Columbus Bar Assn. v. Bahan (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Columbus Bar Assn. v. Bahan, Slip Opinion No. 2022-Ohio-1210.]
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. 2022-OHIO-1210COLUMBUS BAR ASSOCIATION v. BAHAN.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Columbus Bar Assn. v. Bahan, Slip Opinion No.
2022-Ohio-1210.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct—
Violation of the Rules for the Government of the Bar—Conditionally stayed
six-month suspension.
(No. 2021-0224—Submitted June 15, 2021—Decided April 14, 2022.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2019-065.
__________________
O’CONNOR, C.J.
{¶ 1} Respondent, Natalie J. Bahan, of West Mansfield, Ohio, Attorney
Registration No. 0079304, was admitted to the practice of law in Ohio in 2005. On
February 12, 2020, we publicly reprimanded her for violating Prof.Cond.R. 7.3(a)
(a lawyer shall not, by in-person, live-telephone, or real-time electronic contact,
solicit professional employment when a significant motive for the lawyer’s doing
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so is the lawyer’s pecuniary gain). Columbus Bar Assn. v. Bahan, 159 Ohio St.3d
479, 2020-Ohio-434, 152 N.E.3d 189 (“Bahan I”).
{¶ 2} In a four-count complaint filed in December 2019, relator, Columbus
Bar Association, charged Bahan with four counts of professional misconduct
arising from (1) her loud, profane, and alcohol-fueled outburst that she had directed
at a former judge during a presentation at the 2018 Logan County Bar Association
holiday event (Count One), (2) seven other incidents related to her alleged alcohol
use (Count Two), (3) failing to diligently represent a client (Count Three), and
(4) failing to cooperate in a disciplinary investigation and allowing her attorney
registration to lapse (Count Four).
{¶ 3} A three-member panel of the Board of Professional Conduct
conducted a hearing and heard testimony from Bahan and 14 other witnesses. At
the conclusion of the evidence, relator withdrew Count Three. After the hearing,
the panel unanimously accepted that withdrawal and also dismissed the charges
alleged in Count Four.
{¶ 4} The panel issued a report finding that Bahan’s alcohol-related conduct
violated two rules governing the ethical conduct of lawyers, unanimously dismissed
two alleged charges (one from Count One and one from Count Two), alleging
violations 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), and recommended
that we impose a conditionally stayed, six-month suspension for Bahan’s
misconduct. The board adopted the panel’s findings of fact, conclusions of law,
and recommended sanction.
{¶ 5} Bahan raises five objections to the board’s findings and recommended
sanction. Her primary argument is that her conduct at the bar association’s holiday
event is constitutionally protected speech that may not be sanctioned under Gov.Bar
R. IV(2).
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{¶ 6} With one exception, we overrule Bahan’s objections and adopt the
board’s findings of misconduct. We also adopt the board’s recommendation that
Bahan be suspended for six months with the entire suspension stayed on the
condition that she engage in no further misconduct—with the additional condition
that she submit to a substance-use assessment conducted by the Ohio Lawyers
Assistance Program (“OLAP”) and comply with all recommendations arising from
that assessment.
Bahan’s Alcohol-Related Misconduct
Count One: Failure to maintain a respectful attitude toward the courts
{¶ 7} Bahan and her husband attended the annual Logan County Bar
Association holiday event on December 8, 2018. During the event, the bar
association presented a “mock award” to William Goslee, who at that time was a
judge on the Logan County Court of Common Pleas. Bahan, who had consumed
alcohol at the event and appeared to be intoxicated, loudly and rudely interrupted
the presentation of the award and called Judge Goslee a “piece of shit,” an
“asshole,” and a “motherfucker.”
{¶ 8} The board found that Bahan was displeased with Judge Goslee
because he was involved with filing the grievance that had resulted in relator’s
decision to file the disciplinary complaint against her in Bahan I, 159 Ohio St.3d
479, 2020-Ohio-434, 152 N.E.3d 189. At the time of the bar event, Bahan I was
pending before the board, and the hearing was scheduled for two days after the bar
event.
{¶ 9} The board found that Bahan’s “loud, profane, and drunken conduct,”
which was directed at Judge Goslee, violated Gov.Bar R. IV(2) (requiring a lawyer
to maintain a respectful attitude toward the courts).
Count Two: Conduct prejudicial to the administration of justice
{¶ 10} In its complaint, relator alleged that over a nine-year period, Bahan
had engaged in seven additional incidents of improper conduct while under the
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influence of alcohol and that her conduct violated Prof.Cond.R. 8.4(d) (prohibiting
a lawyer from engaging in conduct that is prejudicial to the administration of
justice). The board found that Bahan’s conduct in three of those incidents violated
Prof.Cond.R. 8.4(d).
{¶ 11} In the first incident, while attending a charity benefit with her
husband in May 2019, Bahan called the Logan County Sheriff’s Office to report
that “William Branan” had stolen her vehicle. Approximately ten minutes into that
call, a male got on the phone and informed the dispatcher that “William Branan”
was Bahan’s husband, that Bahan was mad at him, and that there was no car theft
in progress.
{¶ 12} During Bahan’s disciplinary hearing, Deputy Miriam Reames
testified that she responded to Bahan’s call. Reames was unable to locate Bahan at
the charity benefit, so she went to Bahan’s home along with another deputy. There,
Bahan told Reames that she and her husband had had a verbal disagreement, that
he had gone outside, and that she thought he had left her at the party. At some point
after Bahan called the sheriff’s office, Bahan’s husband took her home. Reames
concluded that Bahan was intoxicated because her eyes were glassy and bloodshot
and there was an odor of alcohol coming from her person and breath.
{¶ 13} The second incident involved a phone call that Bahan made to the
sheriff’s office in February 2017 to report that her teenaged son had stolen her iPad.
While Bahan was speaking to a sheriff’s deputy, her husband called 9-1-1 to report
that she was “heavily intoxicated and causing problems.” Sheriff’s deputies arrived
at Bahan’s residence and learned that her son had left the home with the iPad. The
deputies noticed that Bahan was loud and unsteady on her feet. She was also
slurring her speech and had bloodshot and glassy eyes and a strong odor of alcohol
on her breath. They concluded that she was intoxicated. Bahan yelled profanities
at the deputies as they helped her husband leave the home. The deputies
admonished her to calm down and repeatedly told her to remain in her home.
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{¶ 14} No charges were ever brought against Bahan’s son, but Bahan was
cited for disorderly conduct—though that charge was later dismissed. The board
found that Bahan engaged in conduct prejudicial to the administration of justice
and that she abused the legal system by reporting these two trivial incidents to law-
enforcement authorities.
{¶ 15} The third incident occurred while Bahan was serving as a guardian
ad litem (“GAL”) in 2010. Bahan had attempted to make a surprise visit to the
home of her ward’s mother, but the mother was not at home. Bahan and her
husband went to eat dinner at a nearby restaurant, where she drank one glass of
wine with her meal before returning to the mother’s home to complete the visit.
The board found that by drinking alcohol before a home visit while serving as a
GAL, Bahan engaged in conduct that was prejudicial to the administration of
justice.
Bahan’s Objections to the Board’s Findings
{¶ 16} Bahan raises four objections to the board’s findings of fact,
misconduct, and evidentiary rulings. For the following reasons, we overrule all but
her third objection.
Gov.Bar R. IV(2) is constitutional as applied to Bahan’s conduct in this case
{¶ 17} In her first objection, Bahan contends that her conduct at the Logan
County Bar Association event may not support a finding of a violation of Gov.Bar
R. IV(2), because that conduct consisted of political speech that is protected under
the First Amendment to the United States Constitution and Article I, Section 11 of
the Ohio Constitution, and was not directed “toward the courts.” Specifically,
Bahan contends that her speech at the event was political in nature because she
intended to express her disapproval of Judge Goslee’s courtroom conduct that
purportedly led the bar association to present him with a mock award that evening.
Relator, in contrast, argues that this matter is not about the freedom of speech, but
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rather “the uncontrolled, self-indulgent, drunken behavior of a member of the bar.”
For the following reasons, we find that Bahan’s objection is without merit.
Factual background
{¶ 18} At its 2018 holiday event, at which approximately 50 to 70 people
attended, the Logan County Bar Association offered bar members and their spouses
an opportunity to socialize over dinner, drinks (including alcohol), and some
dancing. The event also included an awards ceremony.
{¶ 19} According to Bahan and other witnesses, she was not intoxicated
when she arrived at the event, but she began to drink wine soon thereafter. Bahan
testified that she had about three glasses of wine, because that is her “public limit.”
She did not believe that she was intoxicated, but she also did not believe that it was
a good idea for her to drive herself home. Judge Charles Chamberlain testified that
Bahan “was a little unsteady on her feet.” Although her conduct suggests
otherwise, Bahan denied that alcohol played any role in her conduct at the event.
