Disciplinary Counsel v. Porzio (Slip Opinion) , 2020 Ohio 1569 ( 2020 )

[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.]
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
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the opinion is published.
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—Jud.Cond.R. 1.2, 2.9(A), and 2.11(A)—The
Code of Judicial Conduct applies to magistrates as well as judges—Six-
month suspension, fully stayed on conditions.
(No. 2019-1746—Submitted January 29, 2020—Decided April 23, 2020.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the
Supreme Court, No. 2019-016.
_______________________
Per Curiam.
{¶ 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, disciplinary counsel, charged Porzio with
engaging in an improper ex parte communication and violating other rules of the
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Code of Judicial Conduct while she served as a magistrate for the Lake County
Court of Common Pleas. Porzio stipulated to the charges against her, and the
parties jointly recommended that she receive a public reprimand for her
misconduct. After a hearing before a three-member panel of the Board of
Professional Conduct, the board issued a report finding that Porzio engaged in the
stipulated misconduct and recommending that we impose a conditionally stayed
six-month suspension. Neither party has objected to the board’s report.
{¶ 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 parties 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. She 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 about 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
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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 point, 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 admitted 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 Porzio’s conduct violated three rules:
Jud.Cond.R. 1.2, 2.9(A), and 2.11(A).
{¶ 9} Jud.Cond.R. 1.2 provides that “[a] judge shall act at all times in a
manner that promotes public confidence in the independence, integrity, and
impartiality of the judiciary, and shall avoid impropriety and the appearance of
impropriety.” The board found that Porzio’s inappropriate comments and lack of
proper judicial demeanor failed to promote public confidence in the independence,
integrity, and impartiality of the judiciary and instead gave the appearance that she
was biased against Fish. The appearance of impropriety created by her comments,
the board concluded, “is enough, standing alone, to support a finding of a violation
of Jud.Cond.R. 1.2.”
{¶ 10} Jud.Cond.R. 2.9(A) prohibits a judge from initiating, receiving,
permitting, or considering an ex parte communication, which is defined as “a
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communication, concerning a pending or impending matter, between counsel or an
unrepresented party and the court when opposing counsel or an unrepresented party
is not present or any other communication made to the judge outside the presence
of the parties or their lawyers.” Jud.Cond.R. Terminology. The board found that
because Porzio’s communication with Gerino—after Fish had been excused from
the courtroom—went beyond mere friendly conversation and veered into Porzio’s
views of the case and legal concepts, she violated Jud.Cond.R. 2.9(A).
{¶ 11} Jud.Cond.R. 2.11(A) requires a judge to “disqualify himself or
herself in any proceeding in which the judge’s impartiality might reasonably be
questioned.” During Porzio’s ex parte communication with Gerino, she discussed
the evidence, her personal views on Fish’s integrity, and how she intended to rule.
Based on that conduct, the board found that her “impartiality most certainly could
be reasonably questioned.” But rather than remove herself from the case, Porzio
continued to exercise her judicial authority and issued her decision. At her
disciplinary hearing, she admitted that in preparing her decision, she had listened
to the audio recording of her ex parte communication and that she should have
recused herself before drafting the decision. The board concluded that Porzio
therefore violated Jud.Cond.R. 2.11(A).
{¶ 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 Gov.Bar R. V(13), and the sanctions
imposed in similar cases.
{¶ 14} The board did not find the existence of any of the aggravating factors
listed in Gov.Bar R. V(13)(B). The board stressed, however, that Porzio’s casual
comments on the parties’ religions and her other offhand comments demonstrate
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that she needs to better understand how her words might suggest actual or implicit
bias—both in her position as a magistrate and as a practicing attorney.
{¶ 15} In mitigation, the board found that Porzio has a clean 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 Gov.Bar R. V(13)(C)(1), (2), (4), and (6). The board
also cited Porzio’s significant character evidence, including testimony from a
former common pleas court judge and various character letters demonstrating her
competence, professionalism, and integrity as a magistrate. See Gov.Bar R.
V(13)(C)(5). Indeed, Porzio had served for about 30 years as a magistrate in three
different courts, held officer positions in the Ohio Association of Magistrates, and
taught numerous continuing-legal-education (“CLE”) seminars for other
magistrates. As the board noted, Porzio’s mitigating evidence suggests that her
conduct in this case was an aberration from her normal behavior. Finally, the board
noted that Porzio expressed remorse at her disciplinary hearing by testifying that
she was “horrified” at how she had acted and acknowledging that her conduct had
been “wrong all the way around.” The board also noted, however, that not all the
hearing-panel members were convinced of the sincerity of Porzio’s testimony.
{¶ 16} To support their recommended sanction of a public reprimand, the
parties cited several judicial-discipline 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 becoming 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
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that resulted in the prosecutor’s preparation of a sentencing order 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 factor 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 evidencing 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 actions 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 therefore
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, conducting that person’s probation
review without the presence of his counsel or the prosecutor, interceding in an
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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 Gov.Bar R. X and (2) she commit no further
misconduct. If Porzio fails to comply with either condition, the stay will be lifted
and she will serve the entire six-month suspension. Costs are taxed to Porzio.
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.
_________________
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