Disciplinary Counsel v. Hale , 141 Ohio St. 3d 518 ( 2014 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Hale, Slip Opinion No. 2014-Ohio-5053.]
NOTICE
This slip opinion is subject to formal revision before it is published in
an advance sheet of the Ohio Official Reports. Readers are requested
to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
65 South Front Street, Columbus, Ohio 43215, of any typographical or
other formal errors in the opinion, in order that corrections may be
made before the opinion is published.
SLIP OPINION NO. 2014-OHIO-5053
DISCIPLINARY COUNSEL v. HALE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Disciplinary Counsel v. Hale,
Slip Opinion No. 2014-Ohio-5053.]
Attorneys at law—Misconduct—Violations of the Rules of Professional Conduct
and the Judicial Conduct Rules—A judge is required to respect and
comply with the law and act in a manner that promotes public confidence
in the integrity and impartiality of the judiciary—An attorney is prohibited
from engaging in conduct involving dishonesty, fraud, deceit, or
misrepresentation—Six-month suspension.
(No. 2013-1622—Submitted September 23, 2014—Decided November 18, 2014.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 2013-032.
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SUPREME COURT OF OHIO
O’NEILL, J.
{¶ 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
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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 Prof.Cond.R. 8.4(h) (prohibiting a lawyer from engaging in
conduct that adversely reflects on the lawyer’s fitness to practice law) that had
been stipulated by the parties and found by the panel. The board then adopted the
panel’s recommended sanction of a six-month suspension.
{¶ 8} Relator objects to the board’s dismissal of the alleged violation of
Prof.Cond.R. 8.4(h) and to the board’s recommendation that we adopt the parties’
stipulated sanction.
{¶ 9} We adopt the board’s findings of fact and conclusions of law, but
we also find that Hale has violated Prof.Cond.R. 8.4(h). And having carefully
considered Hale’s conduct, including his false testimony at the panel hearing, the
applicable aggravating and mitigating factors, and the sanctions we have imposed
for comparable misconduct, we suspend Hale from the practice of law for six
months.
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.
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{¶ 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
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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 Jud.Cond.R. 1.2 (requiring a
judge to respect and comply with the law and to act at all times in a manner that
promotes public confidence in the integrity and impartiality of the judiciary), 1.3
(prohibiting a judge from abusing the prestige of judicial office to advance the
personal or economic interests of the judge or others), 2.2 (requiring a judge to
uphold and apply the law and to perform all duties of judicial office fairly and
impartially), 2.9 (prohibiting a judge from initiating, receiving, permitting, or
considering ex parte communications) and Prof.Cond.R. 8.4(c) (prohibiting a
lawyer from engaging in conduct involving dishonesty, fraud, deceit, or
misrepresentation), 8.4(d) (prohibiting a lawyer from engaging in conduct that is
prejudicial to the administration of justice), and 8.4(h) (prohibiting a lawyer from
engaging in conduct that adversely reflects on the lawyer’s fitness to practice
law).
{¶ 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 Prof.Cond.R. 8.4(h), having concluded that Hale’s conduct
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was not so egregious as to warrant an additional finding that his conduct
adversely reflected upon his fitness to practice law. See Disciplinary Counsel v.
Bricker, 137 Ohio St. 3d 35, 2013-Ohio-3998, 997 N.E.2d 500, ¶ 21. The board
issued an entry on June 9, 2014, stating that it unanimously dismissed that alleged
violation and directing the secretary of the board to so notify the parties and
entities entitled to notice of the dismissal pursuant to Gov.Bar R. V(6)(G).