{¶ 20} Witnesses testified that they did not notice anything unusual about
Bahan’s behavior until after dinner. Natasha Kennedy, a magistrate with the Logan
County Family Court, testified that as the evening progressed, she observed some
tension between Bahan and Judge Goslee.
{¶ 21} After dinner had been served, Judge Goslee was presented with a
mock award that he described as “a bit of a roast.” As he gave remarks after
accepting the award, Bahan started calling him foul names under her breath and her
voice got progressively louder. As the people around her told her to be quiet, she
stood up and loudly interrupted Judge Goslee, calling him a “piece of shit,” an
“asshole,” and a “motherfucker.”
{¶ 22} Bahan’s comments were loud enough for the entire room to hear.
Kennedy and Miranda Warren, an attorney who was seated five to ten feet away
from Bahan, testified that the other attendees appeared to be shocked by Bahan’s
conduct. Warren stated that she could see Judge Goslee and believed that he heard
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Bahan’s outburst, though she, Kennedy, and another attorney all testified that Judge
Goslee did not react.
The First Amendment and the regulation of attorney conduct
{¶ 23} As a general matter, “the First Amendment means that government
has no power to restrict expression because of its message, its ideas, its subject
matter, or its content.” Chicago Police Dept. v. Mosley, 408 U.S. 92, 95, 92 S.Ct.
2286, 33 L.Ed.2d 212 (1972). That said, “the First and Fourteenth Amendments
have never been thought to give absolute protection to every individual to speak
whenever or wherever he pleases or to use any form of address in any circumstances
that he chooses.” Cohen v. California, 403 U.S. 15, 19, 91 S.Ct. 1780, 29 L.Ed.2d
284 (1971).
{¶ 24} “It is unquestionable that in the courtroom itself, during a judicial
proceeding, whatever right to ‘free speech’ an attorney has is extremely
circumscribed.” Gentile v. Nevada State Bar, 501 U.S. 1030, 1071, 111 S.Ct. 2720,
115 L.Ed.2d 888 (1991). And “[e]ven outside the courtroom, * * * lawyers in
pending cases [a]re subject to ethical restrictions on speech to which an ordinary
citizen would not be.” Id.{¶ 25} The United States Supreme Court has also recognized that “[e]ven
in an area far from the courtroom and the pendency of a case, our decisions dealing
with a lawyer’s right under the First Amendment to solicit business and advertise,
contrary to promulgated rules of ethics, have not suggested that lawyers are
protected by the First Amendment to the same extent as those engaged in other
businesses.” Id. at 1073, citing Bates v. Arizona State Bar, 433 U.S. 350, 97 S.Ct.
2691, 53 L.Ed.2d 810 (1977), Peel v. Attorney Registration and Disciplinary
Comm. of Illinois, 496 U.S. 91, 110 S.Ct. 2281, 110 L.Ed.2d 83 (1990), and Ohralik
v. Ohio State Bar Assn., 436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978). “In
each of these cases, [the court] engaged in a balancing process, weighting the
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State’s interest in the regulation of a specialized profession against a lawyer’s First
Amendment interest in the kind of speech that was at issue.” Gentile at 1073.
{¶ 26} Perhaps more importantly, the Supreme Court has recognized an
attorney’s duty to maintain a respectful attitude toward the courts.
[T]he obligation which attorneys impliedly assume, if they do not
by express declaration take upon themselves, when they are
admitted to the bar, is not to merely be obedient to the Constitution
and laws, but to maintain at all times the respect due to courts of
justice and judicial officers. This obligation is not discharged by
merely observing the rules of courteous demeanor in open court, but
it includes abstaining out of court from all insulting language and
offensive conduct toward the judges personally and for their judicial
acts.
Bradley v. Fisher, 80 U.S. 335, 355, 20 L.Ed. 646 (1871).
{¶ 27} In an effort to preserve the honor, integrity, and dignity of the legal
profession and Ohio courts, this court has adopted Gov.Bar R. IV(2) to regulate
attorney conduct toward the courts. That rule provides: “It is the duty of the lawyer
to maintain a respectful attitude toward the courts, not for the sake of the temporary
incumbent of the judicial office, but for the maintenance of its supreme
importance.” While recognizing that judges and justices are entitled to receive the
support of lawyers against unjust criticism and clamor, the rule declares that a
lawyer has the right and duty to submit a grievance to proper authorities,
“[w]henever there is proper ground for serious complaint of a judicial officer.” Id.Indeed, it emphasizes that “[t]hese charges should be encouraged and the person
making them should be protected.” Id.8
January Term, 2022
{¶ 28} The requirements of Gov.Bar R. IV(2) are consistent with an Ohio
lawyer’s oath to conduct herself “with dignity and civility and show respect toward
judges, court staff, clients, fellow professionals, and all other persons” in her
capacity as an attorney and an officer of the court. Gov.Bar R. I(9)(A). Those
requirements are also consistent with Section 5 of the preamble to the Ohio Rules
of Professional Conduct, which provides that “[a] lawyer should demonstrate
respect for the legal system and for those who serve it, including judges, other
lawyers, and public officials,” and underscores that “[a]lthough a lawyer, as a
citizen has a right to criticize such officials, the lawyer should do so with restraint
and avoid intemperate statements that tend to lessen public confidence in the legal
system.”
{¶ 29} Significantly, none of these regulations prohibit a lawyer from
speaking on any subject matter. Instead, they require a lawyer to conduct herself
with the dignity and respect that is commensurate with her role as an officer of the
court to encourage civility and to preserve public confidence in the legal system.
Analysis of Bahan’s objection
{¶ 30} Bahan contends that Gov.Bar R. IV(2) should not be broadly
interpreted so as to proscribe the use of offensive language to criticize a judge.
Citing Disciplinary Counsel v. Gardner, 99 Ohio St.3d 416, 2003-Ohio-4048, 793
N.E.2d 425, Bahan asserts that 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.” But Bahan was not charged under the rule that
prohibits an attorney from knowingly making a false accusation against a judge.
She was charged under a rule that requires a lawyer to maintain a respectful attitude
toward the courts.
{¶ 31} Here, Bahan’s conduct is not objectionable simply because she
publicly criticized Judge Goslee and it remains unclear how directing profane
insults toward a judge is “political speech.” Bahan argues that she intended to
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express her disapproval of Judge Goslee’s courtroom conduct that purportedly led
the bar association to present him with a mock award that evening. But Bahan did
not associate her vulgarities with any other facts or context. Instead, on its face,
Bahan’s conduct—offensive name-calling, which was apparently induced by
alcohol and directed toward a sitting judge while he was being publicly recognized
at a bar-association function—erodes the civility, dignity, and respect for the rule
of law contrary to an attorney’s duty described in Gov.Bar R. IV(2).
{¶ 32} Bahan argues that her speech is not sanctionable under the First
Amendment standard set forth in Berry v. Schmitt, 688 F.3d 290 (6th Cir.2012).
But the Sixth Circuit in Berry expressly stated: “We also take no position on the
constitutionality of sanctioning a lawyer’s profanity or threats directed against the
courts, or other examples of a lawyer’s unmitigated expression of disrespect for the
law, even outside the courtoom.” Id. at 305. Bahan’s conduct is more fitting of
this description than to being categorized as political speech. Thus, Berry is not
applicable to the facts of this case.
{¶ 33} Unlike the opinion concurring in judgment only, we fail to see how
finding misconduct in this case will have a chilling effect on “legitimate [attorney]
criticism of the judiciary.” Opinion concurring in judgment only, ¶ 106. Surely,
we are not asked to determine whether Bahan’s choice expletives to describe Judge
Goslee are “legitimate criticism” or even whether they are knowingly false. The
opinion concurring in judgment only also suggests that a finding of misconduct
here sends a message that attorneys should not get “anywhere close to the line of
saying something about the judiciary that someone might consider disrespectful.”
Id. at ¶ 107. We do not agree that the facts of this case are “close to the line” or
otherwise warrant such a concern.
{¶ 34} By accepting the privilege of practicing law, an attorney accepts
certain conditions and duties as an officer of the court. Cleveland Metro. Bar Assn.
v. Morton, __ Ohio St.3d __, 2021-Ohio-4095, __ N.E.3d __, ¶ 38 (O’Connor, C.J.,
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concurring). And while the First Amendment may be invoked as a defense for
permissible criticism, see, e.g., In re Sawyer, 360 U.S. 622, 79 S.Ct. 1376, 3
L.Ed.2d 1473 (1959), Gardner, 99 Ohio St.3d 416, 2003-Ohio-4048, 793 N.E.2d
425, that is not the situation here. We therefore overrule Bahan’s first objection
and adopt the board’s finding that her conduct at the December 2018 Logan County
Bar Association event violated Gov.Bar R. IV(2).
