Disciplinary Counsel v. Proctor , 131 Ohio St. 3d 215 ( 2012 )

[Cite as Disciplinary Counsel v. Proctor, 131 Ohio St.3d 215, 2012-Ohio-684.]
DISCIPLINARY COUNSEL v. PROCTOR.
[Cite as Disciplinary Counsel v. Proctor, 131 Ohio St.3d 215, 2012-Ohio-684.]
Attorney misconduct, including knowingly or recklessly making false statements
concerning the integrity of a judicial officer—Six-month suspension.
(No. 2011-0295—Submitted September 6, 2011—Decided February 23, 2012.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 09-059.
__________________
Per Curiam.
{¶ 1} Respondent, Philip Lucas Proctor of Newark, Ohio, Attorney
Registration No. 0041956, was admitted to the practice of law in Ohio in 1989.
{¶ 2} In a complaint filed on August 17, 2009, relator, disciplinary
counsel, alleged that Proctor had violated multiple provisions of the Ohio Rules of
Professional Conduct and the Supreme Court Rules for the Government of the Bar
in Ohio by making allegations of impropriety against his opposing counsel and
the trial judge either while knowing the allegations to be false or with reckless
disregard of their truth or falsity.
{¶ 3} The parties submitted stipulated exhibits and findings of fact in
which Proctor admitted that he had engaged in undignified or discourteous
conduct that was degrading to a tribunal, had made statements concerning the
qualifications or integrity of a judicial officer either while knowing them to be
false or with reckless disregard of their truth or falsity, and had failed to maintain
a respectful attitude toward the courts. Relator withdrew three alleged rule
violations, and the parties agreed that a six-month stayed suspension was the
appropriate sanction for Proctor’s misconduct.
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{¶ 4} The panel and board adopted many of the parties’ stipulated findings
of fact and all of the stipulated findings of misconduct. Although they adopted
the stipulated mitigating factors, they also found that several aggravating factors
were present. Citing those aggravating factors and Disciplinary Counsel v.
Gardner, 99 Ohio St.3d 416, 2003-Ohio-4048, 793 N.E.2d 425, the panel and
board recommend that Proctor serve an actual six-month suspension from the
practice of law in Ohio.
{¶ 5} Proctor objects to the board’s findings of fact and recommended
sanction, arguing that the two motions to dismiss that he filed should have been
considered by the entire board and granted, and that Gardner does not mandate
the imposition of an actual suspension under the facts of this case. We overrule
Proctor’s objections and adopt the board’s findings of fact and misconduct and its
recommended sanction.
Misconduct
{¶ 6} In 2002, Proctor filed a lawsuit on behalf of Julie Peterman in the
Delaware County Court of Common Pleas. Proctor withdrew as counsel in 2003,
and the following month, Peterman dismissed the action without prejudice.
Thereafter, counsel for the defendants in that action moved the court for attorney
fees. Judge W. Duncan Whitney granted the motion in 2005 and ordered Proctor
and Peterman, jointly and severally, to pay the defendants $31,995.90. Proctor
paid approximately $26,000 of that judgment.
{¶ 7} Proctor moved the court to vacate the judgment pursuant to Civ.R.
60(B), and the trial judge recused himself and transferred the case to Judge
Everett Krueger, who overruled the motion. Proctor’s request for findings of fact
and conclusions of law was denied. In a supplemental request regarding his
motion for findings of fact and conclusions of law filed on October 18, 2007,
Proctor alleged that Judge Whitney harbored a bias against him and had engaged
in ex parte communications with opposing counsel in the case and then had “gone
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to great effort to cover this up and/or deny that these things happened.” Proctor
reiterated these accusations in his appellate brief when he challenged the denial of
his motion to vacate and for relief from judgment. When Proctor made these
allegations, he did not have a reasonable belief that they were true, and therefore
he has stipulated that the allegations were recklessly made.