{¶ 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) Gov.Bar R. V(6) authorizes the full board to dismiss a complaint but not a
charge or count of a complaint
{¶ 20} Initially, Hale took no position on relator’s objection to the board’s
dismissal of the alleged violation of Prof.Cond.R. 8.4(h), noting that he had
stipulated that his conduct adversely reflected on his fitness to practice law. But
at oral argument, his counsel questioned whether this court has jurisdiction to
consider the alleged violation because the board had issued a separate entry
dismissing it and directed the board secretary to provide notice to the entities
listed in Gov.Bar R. V(6)(G). On rebuttal, relator challenged that assertion,
arguing that Gov.Bar R. V(6)(J) grants the board the authority only to dismiss an
entire complaint.
{¶ 21} Gov.Bar R. V(6)(G) provides that when a unanimous hearing panel
finds that the evidence is insufficient to support a charge or count of misconduct,
“the panel may order that the complaint or count be dismissed” without referring
it to the board or this court. (Emphasis added.) To effectuate such a dismissal,
however, the panel chair must give written notice of the action to the board, the
respondent, all counsel of record, disciplinary counsel, the certified grievance
committee for the local bar association of the county or counties in which the
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respondent resides and maintains his or her office and the county from which the
complaint arose, and the Ohio State Bar Association. Id.
{¶ 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
Gov.Bar R. V(6)(I), without ordering dismissal or providing the notices required
by Gov.Bar R. V(6)(G), we have treated the purported dismissal as a
recommendation that the alleged violation be dismissed and have considered any
objections raised to that recommendation. See, e.g., Disciplinary Counsel v.
Doellman, 127 Ohio St. 3d 411, 2010-Ohio-5990, 940 N.E.2d 928, ¶ 31-33;
Toledo Bar Assn. v. Harvey, __ Ohio St.3d __, 2014-Ohio-3675, __ N.E.3d__,
¶ 10, fn. 1; Cleveland Metro. Bar Assn. v. Lemieux, 139 Ohio St. 3d 320, 2014-
Ohio-2127, 11 N.E.3d 320, ¶ 5, fn. 2; and Akron Bar Assn. v. Binger, 139 Ohio
St.3d 186, 2014-Ohio-2114, 10 N.E.3d 710, ¶ 5, fn. 2.1
1
At the time that these cases were decided, Gov.Bar R. V(6)(G) through (L) governed the
authority of the panel and board and set forth the requisite procedures for the disposal of
disciplinary proceedings from the hearing through the submission of the board’s certified report to
this court. See Gov.Bar R. V(6)(G) through (L), 64 Ohio St.3d XCVIII-XCIX (1992). On May
22, 2012, we adopted amendments to Gov.Bar R. V(6) that changed the letter designations for the
relevant subsections, but left their content unchanged. See Gov.Bar R. V(6)(F) through (K), 132
Ohio St.3d xiv-xv (June 18, 2012 Ohio Official Reports Advance Sheet). Thus, the cites in those
cases do not necessarily correspond to the cites used in this opinion. The content of these
provisions, however, remains the same.
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{¶ 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.
Gov.Bar R. V(6)(K) [64 Ohio St.3d XCVIII].” Id. at ¶ 32. Because the panel had
only recommended that certain violations be dismissed, and neither the panel nor
the board had provided the requisite notices to effectuate the dismissal (which are
now set forth in Gov.Bar R. V(6)(J)), we considered relator’s objections to the
recommended dismissals. Doellman at ¶ 33.
{¶ 24} We now note that Gov.Bar R. V(6)(J), which governs review of a
disciplinary matter by the full board, provides: “After the final review, the Board
may dismiss the complaint or find that the respondent is guilty of misconduct.”
(Emphasis added.) Thus, while a unanimous hearing panel may dismiss an entire
complaint or individual counts of the complaint based on the insufficiency of the
evidence, the plain language of Gov.Bar R. V(6)(J) permits the full board only to
effectuate the dismissal of the entire complaint. Id. Consequently, we find that
the board’s June 9, 2014 entry does not insulate the board’s decision from further
review by this court in the same manner that a unanimous dismissal by a hearing
panel would. Although we may defer to such an action by the board in some
circumstances, we cannot do so when a party has timely objected to it. Therefore,
we address relator’s objection to the board’s dismissal of Prof.Cond.R. 8.4(h).