{¶ 35} The opinion concurring in part and dissenting in part asserts that
Gov.Bar R. IV(2) “is not a stand-alone, independent ground on which to discipline
Bahan.” Opinion concurring in part and dissenting in part, ¶ 66. It also asserts that
because Gov.Bar R. IV(2) is not one of the Rules of Professional Conduct, it
“cannot serve as an underlying basis for an allegation of misconduct.” Id. at ¶ 77.
But those claims are without basis.
{¶ 36} Indeed, this court has publicly reprimanded an attorney based solely
on his violations of the Rules of the Government of the Bar. See, e.g., Cincinnati
Bar Assn. v. Brand, 164 Ohio St.3d 542, 2021-Ohio-2122, 173 N.E.3d 1211. In
Brand, a unanimous decision issued last year, this court adopted the board’s
findings of misconduct based on Jack Irwin Brand’s violations of Gov.Bar R.
V(23)(C) (requiring a lawyer seeking to enter into an employment, contractual, or
consulting relationship with a disqualified or suspended attorney to register that
relationship with the Office of Disciplinary Counsel), Gov.Bar R. V(23)(D)
(requiring the lawyer entering into an employment, contractual, or consulting
relationship with a disqualified or suspended attorney to receive written
acknowledgment of that relationship from the Office of Disciplinary Counsel
before the relationship commences), and Gov.Bar R. V(23)(F) (requiring an
attorney to provide advance written notice to a client that a disqualified or
suspended attorney will perform work or provide services on the client’s case). To
be clear, this court found no accompanying violation of a Rule of Professional
Conduct. And that decision was not an anomaly. See, e.g., Columbus Bar Assn. v.
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Dugan, 113 Ohio St.3d 370, 2007-Ohio-2077, 865 N.E.2d 895, ¶ 3 (publicly
reprimanding an attorney for violating Gov.Bar R. V(8)(G)(1) (requiring a lawyer
who employs a lawyer with a suspended license to register the employment with
the Office of Disciplinary Counsel) and, for separate conduct, violating former
disciplinary rules); Cleveland Bar Assn. v. Allanson, 72 Ohio St.3d 228, 648 N.E.2d
1340 (1995) (publicly reprimanding an attorney for violating former Gov.Bar R.
V(5)(A), which is now Gov.Bar R. V(4)(G) (requiring a lawyer to cooperate with
a disciplinary investigation) and Gov.Bar R. VI(1)(A) (requiring an attorney to
comply with regulations for biennial registration and payment of fees)).
{¶ 37} In addition, this court has disciplined attorneys for violating the same
rule at issue here, Gov.Bar R. IV(2). See Disciplinary Counsel v. Proctor, 131 Ohio
St.3d 215, 2012-Ohio-684, 963 N.E.2d 806, ¶ 5, 8; Disciplinary Counsel v. Frost,
122 Ohio St.3d 219, 2009-Ohio-2870, 909 N.E.2d 1271, ¶ 5; Disciplinary Counsel
v. Watterson, 114 Ohio St.3d 159, 2007-Ohio-3615, 870 N.E.2d 1153, ¶ 29.
Although the attorneys in those cases also violated various former disciplinary
rules, we did not make a distinction between the two sets of rules or otherwise
disregard the violation of Gov.Bar R. IV(2), as the opinion concurring in part and
dissenting in part suggests that we must do here.
{¶ 38} The opinion concurring in part and dissenting in part asserts that
because Gov.Bar R. IV(1) places attorneys on notice that they must comply with
the Rules of Professional Conduct, but does not expressly state that attorneys must
also comply with the Rules for the Government of the Bar, this court does not have
the authority to sanction an attorney for violating the Rules for the Government of
the Bar. But Gov.Bar R. IV(1) does not contain any such limitation. Nor does it
contain language stating that the Rules of Professional Conduct are the exclusive
parameters on an attorney’s conduct. The Rules for the Government of the Bar
delineate things like the requirements for an attorney’s admission to the bar,
attorney registration, and continuing legal education. See Gov.Bar R. I, VI, and X.
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But if we were to accept the statements in the separate opinion as true, the Rules
for the Government of the Bar would be unenforceable unless a parallel Rule of
Professional Conduct existed. And that interpretation is not supported by either set
of rules or this court’s precedent.
{¶ 39} If the separate opinions intend to suggest that the Rules for the
Government of the Bar are not clear regarding an attorney’s risk of being sanctioned
for his or her failure to comply with those rules, then there is a process by which
this court may amend those rules. However, not even Bahan argues that she may
not be sanctioned for violating one of the Rules for the Government of the Bar.
Instead, Bahan argues that her conduct did not constitute a violation of Gov.Bar R.
IV(2). Thus, our analysis here remains within that scope, and we rely on this court’s
significant body of precedent in which it affirmed findings of misconduct based on
a violation of the Rules for the Government of the Bar.
The record supports two of the board’s three findings that Bahan engaged in
conduct that was prejudicial to the administration of justice
{¶ 40} In her second and third objections, Bahan contends that the evidence
does not support the board’s finding that the incidents of alcohol-related conduct in
Count Two were prejudicial to the administration of justice. Specifically, Bahan
contends that (1) she appropriately called the sheriff’s office to report the alleged
theft of her car and iPad and (2) relator’s evidence was insufficient to support a
finding that drinking a single glass of wine with dinner before conducting a visit to
her ward’s home was prejudicial to the administration of justice.
{¶ 41} Bahan maintains that she had a right to report a crime or an
emergency and that her May 2019 and February 2017 calls to the Logan County
Sheriff’s Office did just that. To support that claim, she asserts (1) that the deputy
who responded to the call pertaining to the theft of her iPad testified that she “did
the right thing” by contacting law enforcement, and (2) that another officer, who
testified about responding to the call that Bahan had made regarding the alleged
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theft of her vehicle, “likewise saw no problem with [her] contact with law
enforcement.” Bahan argues that both officers expressed their preference to receive
calls like Bahan’s sooner rather than later when they involve situations that could
lead to domestic violence.
{¶ 42} All told, law-enforcement officers spent more than an hour
responding to Bahan’s claim that her vehicle had been stolen. And Bahan’s initial
report to law enforcement in no way suggested that the alleged theft involved a
domestic dispute or a threat of domestic violence.
{¶ 43} Regarding the alleged iPad theft, the deputy’s audio recording of the
incident suggests that Bahan’s son was authorized to use the device for schoolwork,
but that Bahan attempted to take it away from him that night. Her son retreated to
his room before leaving the home for the night.
{¶ 44} The deputies who responded to the scene never investigated Bahan’s
allegations that her son had stolen her iPad because her husband had also called 9-
1-1 to report—and the deputies’ observations confirmed—that Bahan was heavily
intoxicated and was the one who had been causing problems at the home. Bahan’s
retrospective suggestion that her drunken call may have been intended to forestall
the potential for domestic violence from which her son had retreated is not
persuasive. Nor does the absence of criminal charges for her drunken and
questionable reports absolve her of her misuse of law-enforcement resources. We
therefore overrule Bahan’s second objection and find that her two reports to law
enforcement were prejudicial to the administration of justice in violation of
Prof.Cond.R. 8.4(d).
{¶ 45} However, we sustain Bahan’s third objection challenging the board’s
findings regarding her conduct as a GAL more than 10 years ago. Although Bahan
admitted to having consumed a glass of wine before conducting a surprise visit at
the home of her ward’s mother, she also testified that after that visit, she and the
judge who had appointed her to the case discussed the matter. Ultimately, Bahan
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completed her representation in that case and thereafter submitted a bill and
received payment. And she stated that the judge continued to appoint her as a GAL
in other cases. The judge, however, testified that he believed that Bahan had
withdrawn from the case at his suggestion.
{¶ 46} In the absence of any clear and convincing evidence tending to show
that Bahan’s judgment was impaired that night or that her alcohol consumption
somehow prejudiced the rights of the ward’s mother, we reject the board’s findings
that her conduct in that case was prejudicial to the administration of justice. We
therefore sustain Bahan’s third objection.
{¶ 47} Having overruled Bahan’s first and second objections, we agree with
the board’s findings that her conduct violated Gov.Bar R. IV(2) and Prof.Cond.R.
8.4(d).
Bahan has failed to prove that the panel’s evidentiary rulings prejudiced her case
{¶ 48} Bahan’s fourth objection relates to the panel’s evidentiary rulings at
her disciplinary hearing. On October 21, 2020, relator filed a motion in limine
seeking to exclude the testimony of Bahan’s witnesses who were not disclosed to
relator until October 20, 2020—one week before the disciplinary hearing. In
response, Bahan argued that the panel chair had vacated every deadline for the
disclosure of witnesses except for the order directing the parties to file their final
witness lists, hearing exhibits, and stipulations by October 20, 2020. At the
beginning of the disciplinary hearing, the panel chair issued an interlocutory order
that Bahan’s newly disclosed witnesses would be permitted to testify about Bahan’s
character, reputation, and professionalism and their observations regarding her
alcohol use, but that they would not be permitted to testify about any of the
contested matters in the case. Bahan objects to that ruling and argues that the
panel’s limitation of her witnesses’ testimony violated her right to due process.