{¶ 8} Based upon these findings, the panel and board found that Proctor
had violated Prof.Cond.R. 3.5(a)(6) (prohibiting a lawyer from engaging in
undignified or discourteous conduct that is degrading to a tribunal) and 8.2(a)
(prohibiting a lawyer from knowingly or recklessly making false statements
concerning the integrity of a judicial officer) and Gov.Bar R. IV(2) (requiring a
lawyer to maintain a respectful attitude toward the courts).
Recommended Sanction
{¶ 9} In recommending a sanction, the panel and board considered the
aggravating and mitigating factors listed in BCGD Proc.Reg. 10. See Stark Cty.
Bar Assn. v. Buttacavoli, 96 Ohio St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818,
¶ 16.
{¶ 10} The parties have stipulated to the following mitigating factors:
Proctor does not have a prior disciplinary record, he fully and freely disclosed
information and cooperated with the disciplinary proceedings, and he paid
$26,000 pursuant to the judgment for attorney fees in the underlying litigation.
See BCGD Proc.Reg. 10(B)(2)(a), (d), and (f). They also stipulated that the
appropriate sanction for Proctor’s misconduct is a six-month stayed suspension.
{¶ 11} The board adopted the parties’ stipulations regarding mitigation but
pointed out that Proctor’s $26,000 sanction was the impetus for, rather than the
result of, the conduct charged in this case. It also found that Proctor’s pattern of
misconduct involving multiple offenses and his continued claims that he had a
reasonable belief to support the allegations he had made against Judge Whitney,
despite his stipulations to the contrary, were aggravating factors. See BCGD
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Proc.Reg. 10(B)(1)(c), (d), and (g). Citing these aggravating factors and the six-
month actual suspension we imposed for comparable misconduct in Disciplinary
Counsel v. Gardner, 99 Ohio St.3d 416, 2003-Ohio-4048, 793 N.E.2d 425, the
board concluded that a six-month actual suspension was the appropriate sanction
for Proctor’s misconduct.
Proctor’s Objections
{¶ 12} Proctor objects to the board’s findings of fact and misconduct, as
well as its recommended sanction. In his first objection, he argues that the full
board should have considered his two motions to dismiss relator’s complaint after
they were overruled by the panel chair. In his first motion to dismiss, Proctor
argued that he should not be punished for the allegations he made against Judge
Whitney, because Prof.Cond.R. 8.3 and 3.3 required him to report potential
judicial misconduct to an appropriate authority. He renews this argument in his
second objection and urges us to adopt the judgmental-immunity doctrine to
protect him from the consequences of what he claims was required reporting of
judicial misconduct. And in his second motion to dismiss, Proctor argued that
because he had consulted with an assistant disciplinary counsel prior to making
the allegations against Judge Whitney, relator’s continued prosecution of the
complaint violated his right to due process. Proctor renews this argument in his
third objection.
{¶ 13} At his disciplinary hearing and again at oral argument, Proctor
denied having any intent to disavow the stipulations he entered in this case.
Indeed, during oral argument, Proctor’s counsel admitted that the single issue
before this court is the board’s rejection of the stipulated sanction of a six-month
stayed suspension in favor of a six-month actual suspension. Therefore, we
decline to address Proctor’s first three objections to the board’s report, which
would require this court to disregard Proctor’s stipulations of fact and misconduct
and consider whether he had a reasonable belief that the statements in his
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supplemental request regarding his motion for findings of fact and conclusions of
law and in his appellate brief were true. Furthermore, we adopt the board’s
findings of fact and misconduct, which are based upon the parties’ stipulations
and are amply supported by the record.
{¶ 14} In his fourth objection, Proctor argues that his conduct is less
egregious than that of Gardner and that this court should therefore reject the
board’s recommendation of an actual suspension from the practice of law in favor
of the parties’ stipulated sanction of a six-month stayed suspension.
{¶ 15} In Gardner, we recognized that ethical rules prohibiting false
statements impugning the integrity of judges are necessary “ ‘to preserve public
confidence in the fairness and impartiality of our system of justice.’ ” 99 Ohio
St.3d 416, 2003-Ohio-4048, 793 N.E.2d 425, ¶ 29, quoting Standing Commt. on
Discipline of the United States Dist. Court for the Cent. Dist. of California v.
