of Ohio. Hale was aware of that representation.
{¶ 12} On November 21, 2011, an Ohio State Highway Patrol trooper issued a speeding ticket to Quinn. Quinn failed to appear at his arraignment, which was scheduled for 9:00 a.m. on December 8, 2011, and a warrant was issued for his arrest. Having apparently realized his error, Quinn telephoned Hale, who was serving as the duty judge, and asked Hale to arrange for him to be arraigned in absentia.
{¶ 13} Hale testified that he instructed Quinn to get the court‘s case file and bring it to him. When Hale came to the file in the stack of contested matters awaiting his review on December 12, 2011, he falsely completed a judgment entry form to state “Prosecutor dismisses: Count 1, Section 4511.21,” and imposed no fines or costs. In his stipulations, and again at the panel hearing, Hale admitted that he signed that judgment entry without any input or consent from the prosecutor. He testified, “I did that. No one asked me to do it.” When questioned, “And so on your own volition you dismissed it, knowing it was Pat Quinn from the law firm representing you?” he answered, “Yes. It was an error in judgment, and I regret it. Trust me, I regret it. I‘ve had so many sleepless nights over this, your Honor, that even you and I couldn‘t count them both.”
{¶ 14} Approximately four months after Hale dismissed Quinn‘s traffic matter, the city‘s chief prosecutor, Lara Baker, received a media inquiry regarding Hale‘s disposition of the case and began to investigate the matter.
{¶ 15} On April 10, 2012, Hale engaged in an ex parte communication by leaving a voicemail message for Baker and sending an e-mail to Quinn, asking them both to sign an entry that he had prepared to vacate the December 2011 dismissal of Quinn‘s case and schedule an arraignment. In that entry, Hale stated only that it was improper for him to have handled the matter and that the city prosecutor‘s office had agreed to the entry. Quinn signed the entry, but Baker refused. Consequently, Hale prepared a separate judgment entry to vacate the dismissal and recuse himself from Quinn‘s case. Quinn ultimately pleaded guilty to the charged offense and paid $55 in fines and $116 in court costs.
{¶ 16} Before the panel, Hale testified that after he resigned his judicial position, he did not act as an attorney on any legal matters until “late November, early December” 2013. But on May 19, 2014—more than two months after the hearing—he moved the panel to correct his testimony and supplement the record. In an affidavit submitted with his motion, Hale averred that he had represented five separate clients in legal matters pending before Franklin County courts before the “late November, early December” timeframe identified in his testimony. He claimed that he did not recall those matters when he testified, but that they were brought to his attention sometime after the panel hearing.
{¶ 17} The panel found that clear and convincing evidence supported the parties’ stipulations that Hale‘s conduct violated
{¶ 18} The board adopted the panel‘s findings of fact and misconduct with one exception: the board voted unanimously to dismiss the alleged and stipulated violation of
{¶ 19} Relator objects to the board‘s dismissal, arguing that (1) Hale‘s conduct is sufficiently egregious to warrant the additional finding that his conduct adversely reflects on his fitness to practice law, (2) the parties stipulated—after this court had decided Bricker—that Hale‘s conduct warranted such a finding, and (3)
{¶ 20} Initially, Hale took no position on relator‘s objection to the board‘s dismissal of the alleged violation of
{¶ 21}
{¶ 22} A unanimous dismissal by the panel precludes further review of the dismissal by either the board or this court. See, e.g., Cuyahoga Cty. Bar Assn. v. Marosan, 109 Ohio St.3d 439, 2006-Ohio-2816, 848 N.E.2d 837, ¶ 13 (declining relator‘s request that the court review the panel‘s unanimous dismissal of a count for lack of sufficient evidence); Columbus Bar Assn. v. Dougherty, 105 Ohio St.3d 307, 2005-Ohio-1825, 825 N.E.2d 1094, ¶ 9 (unanimous dismissal of a count by the panel precludes further review of the dismissal either by the board or this court). If, however, a hearing panel merely states its intention to dismiss an alleged rule violation in the certified report of the proceedings, findings of fact, conclusions of law, and recommendations that it submits to the board pursuant to
{¶ 23} In Doellman we stated, “When the panel recommends dismissal, the board may dismiss the count by reporting the dismissal to the secretary of the board, who shall notify the same persons and organizations that would have received notice if the complaint had been dismissed by the hearing panel.
{¶ 24} We now note that
{¶ 25} In Disciplinary Counsel v. Bricker, 137 Ohio St.3d 35, 2013-Ohio-3998, 997 N.E.2d 500, ¶ 21, we held that before we will find a violation of the catchall provision of
{¶ 26} Here, relator contends that Hale‘s conduct warrants a finding that he violated
{¶ 27} Given the seriousness of Hale‘s initial misconduct—which called into question the independence, integrity, and impartiality of the entire judiciary—his efforts to cover his tracks with additional misconduct rather than accept responsibility for his conduct, and his own admission that his conduct warrants a finding that he violated
Sanction
{¶ 28} When imposing sanctions for attorney misconduct, we consider relevant factors, including the ethical duties that the lawyer violated and the sanctions we have imposed for comparable misconduct. 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 BCGD Proc.Reg. 10(B). Disciplinary Counsel v. Broeren, 115 Ohio St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21.