{¶ 49} The record shows that the panel chair vacated two scheduling orders
in Bahan’s disciplinary case—one requiring the parties to disclose their witness
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lists on or before March 18, 2020, and the other requiring that disclosure was to be
made no later than June 5. Both orders were vacated after the disclosure-of-
witness-list deadlines had passed. The order vacating the June 5 deadline plainly
contemplated that the parties had already exchanged their initial witness lists as it
stated that “[t]he parties shall file final witness lists, hearing exhibits, and
stipulations on or before October 20, 2020.” (Emphasis added.) But Bahan did not
submit a witness list of any kind until October 20, 2020.
{¶ 50} Although the panel’s scheduling orders could have been more
carefully drafted, Bahan’s first two deadlines for disclosing witnesses had passed
well before the orders vacating those deadlines. In addition, Evid.R. 103(A)(2)—
which is made applicable to disciplinary proceedings by Gov.Bar R. V(27)(A)—
provides that an error may not be predicated on a ruling which excludes evidence
unless the ruling affects a party’s substantial right and the party made the substance
of the evidence known to the court.
{¶ 51} Here, the panel chair agreed to keep an open mind regarding the
extent of the testimony that he would allow from Bahan’s witnesses and stated that
Bahan could proffer any testimony that she believed to have been wrongly
excluded. But Bahan made only one proffer of evidence to counter testimony that
she had smelled strongly of alcohol while representing a criminal defendant at
trial—and it was unrelated to any of the misconduct that had been found by the
board. Because Bahan failed to proffer the excluded evidence or otherwise
demonstrate how the panel’s evidentiary ruling prejudiced her case, we overrule
her fourth objection.
Recommended Sanction
{¶ 52} When imposing sanctions for attorney 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.
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{¶ 53} The board found that four aggravating factors are present in this case,
namely that Bahan (1) has prior discipline, (2) engaged in a pattern of misconduct,
(3) committed multiple offenses, and (4) refused to acknowledge the wrongful
nature of her conduct. See Gov.Bar R. V(13)(B)(1), (3), (4), and (7). As mitigating
factors, the board found that Bahan acted without a dishonest or selfish motive and
that she exhibited a cooperative attitude toward the disciplinary proceedings. See
Gov.Bar R. V(13)(C)(2) and (4). The board declined to accord any mitigating
effect to the testimony of Mark O’Connor (a former judge in the Logan County
Court of Common Pleas) and Wade Thomas Minahan (a former magistrate in the
Logan County Court of Common Pleas), upon finding that those witnesses testified
to Bahan’s competence as an attorney and not to her character or reputation as
contemplated by Gov.Bar R. V(13)(C)(5).
{¶ 54} Although Bahan has been evaluated by OLAP twice in the past, it is
not clear from the record that she has submitted to a comprehensive substance-use
assessment conducted by a qualified chemical-dependency professional in
conjunction with the alcohol-related incidents in this case.
{¶ 55} The board considered the sanctions we have imposed for comparable
misconduct in multiple cases. There are several cases in which we disciplined an
attorney (or a judge) for multiple ethical violations, including violations of Gov.Bar
R. IV(2), for making unfounded allegations against judges and other public
officials. For example, in Gardner, 99 Ohio St.3d 416, 2003-Ohio-4048, 793
N.E.2d 425, we imposed a six-month suspension on an attorney who, in a motion
for reconsideration, accused an appellate-court panel of being dishonest, ignoring
well-established law, and distorting the truth when the appellate court ruled against
his client. And in Disciplinary Counsel v. Ferreri, 85 Ohio St.3d 649, 710 N.E.2d
1107 (1999), we imposed an 18-month suspension, with 12 months conditionally
stayed, on a judge who had made false and unfounded statements to the media about
judges and other public officials. Ferreri stated that (1) an appellate-court panel
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had issued a politically motivated decision, (2) a judge had engaged in a conspiracy
to cover up the mistreatment of juveniles by detention-center staff, and (3) another
judge or those under his direct supervision had lied to the federal government about
the success of a juvenile boot-camp program.
{¶ 56} The board also considered the sanctions that we imposed on
attorneys who engaged in alcohol-related misconduct. For example, in
Disciplinary Counsel v. Mitchell, 158 Ohio St.3d 356, 2019-Ohio-5218, 142
N.E.3d 669, we imposed a one-year conditionally stayed suspension on an attorney
who was convicted of driving while intoxicated and fleeing the scene of an accident
involving injuries to the driver and passenger of the other vehicle. In Lorain Cty.
Bar Assn. v. Lewis, 152 Ohio St.3d 614, 2018-Ohio-2024, 99 N.E.3d 404, we
imposed a two-year suspension, with six months conditionally stayed, on an
attorney who had left the scene of a motor-vehicle accident after a night of drinking
and who was later convicted of obstructing official business for submitting a false
witness statement to police. And in Disciplinary Counsel v. Scurry, 115 Ohio St.3d
201, 2007-Ohio-4796, 874 N.E.2d 521, we imposed a two-year conditionally
stayed suspension on an attorney who, while intoxicated, met with clients and
attempted to manage his professional affairs.
{¶ 57} The board found that Bahan’s profane and alcohol-fueled outburst
against Judge Goslee was not nearly as egregious as the allegations that had been
made against the attorney in Gardner. The board further noted that Bahan’s
outburst at a private, bar-association event was also not as egregious as what had
occurred in Fererri—i.e., that judge made some negative statements that were
published by the media. Moreover, the board found that none of Bahan’s
misconduct adversely affected her clients or resulted in a criminal conviction,
rendering her conduct substantially less egregious than the attorneys in Mitchell
and Lewis—both of whom left the scene of alcohol-related motor-vehicle accidents.
Balancing these facts with the aggravating and mitigating factors present in this
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case, the board determined that Bahan’s misconduct warranted a lesser sanction
than the fully stayed one-year suspension that we imposed in Mitchell. The board
therefore recommends that we impose a six-month suspension, with the entire
suspension stayed on the condition that Bahan engage in no further misconduct and
pay the cost of these proceedings.
Bahan’s Objection to the Recommended Sanction
{¶ 58} Bahan objects to the board’s recommended sanction and argues that
a public reprimand is the appropriate sanction for her misconduct. In support of
that sanction, she cites three cases in which we publicly reprimanded attorneys for
misconduct that she believes to be more analogous to her own: Erie-Huron Cty.
Bar Assn. v. Bailey, 161 Ohio St.3d 146, 2020-Ohio-3701, 161 N.E.3d 590(publicly reprimanding an attorney who knowingly or recklessly made false
statements on Facebook concerning the integrity of the judge who had jailed his
father for direct contempt of court), Disciplinary Counsel v. Grimes, 66 Ohio St.3d
607, 614 N.E.2d 740 (1993) (publicly reprimanding an attorney for making
inappropriate and disrespectful statements about a judge to a newspaper reporter
and for making inappropriate statements during a hearing), and Columbus Bar Assn.
v. Riebel, 69 Ohio St.2d 290, 432 N.E.2d 165 (1982) (publicly reprimanding an
attorney who directed verbal and written obscenities at an adverse party in a divorce
proceeding). But none of those attorneys had a record of prior discipline, and
Bahan does.
{¶ 59} Next, Bahan asserts that the board erred by drawing a false
distinction between evidence of “character” and evidence of “competence,” and it
therefore failed to credit her with the good-character-or-reputation mitigation
factor, see Gov.Bar R. V(13)(C)(5), based on the favorable testimony that former
judge O’Connor and former magistrate Minahan gave regarding her competence as
an attorney. Bahan cites two cases in which we afforded some mitigating effect to
evidence of the respondents’ competence and/or professionalism as opposed to
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their character or reputation. See Disciplinary Counsel v. Adelstein, 160 Ohio St.3d
511, 2020-Ohio-3000, 159 N.E.3d 1126, ¶ 16 (attributing some mitigating effect to
client letters attesting to the respondent’s competence and capability as an
attorney); Dayton Bar Assn. v. Rogers, 116 Ohio St.3d 99, 2007-Ohio-5544, 876
N.E.2d 923, ¶ 17 (attributing some mitigating effect to client letters attesting to the
respondent’s competence and professionalism). But here, Bahan presented
evidence from two judicial officers who had been retired for at least four years
before the date of her disciplinary hearing and well before the misconduct in this
case even occurred. And Judge O’Connor observed Bahan’s courtroom
performance after his retirement only once, in a case in which he served as a visiting
judge. For these reasons, we find that evidence of Bahan’s competence is of limited
probative value and afford it no mitigating weight.