Yagman, 55 F.3d 1430, 1437 (9th Cir.1995). To further that compelling interest,
we adopted an objective standard to determine whether a lawyer’s statement
about a judicial officer was made with knowledge of or in reckless disregard of its
falsity, and we therefore held that “an attorney may be sanctioned for making
accusations of judicial impropriety that a reasonable attorney would believe are
false.” Gardner at ¶ 31.
{¶ 16} Gardner’s misconduct consisted of a diatribe in a motion for
reconsideration filed with the appellate court that had affirmed his client’s
criminal conviction. Gardner at ¶ 3. In that document, Gardner made reckless
and unfounded accusations that the court was biased and corrupt. Id. at ¶ 33-34.
Gardner had no record of prior discipline, apologized for the manner in which he
had expressed his frustration with the appellate court’s ruling, and acknowledged
that his motion was neither appropriate nor professional. Id. at ¶ 11.
{¶ 17} The parties recommended that Gardner be publicly reprimanded for
his misconduct, and the panel adopted that recommendation. Id. at ¶ 12. The
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board, however, citing Gardner’s “ ‘outrageous behavior toward a tribunal,’ ”
recommended a six-month stayed suspension. Id. But stating that “[u]nfounded
attacks against the integrity of the judiciary require an actual suspension from the
practice of law,” we imposed a six-month actual suspension from the practice of
law. Id. at ¶ 36.
{¶ 18} We have similarly held that attorneys who engage in a course of
conduct involving dishonesty, fraud, deceit, or misrepresentation will be actually
suspended from the practice of law for an appropriate period of time.
Disciplinary Counsel v. Fowerbaugh, 74 Ohio St.3d 187, 191, 658 N.E.2d 237(1995). But we have treated our pronouncement in Fowerbaugh as a presumptive
sanction and have not hesitated to impose lesser sanctions in the presence of
significant mitigating evidence. See, e.g., Disciplinary Counsel v. Carroll, 106
Ohio St.3d 84, 2005-Ohio-3805, 831 N.E.2d 1000, ¶ 13; Dayton Bar Assn. v.
Kinney, 89 Ohio St.3d 77, 728 N.E.2d 1052 (2000). And despite our
proclamation that “[u]nfounded attacks against the integrity of the judiciary
require an actual suspension from the practice of law,” Gardner, 99 Ohio St.3d
416, 2003-Ohio-4048, 793 N.E.2d 425, at ¶ 36, we have previously imposed
lesser sanctions for attorneys who have knowingly or recklessly impugned the
integrity of the judiciary when sufficient mitigating factors are present. See, e.g.,
Akron Bar Assn. v. DiCato, 130 Ohio St.3d 394, 2011-Ohio-5796, 958 N.E.2d
938 (six-month stayed suspension imposed on an attorney who made a false
statement impugning the integrity of a judge during a telephone conversation with
the judge’s bailiff, when mitigating factors included the absence of a prior
disciplinary record and cooperation with the disciplinary investigation, as well as
the attorney’s apology and guilty plea to related contempt charges).
{¶ 19} In this case, however, the board found that the two aggravating
factors—Proctor’s making recklessly false statements impugning the integrity of a
judicial officer in at least two court filings and his refusal to acknowledge the
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wrongful nature of his conduct, as demonstrated by his repeated efforts to
undermine his own stipulations with claims that he had reason to believe that the
allegations were true—outweighed the mitigating factors. We agree and find that
Proctor’s conduct is comparable to that in Gardner and more serious than that in
DiCato. Therefore, we adopt the board’s recommended sanction of a six-month
suspension from the practice of law.
{¶ 20} Accordingly, Philip Lucas Proctor is suspended from the practice
of law in Ohio for six months. Costs are taxed to Proctor.
Judgment accordingly.
O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, CUPP, and
MCGEE BROWN, JJ., concur.
LUNDBERG STRATTON, J., dissents and would impose a 12-month stayed
suspension.
__________________
Jonathan E. Coughlan, Disciplinary Counsel, and Stacy Solochek
Beckman, Assistant Disciplinary Counsel, for relator.
James S. Adray, for respondent.
______________________
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