Disciplinary Counsel v. Frost , 122 Ohio St. 3d 219 ( 2009 )

[Cite as Disciplinary Counsel v. Frost, 122 Ohio St.3d 219, 2009-Ohio-2870.]
DISCIPLINARY COUNSEL v. FROST.
[Cite as Disciplinary Counsel v. Frost, 122 Ohio St.3d 219, 2009-Ohio-2870.]
Attorney misconduct, including engaging in conduct involving dishonesty, fraud,
deceit, or misrepresentation, engaging in conduct prejudicial to the
administration of justice, and knowingly making false accusations against
a judge — Indefinite suspension.
(No. 2009-0069 — Submitted March 25, 2009 — Decided June 24, 2009.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 07-079.
__________________
Per Curiam.
{¶ 1} Respondent, Merrie Maurine Frost of Cleveland Heights, Ohio,
Attorney Registration No. 0059642, was admitted to the practice of law in Ohio in
1992.
{¶ 2} The Board of Commissioners on Grievances and Discipline
recommends that we indefinitely suspend respondent’s license to practice, based
on findings that she filed in court false accusations of bias and corruption against
judges and a county prosecutor and also persisted in pursuing a baseless
defamation suit. We accept the board’s findings and agree that the acts
constituted professional misconduct as found by the board and that an indefinite
suspension of respondent’s license is appropriate. Moreover, to safeguard the
public, we order as one condition of reinstatement that respondent provide
medical proof that she is mentally fit to return to the competent, professional, and
ethical practice of law.
{¶ 3} Respondent, Disciplinary Counsel, charged respondent with three
counts of professional misconduct, alleging multiple violations of the Disciplinary
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Rules of the former Code of Professional Responsibility and Gov.Bar R. IV(2)
(requiring lawyers to maintain a respectful attitude toward the courts). A panel of
board members heard the case, made findings of fact and conclusions of law, and
recommended the indefinite suspension of respondent’s license. The board
adopted the panel’s findings of misconduct and recommendation.
{¶ 4} Respondent has objected to the board’s report, arguing that an
indefinite suspension from practice is too harsh in view of her heretofore
unblemished professional record. And rather than attack the board’s findings of
misconduct as unfounded, she asserts that charges she made alleging corruption
and bias are constitutionally protected and impervious to the disciplinary process.
We reject both arguments.
Misconduct
Count One
{¶ 5} Respondent engaged in professional misconduct first by falsely
accusing several Cuyahoga County Common Pleas Court judges and the county
prosecutor of corruption and bias in the execution of their official duties. Because
respondent had no reasonable basis for leveling these charges, the board found her
in violation of the following ethical standards: DR 1-102(A)(4) (prohibiting
conduct involving dishonesty, fraud, deceit, or misrepresentation), 1-102(A)(5)
(prohibiting conduct that is prejudicial to the administration of justice), 1-
102(A)(6) (prohibiting conduct that adversely reflects on the lawyer’s fitness to
practice law), 7-102(A)(1) (prohibiting a lawyer from taking action on behalf of a
client that the lawyer knows or should know would serve merely to harass or
maliciously injure another), 7-106(C)(1) (prohibiting a lawyer appearing in a
professional capacity before a tribunal from making an assertion that the lawyer
“has no reasonable basis to believe is relevant to the case or that will not be
supported by admissible evidence”), and 8-102(B) (prohibiting a lawyer from
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knowingly making false accusations against a judge) and Gov.Bar R. IV(2). We
accept these findings of misconduct.
{¶ 6} In 2003, respondent filed race-discrimination and related claims
against the Cuyahoga County Board of Commissioners, among other defendants,
on behalf of Jennifer Simmons-Means and Norman Rice as employees of the
Cuyahoga County Department of Justice Affairs (the “Simmons-Means” and
“Rice” cases). The Simmons-Means case was assigned to Judge Timothy
McCormick; Judge William J. Coyne presided in the Rice case.
{¶ 7} In November 2004, Judge Coyne granted summary judgment
against Rice, and approximately one year later, the Eighth District Court of
Appeals affirmed. In December 2004, defendants in the Simmons-Means case
moved for summary judgment, and in October 2005, Judge McCormick granted
that motion. Approximately one year later, Judge McCormick’s decision was also
affirmed.