{¶ 29} The parties stipulated to just one aggravating factor—that Hale acted with a dishonest or selfish motive. See BCGD Proc.Reg. 10(B)(1)(b). The board adopted that finding but also found that Hale gave false and misleading testimony
{¶ 30} As mitigating factors, the parties stipulated and the board found that Hale (1) has no prior disciplinary record, (2) made a full and free disclosure of his actions and demonstrated a cooperative attitude toward the disciplinary proceedings, (3) has a reputation for significant involvement in the community and for his commitment to the judicial system and the citizens he served, and (4) having acknowledged that his conduct was not appropriate, resigned from his position as a judge of the Franklin County Municipal Court effective May 24, 2013. See BCGD Proc.Reg. 10(B)(2)(a), (d), (e), and (f).
{¶ 31} Although we rejected the parties’ consent-to-discipline agreement and remanded this case for consideration of a harsher sanction, the parties have once again stipulated that a six-month suspension from the practice of law is the appropriate sanction for Hale‘s misconduct. In support of that sanction, they submitted a joint brief addressing the sanctions imposed by this court and courts of other jurisdictions in ticket-fixing cases.
{¶ 32} The board, however, focused on the sanctions we imposed in six separate cases that address the various types of misconduct present in this case.
{¶ 33} In Disciplinary Counsel v. Smakula, 39 Ohio St.3d 143, 144-145, 529 N.E.2d 1376 (1988), we imposed a one-year suspension on an assistant prosecuting attorney who had been convicted of three misdemeanors for his role in a ticket-fixing scheme that was orchestrated by a common pleas court bailiff. While Hale‘s misconduct involved fixing a single traffic ticket and attempting to cover up that misdeed, Smakula involved a scheme to fix multiple traffic-related charges over a period of time, possibly for profit. Id. at 144.
{¶ 34} The board observed that on at least two occasions, we have imposed fully stayed suspensions for sitting judges or magistrates who engaged in a pattern of misconduct or multiple incidents of misconduct in violation of
{¶ 35} And in Disciplinary Counsel v. Plough, 126 Ohio St.3d 167, 2010-Ohio-3298, 931 N.E.2d 575, we imposed a one-year suspension with six months stayed
{¶ 36} The board also considered two recent cases in which we disciplined public officials—other than judges—who had committed misconduct that violated the public trust. In Disciplinary Counsel v. Dann, 134 Ohio St.3d 68, 2012-Ohio-5337, 979 N.E.2d 1263, we imposed a six-month suspension on former Ohio Attorney General Marc Dann, who had solicited improper compensation and filed false financial disclosures. In addition to the sanction we imposed for his professional misconduct, Dann was convicted of two first-degree misdemeanors, he resigned from his elected office, and he was disqualified from holding public office for seven years. And in Disciplinary Counsel v. Engel, 132 Ohio St.3d 105, 2012-Ohio-2168, 969 N.E.2d 1178, we imposed a six-month suspension on an attorney who, while serving as chief legal counsel for the Ohio Department of Public Safety, initiated and maintained an e-mail filter for almost one year that intercepted confidential communications about pending civil and criminal investigations conducted by the Ohio Inspector General in conjunction with other law-enforcement agencies. Id. at ¶¶ 4-6.
{¶ 37} The board found that while Hale‘s conduct and motivation were obviously dishonest, he engaged in a single incident of misconduct and, therefore, his conduct was less egregious than the multiple instances or patterns of misconduct at issue in Smakula, Elum, McCormack, Plough, Dann, and Engel. The board credited Hale for his voluntary resignation from his judicial office, the absence of a prior disciplinary record, his full and free disclosure of his conduct, and his cooperation in the disciplinary process. And while recognizing that Hale gave false and misleading testimony at his disciplinary hearing regarding his legal work after he had resigned, the board nonetheless found that the parties’ initial stipulated sanction of a six-month actual suspension was “well in line with the Court‘s previous cases related to judicial misconduct of this nature.”
{¶ 38} Relator objects to the board‘s recommended sanction and contends that a greater sanction is warranted because Hale falsely testified that he resumed the practice of law in November or December 2013, when, in fact, he had appeared and represented at least five clients from mid-June through late October 2013, including in the very court from which he had resigned in May 2013. Relator speculates that Hale‘s deception was “a calculated, strategic decision” to ensure
{¶ 39} There can be no doubt that Hale‘s underlying misconduct in unilaterally dismissing his personal attorney‘s speeding ticket with a false journal entry and his effort to cover up that misconduct are serious violations of his ethical duties as both an attorney and a judge. We, likewise, acknowledge that false testimony from a member of the Ohio bar is unacceptable under any circumstances—but that it is particularly perverse when it occurs in the course of a disciplinary proceeding. Despite the addition of this aggravating factor after we had rejected the parties’ consent-to-discipline agreement and remanded this matter for consideration of a harsher sanction, we now conclude that the six-month sanction initially recommended by the parties is the appropriate sanction for his misconduct. In reaching this conclusion, we emphasize that (1) Hale practiced law for approximately 30 years without incident, (2) his misconduct was limited to a single case to which he had a personal connection, (3) justice was ultimately served in that matter, (4) in contrast to the facts of Plough, no litigants suffered permanent harm as a result of Hale‘s misconduct, and (5) Hale acknowledged that his actions were not appropriate and voluntarily resigned from the bench within one month of relator‘s complaint being certified to the board.
{¶ 40} Accordingly, Harland Hanna Hale is suspended from the practice of law in Ohio for six months. Costs are taxed to Hale.
Judgment accordingly.
PFEIFER, O‘DONNELL, KENNEDY, and FRENCH, JJ., concur.
O‘CONNOR, C.J., and LANZINGER, J., dissent and would impose a one-year suspension.
Scott J. Drexel, Disciplinary Counsel, Joseph M. Caligiuri, Chief Assistant Disciplinary Counsel, and Audrey E. Varwig, Assistant Disciplinary Counsel, for relator.
George D. Jonson, for respondent.