{¶ 60} Lastly, Bahan argues that she is entitled to a reduction in board costs
that is commensurate with the overall results of this proceeding. She notes one case
in which we reduced the amount of the costs that a respondent was liable to pay
after 9 of the 17 alleged rule violations were dismissed. See Akron Bar Assn. v.
Shenise, 143 Ohio St.3d 134, 2015-Ohio-1548, 34 N.E.3d 910, ¶ 26 (reducing the
respondent’s liability for costs from $9,571.08 to $4,000). In this case, however,
relator withdrew one count from the complaint without presenting any evidence of
the violations alleged therein and the panel dismissed a second count following the
hearing. Bahan was found to have committed one of the two alleged rule violations
charged in each of the two remaining counts. While the costs incurred in
connection with this proceeding may be on the higher side of normal for the number
of violations that we have found, we do not find that they are so out of line as to
warrant a reduction.
{¶ 61} Having considered Bahan’s misconduct, the relevant aggravating
and mitigating factors, and the sanctions imposed for comparable misconduct, we
agree that a six-month conditionally stayed suspension is the appropriate sanction
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in this case. Given that Bahan’s alcohol use played a significant role in the
misconduct at issue, and that Bahan has not submitted to a substance-use
assessment conducted by a qualified chemical-dependency professional since that
misconduct occurred, a condition of the stay shall include a requirement that she
submit to an OLAP substance-use assessment.
Conclusion
{¶ 62} Accordingly, Natalie J. Bahan is suspended from the practice of law
in Ohio for six months, with the entire suspension stayed on the conditions that she
engage in no further misconduct, submit to a substance-use assessment conducted
by OLAP, and comply with all the recommendations arising from that assessment.
If Bahan fails to comply with any condition of the stay, it will be lifted and she will
serve the full six-month suspension. Costs are taxed to Bahan.
Judgment accordingly.
FISCHER, DONNELLY, STEWART, and BRUNNER, JJ., concur.
KENNEDY, J., concurs in part and dissents in part, with an opinion joined by
DEWINE, J., except for paragraphs 85 and 86.
DEWINE, J., concurs in judgment only, with an opinion joined by
KENNEDY, J.
_________________
KENNEDY, J., concurring in part and dissenting in part.
{¶ 63} I agree with the majority that respondent, Natalie J. Bahan, violated
Prof.Cond.R. 8.4(d), which prohibits a lawyer from engaging in conduct that is
prejudicial to the administration of justice. On two occasions, she contacted law
enforcement while intoxicated to report minor incidents involving her family. I
therefore concur with the majority that the appropriate sanction is a six-month
suspension, with the entire suspension stayed on the conditions that Bahan engage
in no further misconduct, that she complete a substance-use assessment conducted
by the Ohio Lawyers Assistance Program (“OLAP”), and that she comply with all
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the recommendations arising from that assessment. I would also require Bahan to
contact OLAP within 60 days after this court’s judgment to begin the process for
the substance-use assessment.
{¶ 64} I part ways with the majority’s analysis regarding Count One, which
alleges that Bahan violated Gov.Bar R. IV(2) by failing to maintain a “respectful
attitude” toward the courts when she called a judge expletives during a bar-
association holiday event.
{¶ 65} I agree with the opinion concurring in judgment only that the First
Amendment of the United States Constitution prohibits this court from discipling
an attorney solely for exhibiting a disrespectful attitude toward the courts. The
majority today has made Gov.Bar R. IV(2) a content-based regulation that prohibits
lawyers from calling judges—but no one else—rude names. More alarming is that
this case is just part of a recent trend in which the majority is ordering that any
criticism of the judiciary be kept silent. Last year, this court disciplined an attorney
for impugning the integrity of this court when that attorney asserted that one of this
court’s judgments had been based on political motivations. Cleveland Metro. Bar
Assn. v. Morton, ___ Ohio St.3d ___ 2021-Ohio-4095, ___ N.E.3d ___. Today, the
majority punishes an attorney for failing to show the appropriate amount of respect
toward a judge outside a courtroom. In barring attorney speech that supposedly
erodes “respect for the rule of law,” majority opinion, ¶ 31, the majority chills an
attorney’s ability to express dissatisfaction in the judiciary in words (that a judge
is, perhaps, “incompetent,” “unreasonable,” or just “wrong”) or tone. Ohioans
should no more countenance the majority slicing away bit by bit at their
fundamental right of the freedom of expression any more than they would permit
the government to enter their homes to cut away the legs of their dining-room
tables.
{¶ 66} The focus of this dissent, however, will be a textual analysis of the
majority’s disturbing trend toward ignoring the plain language of Ohio’s
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disciplinary rules. See, e.g., Morton at ¶ 47-48 (Kennedy, J., dissenting). Although
Gov.Bar R. IV(2) states that “[i]t is the duty of the lawyer to maintain a respectful
attitude toward the courts,” Gov.Bar R. IV(1) states that lawyers are obligated to
comply with the Ohio Rules of Professional Conduct and that “[t]he willful breach
of the Rules shall be punished by reprimand, suspension, disbarment, or probation
as provided in Gov.Bar R. V.” When these provisions are read together, the
unmistakable conclusion of their meaning is that Gov.Bar R. IV(2) is not a stand-
alone, independent ground on which to discipline Bahan because it is not one of the
Rules of Professional Conduct. The fact that the parties have failed to make this
argument in this case or that this court has failed to notice its inapplicability in past
cases does not justify turning a blind eye to the plain language of Gov.Bar R. IV,
especially when a person’s freedom of speech hangs in the balance.
{¶ 67} Because Gov.Bar R. IV(1) limits attorney discipline to violations of
the Rules of Professional Conduct, I would hold that Gov.Bar R. IV(2) cannot serve
as an independent basis for sanctioning misconduct. Therefore, I would dismiss
that count of the complaint on procedural grounds and would not reach Bahan’s
First-Amendment-grounds objection to that count.
{¶ 68} After dismissing Count One, I would sanction Bahan for violating
Prof.Cond.R. 8.4(d). While there is no case directly on point for the misconduct at
issue here, we have imposed sanctions for a single violation of Prof.Cond.R. 8.4(d)
based on alcohol-related misconduct. Those cases, along with the aggravating and
mitigating factors in this case, demonstrate that the appropriate sanction here is a
six-month suspension, with the entire suspension stayed. Therefore, I concur in the
majority’s sanction—a six-month suspension, fully stayed on the conditions that
Bahan engage in no further misconduct, that she contact OLAP for a substance-use
assessment conducted by OLAP, and that she comply with all recommendations
arising from that assessment. Additionally, I would require Bahan to contact OLAP
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within 60 days of this opinion to begin the process for her substance-use
assessment.
{¶ 69} For these reasons, I concur in part and dissent in part.
Gov.Bar R. IV
{¶ 70} Count One of the complaint charged Bahan with misconduct from
two separate sources, the Rules of Professional Conduct (Prof.Cond.R. 8.4(h)) and
the Rules for the Government of the Bar (Gov.Bar R. IV(2)). The allegations
stemmed from an alleged loud, profane, and drunken outburst that Bahan directed
at a common-pleas-court judge during the Logan County Bar Association’s annual
holiday party. After the hearing, the panel unanimously dismissed the alleged
violation of Prof.Cond.R. 8.4(h). The panel nevertheless proceeded to find that
Bahan had violated Gov.Bar R. IV(2).
{¶ 71} The scope of the Rules of Professional Conduct provides “a
framework for the ethical practice of law.” Prof.Cond.R., Preamble [16]. “Failure
to comply with an obligation or prohibition imposed by a rule is a basis for invoking
the disciplinary process.” Id. at [19]. “[S]ince the rules do establish standards of
conduct by lawyers, a lawyer’s violation of a rule may be evidence of breach of the
applicable standard of conduct.” Id. at [20]. The professional-conduct rules
therefore establish the conduct that an attorney is required to abide by when
engaging in the practice of law: (1) in the client-lawyer relationship, Prof.Cond.R.
1.1 through 1.18, (2) as a counselor, Prof.Cond.R. 2.1, 2.2 and 2.3, (3) as an
advocate, Prof.Cond.R. 3.1 through 3.9, (4) in transactions with persons other than
clients, Prof.Cond.R. 4.1 through 4.4, (5) in law firms and associations,
Prof.Cond.R. 5.1 through 5.7, (6) in public service, Prof.Cond.R. 6.2 and 6.5,
(7) regarding information about legal services, Prof.Cond.R. 6.1 through 6.7, and
(8) for maintaining the integrity of the profession, Prof.Cond.R. 8.1 through 8.5.