{¶ 8} Respondent did not initially file a response to the motions for
summary judgment in the Simmons-Means case. On January 12, 2005, she
instead filed an affidavit of disqualification with this court, seeking to remove
Judge McCormick, who had by that time presided in the case for nearly two years.
Relator aptly characterized the affidavit as follows: “[A] rambling narration that is
for the most part, entirely irrelevant to Judge McCormick or Simmons-Means.
Respondent used the affidavit solely as a platform to broadcast her false
allegations against * * * judges and public officials.”
{¶ 9} Respondent claimed to be “competent to testify to the facts” and to
have “first hand knowledge of the facts alleged” in the affidavit of
disqualification. From respondent’s testimony at the panel hearing, however, it is
clear that she had nothing beyond conjecture, rumor, and innuendo to support her
charges. Respondent’s affidavit alleged the following:
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{¶ 10} 1. The Cuyahoga County prosecutor had information that
government employees were engaging in race discrimination and illegal conduct,
including crimes of forgery, fraud, and falsification of public documents, yet
failed to investigate.
{¶ 11} 2. Judge McCormick denied Simmons-Means due process with his
“outright blatant special treatment for the defendants.”
{¶ 12} 3. Judge Coyne, in the Rice case, had an “an ex parte
communication with defense counsel regarding a discovery dispute” and then
dismissed the action for political reasons and refused to reduce his reasoning to
writing. (At the panel hearing, defense counsel in the Rice case specifically
denied any ex parte communication, and respondent conceded that she had never
requested findings of fact and conclusions of law from the judge.)
{¶ 13} 4. Judge McCormick showed bias for the defense in the Simmons-
Means case by granting a six-month stay of proceedings. Respondent claimed
that “political connections” motivated the judge and that his ruling “conveniently
slowed down the case so that nothing could be decided until after the November
election.” (Evidence presented at the hearing, however, established that Judge
McCormick had granted the stay to allow one defendant to care for her terminally
ill spouse.)
{¶ 14} 5. Judge McCormick was “biased and intend[ed] to rule against”
Simmons-Means “regardless of what evidence [she] can provide to support her
case.” (Evidence presented at hearing substantiated that respondent leveled this
charge because Judge McCormick had asked her to try to obtain the discovery she
needed from county commissioners first through written requests and then decide
whether she still needed to conduct depositions of the commissioners.)
{¶ 15} 6. In an unrelated race-discrimination case, Judge Mary Jane Boyle
delayed in ruling on respondent’s motion for attorney fees because she was
“afraid” that her ruling would cost a certain “politically connected person”
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thousands of dollars. (Though respondent purportedly received this information
from a court employee, she presented no witness or other evidence at the panel
hearing to corroborate her claim.)
{¶ 16} “A judge is presumed to follow the law and not to be biased, and
the appearance of bias or prejudice must be compelling to overcome these
presumptions.” In re Disqualification of George, 100 Ohio St.3d 1241, 2003-
Ohio-5489, 798 N.E.2d 23, ¶ 5. Respondent failed to carry this burden, and on
January 28, 2005, her request for Judge McCormick’s disqualification was
denied.
{¶ 17} Based on the foregoing, we find the requisite clear and convincing
proof that respondent had no justification for accusing Judges McCormick,
Coyne, and Boyle and the county prosecutor of bias and corruption.
Count Two
{¶ 18} Respondent also engaged in professional misconduct by repeatedly
leveling unfounded accusations of racial bias and other impropriety against a
federal district court judge. Because respondent had no reasonable basis for these
charges, the board found that she had breached numerous ethical standards: DR 1-
102(A)(4), 1-102(A)(5), 1-102(A)(6), 7-102(A)(1), 7-106(C)(1), and 8-102(B)
and Gov.Bar R. IV(2). We accept these findings of misconduct.
{¶ 19} Respondent leveled her accusations against the federal judge after
he granted summary judgment against her clients (14 African-Americans) in a
race-discrimination case against administrators and supervisors employed by the
Cuyahoga County Juvenile Court. She had filed the discrimination case in the
United States District Court for the Northern District of Ohio, and in early 2003,
the case came before Judge John R. Adams. In January 2005, after granting
summary judgment against 11 plaintiffs, Judge Adams held a status conference
and encouraged the parties to discuss settlement, but no settlement could be
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reached. In March 2005, Judge Adams granted summary judgment against the
remaining plaintiffs.