{¶ 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 Prof.Cond.R. 8.4(h), there must be clear and convincing
evidence either that the lawyer has engaged in misconduct that, while not
specifically prohibited by the rules, nonetheless adversely reflects on the lawyer’s
fitness to practice law or that the conduct giving rise to a specific rule violation is
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so egregious as to warrant an additional finding that it adversely reflects on the
lawyer’s fitness to practice law.
{¶ 26} Here, relator contends that Hale’s conduct warrants a finding that
he violated Prof.Cond.R. 8.4(h) because, while Hale was enmeshed in a civil
lawsuit, he set out to dispose of his personal attorney’s speeding ticket without the
prosecutor’s involvement. Not only did he engage in an ex parte communication
with the Ohio State Highway Patrol’s liaison officer, who reportedly consented to
a reduction of Quinn’s offense to a no-point speed violation, he went one step
further and unilaterally dismissed the ticket with a journal entry that falsely stated
that the dismissal was at the prosecutor’s request. Once the media discovered the
dismissal, Hale created a second false entry to conceal his misdeeds and engaged
in additional ex parte communications seeking the defendant’s and the
prosecutor’s cooperation in vacating his dismissal entry. Then, when the
prosecutor refused to sign the proposed entry, Hale vacated the falsified dismissal
entry, set the matter for hearing, and recused himself from the case. Relator
suggests that, but for a reporter’s curiosity, Hale’s conduct likely would have
gone undetected. Moreover, relator argues that by Hale’s own admission, his
conduct was sufficiently egregious to warrant a finding that it adversely reflected
on his fitness to practice law.
{¶ 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 Prof.Cond.R. 8.4(h), we sustain relator’s
objection. Having reviewed the entire record in this case, we adopt the board’s
findings that Hale’s conduct violated Jud.Cond.R. 1.2, 1.3, 2.2, and 2.9 and
Prof.Cond.R. 8.4(c) and 8.4(d), and we also find that his conduct violated
Prof.Cond.R. 8.4(h).
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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 about his practice of law in the months following his resignation from
the bench. See BCGD Proc.Reg. 10(B)(1)(f).
{¶ 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.
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{¶ 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 for 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
Jud.Cond.R. 1.2 and 2.2, among other rules. See Disciplinary Counsel v. Elum,
133 Ohio St. 3d 500, 2012-Ohio-4700, 979 N.E.2d 289 (imposing a six-month
stayed suspension for a judge who berated a probationer during a “probation
review” at which neither the probationer’s attorney nor the prosecutor was present
and also injected himself into an internal police-department investigation);
Disciplinary Counsel v. McCormack, 133 Ohio St. 3d 192, 2012-Ohio-4309, 977
N.E.2d 598 (imposing a one-year stayed suspension for a magistrate who
conducted himself in an impatient, undignified, and discourteous manner over a
one and a half year period in a single postdecree domestic-relations case and left
the record in such a poor state that the presiding judge had to declare a mistrial).
{¶ 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 for a judge who violated multiple canons of the former Code of Judicial
Conduct by (1) failing to either maintain or provide a complete record in three
separate proceedings in his court, (2) waiting almost three months to comply with
an appellate court remand ordering him to vacate an appellant’s conviction for
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operating a vehicle under the influence of alcohol, and (3) engaging in ex parte
communications with a prosecutor regarding the judge’s opposition to an assistant
prosecutor’s plea agreement that reduced a pending third-degree felony to a
misdemeanor.
{¶ 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 for
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 for 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 Engle.
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’
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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 that this court would not impose a greater sanction for his admitted
misconduct based on the false impression that he had already imposed an
additional six-month suspension from the practice of law on himself.
{¶ 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.
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{¶ 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.
_________________________
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