{¶ 72} In comparison, the Rules for the Government of the Bar address,
generally, two separate mandates. First, they establish the requirements and
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procedures to become licensed to practice law in Ohio. See, e.g., Gov.Bar R. I
(admission to the practice of law) and XII (pro hac vice admission). Second, the
rules set forth the professional responsibilities that are required for attorneys to
remain licensed to practice law in Ohio. See, e.g., Gov.Bar R. IV (professional
responsibility), VI (registration of attorneys), and X (continuing legal education).
{¶ 73} The specific rule at issue, Gov.Bar R. IV, has two provisions:
Section 1. Applicability. The Ohio Rules of Professional
Conduct, effective February 1, 2007, as amended, shall be binding
upon all persons admitted to practice law in Ohio. The willful
breach of the Rules shall be punished by reprimand, suspension,
disbarment, or probation as provided in Gov.Bar R. V.
Section 2. Duty of Lawyers. It is the duty of the lawyer to
maintain a respectful attitude toward the courts, not for the sake of
the temporary incumbent of the judicial office, but for the
maintenance of its supreme importance. Judges and Justices, not
being wholly free to defend themselves, are peculiarly entitled to
receive the support of lawyers against unjust criticism and clamor.
Whenever there is proper ground for serious complaint of a judicial
officer, it is the right and duty of the lawyer to submit a grievance to
proper authorities. These charges should be encouraged and the
person making them should be protected.
{¶ 74} I recognize that this court has previously disciplined attorneys for
violating the Rules for the Government of the Bar in general and Gov.Bar R. IV(2)
in particular. See, e.g., Disciplinary Counsel v. Brown, 90 Ohio St.3d 273, 737
N.E.2d 516 (2000); Disciplinary Counsel v. Cicero, 78 Ohio St.3d 351, 678 N.E.2d
517 (1997). But in deciding those cases, the court never specifically addressed
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whether Gov.Bar R. IV(2) could be a stand-alone violation. As we explained long
ago, “A reported decision, although in a case where the question might have been
raised, is entitled to no consideration whatever as settling, by judicial
determination, a question not passed upon or raised at the time of the adjudication.”
State ex rel. Gordon v. Rhodes, 158 Ohio St. 129, 107 N.E.2d 206 (1952), paragraph
one of the syllabus. Therefore, prior decisions have little bearing on this issue.
{¶ 75} I also acknowledge that Bahan has not raised the issue whether
Gov.Bar R. IV(2) may be a stand-alone violation. However, the failure to raise that
issue does not prevent this court from reviewing it when called upon to determine
whether an attorney may be sanctioned for violating Gov.Bar R. IV(2). In
interpreting the Rules of Professional Conduct and the Rules for the Government
of the Bar, we “have the authority and the duty to ‘say what the law is.’ ” In re
Determination of Existence of Significantly Excessive Earnings for 2017 Under the
Elec. Sec. Plan of Ohio Edison Co., 162 Ohio St.3d 651, 2020-Ohio-5450, 166
N.E.3d 1191, ¶ 105 (Kennedy, J., concurring in judgment only in part and
dissenting in part), quoting Marbury v. Madison, 5 U.S. 137, 177, 2 L.Ed. 60(1803). Therefore, we abdicate that responsibility when we fail to apply the correct
meaning of a rule just because a party has not asked us to do so. Id.{¶ 76} The majority gives two responses for why an attorney may be
disciplined for violating Gov.Bar R. IV(2). First, it points out that Gov.Bar R. IV(1)
does not “contain language stating that the Rules of Professional Conduct are the
exclusive parameters on an attorney’s conduct.” Majority opinion at ¶ 38. But
Gov.Bar R. IV(1) lists the sanctions that may be imposed for attorney misconduct.
And if a violation for one of the Rules for the Government of the Bar were subject
of those sanctions, one would naturally expect Gov.Bar R. IV(1) to say so. Instead,
Gov.Bar R. IV(1) singles out the professional-conduct rules, and states that a
violation of the Rules of Professional Conduct is to be punished by reprimand,
suspension, disbarment, or probation. Accordingly, this statement creates the
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January Term, 2022
common-sense inference that a violation of a different set rules (i.e., the Rules for
the Government of the Bar) is not subject to those sanctions. See Scalia & Garner,
Reading Law: The Interpretation of Legal Texts 107 (2012). To accept the
majority’s interpretation would mean disciplining an attorney solely by reading
between the lines of Gov.Bar R. IV(1). We cannot do that. Second, the majority
falls back on the position that a contrary holding would mean that the Rules for the
Government of the Bar would be unenforceable unless a parallel Rule of
Professional Conduct existed. Majority opinion at ¶ 38. But that is a judgment
based on policy, and a policy judgment does not give this court license to read
language that is not there to cure an oversight in Gov.Bar R. IV(1).
{¶ 77} The plain and unambiguous language of Gov.Bar R. IV(1) places
attorneys on notice that their behavior and actions must comply with the Rules of
Professional Conduct and that an intentional breach of one of those rules could
result in discipline. Gov.Bar R. IV(2) is not one of the Rules of Professional
Conduct, and in my view, this general statement cannot serve as an underlying basis
for an allegation of misconduct.
{¶ 78} It is also important to note that Gov.Bar R. IV(2) admonishes
attorneys to maintain a respectful attitude toward the courts. A court is “ ‘a place
in which justice is judicially administered. It is the exercise of judicial power, by
the proper officer or officers, at a time and place appointed by law.’ ” State ex rel.
Cleveland Mun. Court v. Cleveland City Council, 34 Ohio St.2d 120, 121, 296
N.E.2d 544 (1973), quoting Todd v. United States, 158 U.S. 278, 284, 15 S.Ct. 889,
39 L.Ed. 982 (1895). As Gov.Bar R. IV(2) recognizes, there is a difference between
a court and “the temporary incumbent of the judicial office.” It is “a fundamental
understanding of constitutional democracy” that “judges are not imperial.” State v.
Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 21, overruled on
other grounds by State v. Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, 159
N.E.3d 248. Nor are they “anointed priests set apart from the community and
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spared the criticism to which * * * other public servants are exposed.” Bridges v.
California, 314 U.S. 252, 292, 62 S.Ct. 190, 86 L.Ed. 192 (1941) (Frankfurter, J.,
dissenting). Just like other public officials, judges are not insulated from public
comment that “may well include vehement, caustic, and sometimes unpleasantly
sharp attacks on government and public officials,” New York Times Co. v. Sullivan,
376 U.S. 254, 270, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). And here, Bahan made
an expletive-laden personal attack against a sitting judge outside the courtroom
setting. That setting—a bar-association holiday event—did not involve any need
to maintain decorum and order in the courtroom to ensure the proper functioning
of the court. Bahan’s behavior, although classless, did not implicate, much less
violate, Gov.Bar R. IV(2).
{¶ 79} To charge Bahan with misconduct for making improper statements
against a member of the judiciary, then, relator would have to have alleged that
Bahan violated Prof.Cond.R. 8.2(a), which provides that “[a] lawyer shall not make
a statement that the lawyer knows to be false or with reckless disregard as to its
truth or falsity concerning the qualifications or integrity of a judicial officer, or
candidate for election or appointment to judicial office.” (Italics sic.) However,
the facts of this case do not support such an allegation. Bahan made personal
attacks on the judge by using expletives. Those comments did not address his
qualifications or integrity but rather were expressions of opinion that do not amount
to defamation under the actual-malice standard, as established in Sullivan, 376 U.S.
254, 84 S.Ct. 710, 11 L.Ed.2d 686, that I believe is imposed by Prof.Cond.R. 8.2(a),
but which this court has not adopted. See Morton, __ Ohio St.3d __, 2021-Ohio-
4095, __ N.E.3d __, at ¶ 56-58 (Kennedy, J., dissenting).
{¶ 80} Because attorneys are not subject to discipline for violating Gov.Bar
R. IV(2), I would dismiss Count One of the complaint. Therefore, the only
remaining findings by the majority of misconduct by Bahan are the violations of
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Prof.Cond.R. 8.4(d), and I agree with the majority that the evidence in this case
proves that Bahan violated this rule.
The Appropriate Sanction for Violating Prof.Cond.R. 8.4(d)
{¶ 81} Turning to the appropriate sanction in this matter, the relevant
aggravating factors are that Bahan (1) has prior discipline, (2) engaged in a pattern
of misconduct, (3) committed multiple offenses, and (4) refused to acknowledge
the wrongful nature of her conduct. See Gov.Bar R. V(13)(B)(1), (3), (4), and (7).
The relevant mitigating factors are that Bahan (1) acted without a dishonest or
selfish motive and (2) exhibited a cooperative attitude toward the disciplinary
proceedings. See Gov.Bar R. V(13)(C)(2) and (4). I agree with the majority that
the testimony of Mark O’Connor (a former judge in the Logan County Court of
Common Pleas) and Wade Thomas Minahan (a former magistrate in the Logan
County Court of Common Pleas) attesting to Bahan’s competence is of limited
probative value and should be afforded no mitigating weight.