{¶ 20} Respondent then filed a series of grievances against Judge Adams
in 2005 with the chief judge of the United States Court of Appeals for the Sixth
Circuit, all of which were dismissed for lack of merit. In the first two, she
asserted that Judge Adams’s adverse rulings and remarks during the status
conference showed racial bias and favoritism. In the third grievance, she claimed
that the judge had obtained nomination to his judicial seat through improper
financial contributions to prominent politicians. Testifying before the hearing
panel, Judge Adams firmly denied any prejudice or other impropriety. He also
noted that all of his rulings on the motions for summary judgment had been
affirmed on appeal.
{¶ 21} Respondent also filed a motion to disqualify and an affidavit of
prejudice in 2005, asking Judge Adams to step down. Her motion again leveled
unfounded charges that the judge had made racist remarks. Judge Adams
declined to recuse himself, insisting that “[t]he Court did not and would not make
such statements.”
{¶ 22} After the denial of her motion to disqualify, respondent sought a
writ of mandamus in the Sixth Circuit, seeking an order of removal. In July 2005,
the court of appeals denied the motion.
{¶ 23} In 2006, respondent moved to vacate the order denying the motion
to disqualify. In support, she falsely claimed that Judge Adams knew he was
under investigation by the FBI for racist conduct and criminal activity and that an
agent had “sworn out a complaint” against him based on her charges. Before the
hearing panel, the agent who had allegedly filed the complaint refuted
respondent’s claim, explaining that he had merely received and forwarded the
respondent’s accusations for investigative review. Another agent later determined
that the information did not warrant any investigation.
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{¶ 24} Respondent never succeeded in obtaining Judge Adams’s removal.
Based on the foregoing, we find the requisite clear and convincing proof showing
that respondent had no justification for accusing Judge Adams of racial bias or
other impropriety.
Count Three
{¶ 25} Respondent also engaged in professional misconduct by filing a
baseless defamation suit against two lawyers who were her opposing counsel in a
sexual-harassment action. Because respondent had no reasonable basis for the
suit, the board found her in violation of DR 1-102(A)(4), 1-102(A)(5), 1-
102(A)(6), 7-102(A)(1), 7-102(A)(2) (prohibiting a lawyer from knowingly
advancing a claim or defense that is unwarranted under existing law, with an
exception not relevant here), and 7-106(C)(1). We accept these findings of
misconduct.
{¶ 26} Respondent filed the sexual-harassment case in August 2004
against her client’s employer and five of its employees in the Lake County
Common Pleas Court. The common pleas court granted the employer’s motion
for a protective order, forbidding the parties or their counsel to comment publicly.
{¶ 27} In mid-August 2005, respondent sent a threatening e-mail to two
defense counsel in the case, accusing them of commenting unfavorably about her
client in public. She warned that a witness had overheard one or both of them
talking about the case and that their statements possibly violated the protective
order. When the two lawyers replied that they did not know what respondent was
talking about, she sent a second threatening e-mail.
{¶ 28} By the end of August, respondent had filed a defamation suit in the
Lake County Common Pleas Court against the two attorneys, claiming that they
had made “numerous slanderous remarks about plaintiff including, but not limited
to, ‘plaintiff was crazy,’ ‘plaintiff was out of her head,’ ‘plaintiff was a liar.’ ”
Upon learning of the lawsuit, the witness who had allegedly overheard these
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remarks called respondent and insisted that she dismiss the case immediately. He
told her that she had completely misconstrued what were merely casual comments
regarding rumors he had heard about how the defense intended to discredit her
client. Respondent did not dismiss the case.
{¶ 29} The witness appeared in November 2005 pursuant to subpoena at a
hearing in the underlying sexual-harassment case. He testified that he did not
know the defense attorneys, that he had not overheard either of them talking about
the case, and that he had never told respondent that he had. The witness said he
had for these reasons strongly urged respondent not to pursue the defamation
action, but she had refused to listen.
