DISCIPLINARY COUNSEL v. PORZIO
No. 2019-1746
Supreme Court of Ohio
April 23, 2020
2020-Ohio-1569
[Until this оpinion appears in the Ohio Official Reports advance sheets, it may be cited as Disciplinary Counsel v. Porzio, Slip Opinion No. 2020-Ohio-1569.]
NOTICE
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SLIP OPINION NO. 2020-OHIO-1569
DISCIPLINARY COUNSEL v. PORZIO.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Disciplinary Counsel v. Porzio, Slip Opinion No. 2020-Ohio-1569.]
Judges-Magistrates-Misconduct-
(No. 2019-1746-Submitted Jаnuary 29, 2020-Decided April 23, 2020.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme Court, No. 2019-016.
{¶ 1} Respondent, Barbara Porzio, of North Royalton, Ohio, Attorney Registration No. 0003203, was admitted to the practice of law in Ohio in 1979.
{¶ 2} In March 2019, relator, disciрlinary counsel, charged Porzio with engaging in an improper ex parte communication and violating other rules of the Code of Judicial Conduct while she served as a
{¶ 3} Based on our review of the record, we adopt the board‘s findings of misconduct and recommended sanction.
Misconduct
{¶ 4} On August 2, 2017, Walter Gerino filed a petition for a civil stalking protection order against his neighbor, Paul Fish. The following day, Fish filed a counterpetition against Gerino. On August 16, 2017, Porzio, while serving as a magistrate, held a full hearing on both petitions. Gerino and Fish appeared pro se and both testified on their own behalf. After the close of evidence, Porzio requested that the pаrties exit the courthouse separately and that Fish leave first.
{¶ 5} After Fish walked out of the courtroom, Porzio engaged in a 23-minute conversation with Gerino and his witnesses. Porzio repeatedly criticized Fish and commented on his credibility. Shе stated that Mr. Fish was “such a liar,” “made himself look like a fool,” was “clueless,” and acted “like he‘s 10 years old.” She also discussed the evidence, explained the legal standard for obtaining a civil stalking protection order, and indicated how she intended to decide the matter-that is, early in her conversation with Gerino, she stated that neither party had proved his case.
{¶ 6} In addition to discussing substantive matters, Porzio made offhand and unnecessary comments abоut the parties’ religions and ethnic backgrounds. For example, she stated, “[Fish] said he was a minister. What‘s the story with that? * * * A Christian minister even though he‘s Jewish” and “Do Jewish people have halos? I think they have angels though, right? * * * The Catholics got lots of angels or uh * * * Halos.” Porzio also used inappropriate slang and profanity, such as stating that some of Fish‘s testimony had been “such bull shit.” She said to Gerino, “[A]t the end of this, who looked like * * * an asshole and who looked like a good guy?” At one pоint, Porzio left the courtroom to confront Fish, who had apparently remained seated in the hallway outside the courtroom. At that point, one of Gerino‘s witnesses stated, “She don‘t like him, does she?”
{¶ 7} A few months later, Porzio issued a magistrate‘s decision granting Gerino a five-year civil protection order and denying Fish‘s counterpetition-despite the fact that she had previously told Gerino that neither party had proved his case. At her disciplinary hearing, Porzio аdmitted that someone in Fish‘s position might assume that her ex parte communication with the opposing party had influenced her decision.
{¶ 8} “The Code of Judicial Conduct applies to magistrates as well as judges.” Disciplinary Counsel v. Holben, 155 Ohio St.3d 618, 2018-Ohio-5097, 122 N.E.3d 1274, ¶ 4. The board found that Pоrzio‘s conduct violated three rules:
{¶ 9}
{¶ 10}
{¶ 11}
{¶ 12} We agree with the board‘s findings of misconduct.
Sanction
{¶ 13} When imposing sanctions for attorney and judicial misconduct, we consider all relevant factors, including the ethical duties that the lawyer violated, the aggravating and mitigating factors listed in
{¶ 14} The board did not find the existence of any of the aggravating factors listed in
{¶ 15} In mitigation, the board found that Porzio has a clеan disciplinary record in over 40 years of practice, she lacked a dishonest or selfish motive, she had a cooperative attitude toward the disciplinary proceedings, and other penalties had been imposed for her misconduct-namely, she was terminated from her position as a magistrate. See
{¶ 16} To support their recommended sanction of a public reprimand, the parties cited several judicial-disciplinе cases involving misconduct similar to that in this case, including Holben, 155 Ohio St.3d 618, 2018-Ohio-5097, 122 N.E.3d 1274 (publicly reprimanding a magistrate for failing to disqualify herself from three cases in which she had participated personally and substantially as a government lawyer prior to beсoming a magistrate), and Disciplinary Counsel v. Stuard, 121 Ohio St.3d 29, 2009-Ohio-261, 901 N.E.2d 788 (publicly reprimanding a judge for engaging in ex parte communications with an assistant prosecutor in a capital case that resulted in the prosecutor‘s preparation of a sentencing ordеr without defense counsel‘s involvement).
{¶ 17} The board, however, recommends that we impose a conditionally stayed six-month suspension. The board found Porzio‘s ex parte announcement of her intended decision to be a strong fаctor weighing in favor of a suspension rather than a public reprimand. But based on Porzio‘s lengthy and unblemished service as a magistrate, her numerous hours dedicated to educating other magistrates, and her reference letters еvidencing her strong character, the board recommends that the suspension be stayed on conditions, including that Porzio complete CLE courses on judicial ethics and bias.
{¶ 18} We agree with the board that a sanction greater than a public reprimand is warranted in this case. Porzio not only announced her intended decision to one party during a lengthy ex parte communication, she ridiculed the absent party, made inappropriate comments about the parties’ religions, used profanity, and later failed to recuse herself from the case, despite having had the time to review the audio recording of her ex parte communication and reflect on how her aсtions might have reasonably created at least the appearance of partiality. Rather than promoting the evenhanded administration of justice, these actions erode the public‘s confidence in the integrity and impartiality of the judiciary.
{¶ 19} We also agree, however, that the significant mitigating evidence here-in addition to the fact that Porzio is no longer serving in any judicial capacity-weighs in favor of staying Porzio‘s entire suspension. We therеfore adopt the board‘s recommended sanction. See, e.g., Disciplinary Counsel v. Elum, 133 Ohio St.3d 500, 2012-Ohio-4700, 979 N.E.2d 289 (imposing a conditionally stayed six-month suspension on a judge for misconduct that included using vulgar and intemperate language toward a probationer, conduсting that person‘s probation review without the presence of his counsel or the prosecutor, interceding in an internal police-department investigation, and failing to recuse himself from a case relating to the investigation).
Conclusion
{¶ 20} Barbara Porzio is hereby suspended from the practice of law in Ohio for six months, with the entire suspension stayed on the conditions that (1) within six months of our disciplinary order, she complete four hours of CLE in the area of judicial ethics, with two of those hours relating to actual or implicit bias, in addition to the other requirements of
Judgment accordingly.
O‘CONNOR, C.J., and KENNEDY, FRENCH, FISCHER, DEWINE, DONNELLY, and STEWART, JJ., concur.
Joseph M. Caligiuri, Disciplinary Counsel, for relator.
Kronenberg & Belovich Law, L.L.C., and Jacob A.H. Kronenberg, for respondent.