{¶ 82} Recently, in Cleveland Metro. Bar Assn. v. Hackerd, 156 Ohio St.3d
545, 2019-Ohio-1340, 130 N.E.3d 254, ¶ 12, this court considered for the first time
the appropriate sanction for a “stand-alone violation of Prof.Cond.R. 8.4(d).” In
Hackerd, the attorney continued to represent his client after being disqualified by
the trial court. We noted the absence of any aggravating factors and the presence
of four mitigating factors. “Hackerd ha[d] no prior disciplinary record, he acted
without a dishonest or selfish motive, he offered full and free disclosure to the board
and demonstrated a cooperative attitude toward the disciplinary proceedings, and
he presented evidence of his good character and reputation.” Id. at ¶ 11, citing
Gov.Bar R. V(13)(C)(1), (2), (4), and (5). On that record, this court determined
that a public reprimand was the appropriate sanction for a single rule violation.
{¶ 83} Additionally, as recognized by the majority, sanctions that have been
imposed on attorneys who engaged in alcohol-related misconduct should be
considered. In Disciplinary Counsel v. Mitchell, 158 Ohio St.3d 356, 2019-Ohio-
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5218, 142 N.E.3d 669, this court imposed a one-year conditionally stayed
suspension on an attorney based on his convictions for driving while intoxicated
and leaving the scene of an accident involving injuries to the driver and passenger
of the other vehicle. In Lorain Cty. Bar Assn. v. Lewis, 152 Ohio St.3d 614, 2018-
Ohio-2024, 99 N.E.3d 404, the court imposed a two-year suspension, with six
months conditionally stayed, on an attorney who after being out drinking, left the
scene of a motor-vehicle accident and was later convicted of obstructing justice for
submitting a false witness statement to police. And in Disciplinary Counsel v.
Scurry, 115 Ohio St.3d 201, 2007-Ohio-4796, 874 N.E.2d 521, ¶ 4, this court
imposed a two-year conditionally stayed suspension on an attorney who, among
other things, “repeatedly met with clients and attempted to manage his professional
affairs while intoxicated.”
{¶ 84} Bahan’s misconduct is significantly more egregious than the
continued representation of a client after disqualification in Hackerd because it was
a pattern of conduct. She contacted law enforcement twice and made complaints
against family members to punish and embarrass that family member.
Additionally, Hackerd is not analogous to this case, because of the aggravating
factors present here. However, Bahan’s misconduct does not rise to the level of the
behavior sanctioned in Mitchell, Lewis, or Scurry. As recognized by the majority,
Bahan’s misconduct did not result in harm to any clients or a criminal conviction.
Although she was intoxicated on the two occasions that she called the sheriff’s
office to report that family members had stolen her property, she was not
representing clients or acting in the professional capacity of an attorney.
{¶ 85} Guided by our caselaw, I agree with the majority that the appropriate
sanction for Bahan’s misconduct is a six-month suspension, with the entire
suspension stayed on the condition that Bahan engage in no further misconduct,
that she complete a substance-use assessment conducted by OLAP, and that she
comply with all the recommendations arising from that assessment. However, I
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January Term, 2022
would also require Bahan to contact OLAP within 60 days after this court’s
judgment to begin the process for the substance-use assessment.
{¶ 86} Therefore, I concur in part and dissent in part.
DEWINE, J., concurs in the foregoing opinion, except for paragraphs 85 and
86.
_________________
DEWINE, J., concurring in judgment only.
{¶ 87} Today, the majority holds that an attorney may be punished under
the Rules for the Government of the Bar of Ohio for speech that fails “to maintain
a respectful attitude toward the courts.” Majority opinion, ¶ 26. In doing so, it
exceeds the limits of our disciplinary authority. Our rules allow us to punish only
attorney speech about a judge that the lawyer knows to be false or that is made with
reckless disregard as to its truth or falsity. Prof.Cond.R. 8.2(a). What’s more, in
holding that an attorney’s speech may be punished simply because it is disrespectful
of the judiciary, the majority makes mincemeat of First Amendment protections.
The unfortunate result will almost certainly be to chill other attorneys from
engaging in legitimate criticism of the judiciary.
We lack the authority to discipline an attorney for speech that is critical of the
judiciary under the Rules for the Government of the Bar
{¶ 88} I have no quarrel with the majority’s decision to discipline Natalie
Bahan for violating Prof.Cond.R. 8.4(d) (prohibiting a lawyer from engaging in
conduct that is prejudicial to the administration of justice) by making unnecessary
calls to law enforcement while she was intoxicated. And based on these violations,
I concur with the majority as to the sanction it imposes. But I take issue with the
majority’s decision to discipline Bahan for violating Gov.Bar R. IV(2) (requiring a
lawyer to maintain a respectful attitude toward the courts) for making demeaning
statements about a common-pleas judge at a bar association’s holiday party.
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{¶ 89} As the opinion concurring in part and dissenting in part points out,
Gov.Bar R. IV(2) does not provide this court with the authority to discipline an
attorney for engaging in speech that is critical of the judiciary. The Rules for the
Government of the Bar make clear that it is the Rules of Professional Conduct that
prescribe the standards under which an attorney may be disciplined. Gov.Bar R.
IV(1) provides that “[t]he willful breach of the Rules [of Professional Conduct]
shall be punished by reprimand, suspension, disbarment, or probation.”
{¶ 90} Thus, when it comes to disciplining attorney speech that is critical
of the judiciary, we must look to the standards set forth in the Rules of Professional
Conduct. Prof.Cond.R. 8.2(a) explicitly defines what an attorney may not say about
a judge: “[a] lawyer shall not make a statement that the lawyer knows to be false
or with reckless disregard as to its truth or falsity concerning the qualifications or
integrity of a judicial officer.” The majority errs by ignoring the professional-
conduct rule that defines the standards under which speech critical of the judiciary
may be sanctioned and instead opts to impose discipline under Gov.Bar R. IV(2)’s
amorphous “respectful attitude towards the courts” language.
Using Gov.Bar R. IV(2) as a basis to discipline attorney speech is inconsistent
with the First Amendment
{¶ 91} Not only is there no basis for this court to discipline an attorney for
an independent violation of Gov.Bar R. IV(2), but in doing so, the majority
eviscerates the protections on speech afforded by the Ohio and United States
Constitutions. The majority punishes Bahan for violating Gov.Bar R. IV(2)’s
admonition that “[i]t is the duty of the lawyer to maintain a respectful attitude
toward the courts.” Attorney criticism of courts, however, is expressly regulated
by Prof.Cond.R. 8.2(a), which provides that “[a] lawyer shall not make a statement
that the lawyer knows to be false or with reckless disregard as to its truth or falsity
concerning the qualifications or integrity of a judicial officer.” This professional-
conduct rule was carefully calibrated so as not to abridge First Amendment
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freedoms by adopting the actual-malice standard from New York Times Co. v.
Sullivan, 376 U.S. 254, 279-280, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (statement
is made with actual malice when it is made “with knowledge that it was false or
with reckless disregard of whether it was false or not”). In saying that an attorney’s
speech may now be punished simply because it fails to “maintain a respectful
attitude toward the courts,” majority opinion at ¶ 26, the majority substitutes an
amorphous standard for the one that was developed to conform with United States
Supreme Court precedent. It thus allows for the punishment of speech beyond that
proscribed by Prof.Cond.R. 8.2(a)—speech that is entitled to protection under the
Ohio and United States Constitutions.
{¶ 92} Just recently, the same majority that writes today stretched the
meaning of Prof.Cond.R. 8.2(a) well beyond its terms when it held that an
attorney’s criticism of the judiciary may be punished even though the attorney’s
statements have not been shown to be false. See Cleveland Metro. Bar Assn. v.
Morton, __ Ohio St.3d __, 2021-Ohio-4095, __ N.E.3d __. What it does in this
case is even more troubling. Today, it renders Prof.Cond.R. 8.2(a)’s actual-malice
standard largely beside the point. In essence, the majority says if we think your
speech is disrespectful, we can punish you even if your speech doesn’t violate
Prof.Cond.R. 8.2(a).
{¶ 93} Never mind that this holding flies in the face of controlling precent
from the United States Supreme Court. District Attorney Jim Garrison certainly
did not have a “respectful attitude toward the courts” when he held a press
conference criticizing a group of local judges for “inefficiency [and] laziness” and
suggested that the judges’ conduct might be explained by “racketeer influences on
[the parish’s] eight vacation-minded judges.” Garrison v. Louisiana, 379 U.S. 64,
66, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964). Nonetheless, the United States Supreme
Court found that Garrison’s speech was entitled to constitutional protection and that
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it could be punished only if it satisfied Sullivan’s actual-malice standard. Garrison
at 78-79.