{¶ 30} After this hearing, respondent finally did dismiss the defamation
action. The defendants moved for sanctions, and the common pleas court agreed
that respondent’s suit was frivolous. The court ordered respondent to pay the two
defendants $500 each and to pay their counsel $3,000. The imposition of these
sanctions was upheld on appeal.
{¶ 31} Based on the foregoing, we find the requisite clear and convincing
proof that respondent’s defamation action against opposing counsel was
completely frivolous.
Sanction
Respondent’s False Statements Are Subject to Disciplinary Sanction
{¶ 32} Respondent offers no legal precedent to support her argument that
her statements about the judges and county prosecutor are constitutionally
protected speech. As relator observes, however, Disciplinary Counsel v.
Gardner, 99 Ohio St.3d 416, 2003-Ohio-4048, 793 N.E.2d 425, settled the
question. We summarized Gardner in Shimko v. Lobe, 103 Ohio St.3d 59, 2004-
Ohio-4202, 813 N.E.2d 669, ¶ 58:
{¶ 33} “In Disciplinary Counsel v. Gardner, * * * this court held that the
Free Speech Clause of the Ohio Constitution, Section II [11], Article I, although
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broader than the federal Constitution in protecting certain false statements, does
not forbid the imposition of discipline on an attorney for violating DR 8-102(B)
by falsely accusing an appellate panel of judicial impropriety during a pending
court proceeding. In that case, the court adopted an objective standard to
determine whether a lawyer’s statement about a judicial officer was made with
knowledge or reckless disregard of its falsity, rather than the subjective ‘actual
malice’ standard applicable in defamation cases under New York Times v. Sullivan
(1964), 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686. In so doing, we explained
that DR 8-102(B) is designed ‘to preserve public confidence in the fairness and
impartiality of our system of justice’ and specifically concluded that ‘the state’s
compelling interest in preserving public confidence in the judiciary supports
applying a standard in disciplinary proceedings different from that applicable in
defamation cases.’ (Emphasis added.) Id., 99 Ohio St.3d 416, 2003-Ohio-4048,
793 N.E.2d 425, at ¶ 29 and 31.”
{¶ 34} The standard adopted in Gardner evaluates an attorney’s
statements in terms of “ ‘“what the reasonable attorney, considered in light of all
his professional functions, would do in the same or similar circumstances” * * *
[and] focuses on whether the attorney had a reasonable factual basis for making
the statements, considering their nature and the context in which they were made.’
” Gardner, 99 Ohio St.3d 416, 2003-Ohio-4048, 793 N.E.2d 425, at ¶ 26, quoting
Standing Committee on Discipline v. Yagman (C.A.9, 1995), 55 F.3d 1430, 1437,
quoting United States Dist. Court, E. Dist. of Wash. v. Sandlin (C.A.9, 1993), 12
F.3d 861, 867. Under this standard, attorneys may still “freely exercise free
speech rights and make statements supported by a reasonable factual basis, even if
the attorney turns out to be mistaken.” Id. at ¶ 31. But plainly, Gardner stands
for the proposition that when an attorney levels accusations of judicial
impropriety that a reasonable attorney would consider to be untrue, disciplinary
sanctions are permissible.
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{¶ 35} Respondent’s accusations were baseless. Given the complete lack
of substantiation, no reasonable attorney would accept her charges of bias and
corruption as true. The imposition of disciplinary measures in this case, therefore,
poses no constitutional implications.
An Indefinite Suspension Is Appropriate
{¶ 36} In recommending the indefinite suspension of respondent’s license
to practice, the board weighed the mitigating and aggravating factors listed in
BCGD Proc.Reg. 10(B). The board found only the single mitigating factor on
which respondent urges us to rely – lack of a prior record of professional
discipline. See BCGD Proc.Reg. 10(B)(2)(a). Respondent’s record, however,
does little to offset the aggravating factors that are also present.
{¶ 37} As the board found, respondent committed acts of dishonesty,
engaged in a pattern of misconduct, committed multiple offenses, and has failed
to acknowledge the wrongfulness of her conduct. BCGD Proc.Reg. 10(B)(1)(b),
(c), (d), and (g). Her attacks on the public officials caused considerable harm.
BCGD Proc.Reg. 10(B)(1)(h). False statements impugning the integrity of
members of the judiciary and judicial system erode public confidence. Gardner,
99 Ohio St.3d 416, 2003-Ohio-4048, 793 N.E.2d 425, at ¶ 30.
{¶ 38} Also factoring into our decision is respondent’s failure to inquire
into the truth of alleged racial discrimination and other claims and the cost to her
clients. After an unsuccessful appeal of decisions granting summary judgment,
Judge Adams assessed attorney fees and costs against respondent and her clients,
jointly and severally, a decision that the Sixth Circuit affirmed but remanded for a
new calculation of the amounts owed by each on an individual basis. See Garner
v. Cuyahoga Cty. Juvenile Court (2009), 554 F.3d 624.
{¶ 39} Moreover, respondent seems unable to understand fundamental
evidentiary and procedural rules, a problem manifested by her disjointed efforts to
present her case before the hearing panel. When questioned about the firsthand
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knowledge she claimed to have of the improprieties she had alleged, respondent
referred to having learned the information from “someone else” or by “looking at
documents,” thereby erroneously implying that unreliable hearsay may serve as
competent proof. She argued in closing, “If there is any question as to whether
respondent had a basis for her allegations, you only have to look at the
newspapers.” Respondent has further maintained that in requiring her to set forth
the basis for her claims, the statutory provisions or court rules for obtaining a
judge’s disqualification or recusal required her to level the charges that she did.
{¶ 40} In Gardner, the lawyer attacked court of appeals judges in a
request for reconsideration, objecting to a decision affirming his client’s criminal
conviction. He accused the panel of having a prosecutorial bias, distorting the
truth, being result-driven, and ignoring well-established law. Even at the
disciplinary hearing, the lawyer confirmed his continued belief that the judges had
“skewed and ignored the facts, disregarded honesty and truth, and violated their
oaths to decide cases fairly and impartially.” Id., 99 Ohio St.3d 416, 2003-Ohio-
4048, 793 N.E.2d 425, ¶ 11. Because such unfounded attacks on the judiciary
warranted an actual suspension from practice, we suspended the lawyer’s license
for six months.
{¶ 41} But Gardner leveled his attacks in a single case. He did not, as
respondent has, keep resorting to such improprieties in case after case as a defense
to irrational suspicions of corruption and discrimination in government. We have
seen such misconduct before and have dealt with it severely. For making
numerous false accusations of criminal and unethical activity against public
officials and private citizens, compromising her clients' interests, and
manipulating the legal system to harass and intimidate, we permanently disbarred
the attorney in Disciplinary Counsel v. Baumgartner, 100 Ohio St.3d 41, 2003-
Ohio-4756, 796 N.E.2d 495.
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{¶ 42} Baumgartner made accusations against anyone she perceived as a
detractor. Respondent’s accusations were not as pervasive as Baumgartner’s, but
they were also not as restricted as Gardner’s one-time expression of frustration,
and Gardner later apologized and acknowledged that his accusations had been
unprofessional. The intermediate sanction of indefinite suspension is therefore
appropriate.
{¶ 43} Respondent is indefinitely suspended from the practice of law in
Ohio and, pursuant to Gov.Bar R. V(10)(B), may not petition for reinstatement
until at least two years from the date of our order. Moreover, because of our
concerns that respondent’s misconduct may be a by-product of unaddressed
mental-health issues, we impose a condition of reinstatement in addition to the
requirements of Gov.Bar R. V(10)(B) through (E): any petition for reinstatement
that respondent files must also include proof that to a reasonable degree of
medical certainty, she is mentally fit to return to the competent, professional, and
ethical practice of law.
{¶ 44} Costs are taxed to respondent.
Judgment accordingly.
MOYER, C.J., and PFEIFER, LUNDBERG STRATTON, O’CONNOR,
O’DONNELL, LANZINGER, and CUPP, JJ., concur.
__________________
Jonathan E. Coughlan, Disciplinary Counsel, and Lori J. Brown, First
Assistant Disciplinary Counsel, for relator.
J.K. Roberts Law Group, Ltd., Jacqueline Roberts, and Lawrence J.
Kramer, for respondent.
______________________
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