{¶ 94} The majority simply ignores this controlling precedent. Instead, to
justify its holding that attorney speech may be restricted just because it is
disrespectful to a court, the majority reaches back to 1871 and suggests that what
is “most important[]” is dicta from a case dealing with judicial immunity. See
majority opinion at ¶ 26, quoting Bradley v. Fisher, 80 U.S. 335, 355, 20 L.Ed. 646(1871). What the majority neglects to mention is that in the 151 years since Bradley
was decided, the United States Supreme Court has never cited the Bradley dicta to
justify a restriction on attorney speech. Not once.
{¶ 95} To the contrary, the United States Supreme Court has explained that
“speech cannot be punished * * * ‘to protect the court as a mystical entity or the
judges as individuals or as anointed priests set apart from the community and spared
the criticism to which in a democracy other public servants are exposed.”
Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 842, 98 S.Ct. 1535, 56
L.Ed.2d 1 (1978), quoting Bridges v. California, 314 U.S. 252, 292, 62 S.Ct. 190,
86 L.Ed. 192 (1941) (Frankfurter, J., dissenting). Today, though, the majority holds
just the opposite. Speech about judges can now be punished merely because it is
disrespectful.
{¶ 96} Brazenly, the majority even cites Cohen v. California, 403 U.S. 15,
19, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971), to support the result that it reaches today.
See majority opinion at ¶ 23. Cohen, of course, is the seminal free-speech case in
which the United States Supreme Court held that California authorities could not
punish a man for wearing a jacket bearing the words “Fuck the Draft” in a county
courthouse. “One of the prerogatives of American citizenship,” the court
explained, “is the right to criticize public men and measures—and that means not
only informed and responsible criticism but the freedom to speak foolishly and
without moderation.” Id. at 26, quoting Baumgartner v. United States, 322 U.S.
34January Term, 2022
665, 673-674, 64 S.Ct. 1240, 88 L.Ed. 1525 (1944). Fair to say, the Cohen court’s
conception of the First Amendment is dramatically different than the one the
majority employs today.
When speech is punished because of its subject, the regulation is not content
neutral
{¶ 97} A particularly troubling aspect of the majority opinion is its rejection
of even the most basic principles of First Amendment jurisprudence. The majority
never even acknowledges that in holding an attorney may be disciplined for out-of-
courtroom speech simply because it is about a judge, it is imposing a content-based
restriction on speech. “Government regulation of speech is ‘content based’ if a law
applies to particular speech because of the topic discussed or the idea or message
expressed.” Reed v. Gilbert, 576 U.S. 155, 163, 135 S.Ct. 2218, 192 L.Ed.2d 236(2015). Here the regulation is specifically based on the “topic discussed” (the
courts), and thus, is inarguably content based.
{¶ 98} It would be one thing if the majority sanctioned Bahan simply for
her drunken, public outburst. Or if it said that her out-of-court conduct would be
equally sanctionable whether her tirade was directed at a judge, a minister, a barber,
a city councilperson, or a member of the public. In such a situation, the majority
could plausibly maintain that the regulation it is enforcing is content neutral. But
that’s not what it holds. It holds that her conduct is sanctionable for violating
Gov.Bar R. IV(2) precisely because it was directed at a judge. That’s not a content-
neutral regulation. And because it is not content neutral, it can pass constitutional
muster only if it survives strict scrutiny. Turner Broadcast Sys., Inc. v. Fed.
Communications Comm., 512 U.S. 622, 641, 114 S.Ct. 2445, 129 L.Ed.2d 497(1994). The majority cannot—and doesn’t even try—to make such a showing.
Indeed, the very existence of Prof.Cond.R. 8.2(a) demonstrates that there are less
restrictive means for the government to accomplish its legitimate interests here.
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{¶ 99} Equally disquieting is the fact that the majority continues to justify
its hyper-restrictive speech regulation on the need to “preserve public confidence
in the legal system,” majority opinion at ¶ 29; see also Morton, __ Ohio St.3d __,
2021-Ohio-4095, __ N.E.3d __, at ¶ 40 (O’Connor C.J., concurring) (“the integrity
of the court is an essential cog in the democratic system”). The United States
Supreme Court, however, has flatly rejected this rationale. As the Supreme Court
has explained, “injury to official reputation is an insufficient reason ‘for repressing
speech that would otherwise be free.’ ” Landmark Communications, Inc., 435 U.S.
at 841-842, 98 S.Ct. 1535, 56 L.Ed.2d 1, quoting Sullivan, 376 U.S. at 272-273, 84
S.Ct. 710, 11 L.Ed.2d 686. And “the institutional reputation of the courts is entitled
to no greater weight in the constitutional scales.” Id. at 842. Instead, “[t]he premise
of the First Amendment is that the American people are neither sheep nor fools,
and hence fully capable of considering both the substance of the speech presented
to them and its proximate and ultimate source.” McConnell v. Fed. Election
Comm., 540 U.S. 93, 258-259, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003) (Scalia, J.,
concurring in part and dissenting in part).
{¶ 100} Not only is the reputation-protecting speech restriction endorsed by
the majority today constitutionally infirm, the restriction is also counterproductive.
As the U.S. Supreme Court has cautioned:
The assumption that respect for the judiciary can be won by
shielding judges from published criticism wrongly appraises the
character of American public opinion. For it is a prized American
privilege to speak one’s mind, although not always with perfect
good taste, on all public institutions. And an enforced silence,
however limited, solely in the name of preserving the dignity of the
bench, would probably engender resentment, suspicion, and
contempt much more than it would enhance respect.
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January Term, 2022
(Footnote omitted.) Bridges, 314 U.S. at 270-271, 62 S.Ct. 190, 86 L.Ed. 192.
{¶ 101} The majority’s view is that the First Amendment only “may be
invoked as a defense for permissible criticism.” Majority opinion at ¶ 34. News
flash. That’s not the way the First Amendment works. The First Amendment
guarantees citizens permission to criticize their government; it doesn’t grant
government the right to decide what criticism is permissible.
{¶ 102} None of this is to defend Bahan’s conduct. By all accounts, her
behavior at the holiday party was boorish, unprofessional, and embarrassing to
herself and others. No doubt, regardless of any discipline that this court imposes,
behavior of this sort has its own consequences. It’s a fairly safe bet that Bahan’s
outburst did serious damage to her reputation among the lawyers and judges who
were in attendance—damage that one may assume will have financial
consequences to her and her practice. And there is a case to be made that
independent of the communicative aspects of her drunken tirade, Bahan could have
been disciplined for violating Prof.Cond.R. 8.4(h) (prohibiting a lawyer from
engaging in conduct that adversely reflects on the lawyer’s fitness to practice law).
But for whatever reason, the three-member panel of the Board of Professional
Conduct that heard Bahan’s case chose to dismiss those alleged violations, and we
cannot impose discipline on any charge that a panel has unanimously dismissed.
See Gov.Bar R. V(12)(G) (when a unanimous hearing panel finds that the evidence
is insufficient to support a charge or count of misconduct, the panel may order on
the record or in its report that the complaint or count be dismissed).
{¶ 103} The bottom line, though, is that it doesn’t matter what one thinks
of Bahan’s conduct. Under our own rules and established First Amendment
jurisprudence, the majority does not have the authority to discipline Bahan under
Gov.Bar R. IV(2) for her holiday-party outburst. It should have dismissed that
charge.
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The chilling effect of the majority’s opinion
{¶ 104} One might ask, “What’s the big deal?” Bahan’s behavior at the
holiday party was outlandish, so why does it matter if the majority stretches the
rules to discipline her?
{¶ 105} One obvious answer is that as judges, we are bound to apply the
law and to follow the Ohio and United States Constitutions. We hardly engender
respect for the rule of law if we ignore United States Supreme Court precedent and
overlook constitutional limitations on our authority when it comes to punishing our
critics.
{¶ 106} The other problem is that the majority’s opinion will almost
certainly have a chilling effect on legitimate attorney criticism of the judiciary. Just
over four months ago, this court issued its decision in Morton, __ Ohio St.3d __,
2021-Ohio-4095, __ N.E.3d __, and suspended an attorney from the practice of law
for criticizing this court in a court filing even though nothing that the attorney said
was shown to be untrue. Today, this court goes a step further and says that even
out-of-court speech is subject to punishment when it is disrespectful of the
judiciary.
{¶ 107} The majority attempts to hide from the broad rule it writes. It
suggests that because Bahan used “choice expletives” to describe Judge Goslee, its
opinion will not have a chilling effect on legitimate attorney speech. Majority
opinion at ¶ 33. Bahan’s conduct was certainly appalling. But the problem is that
rule that the majority writes isn’t cabined to situations like Bahan’s; it applies to
any criticism of the judiciary that is deemed disrespectful. The message to
attorneys is clear—criticize this court or any judge at your own peril. That message
may not have much impact on attorneys like Bahan, but it is likely to be heard
loudly and clearly by others who are more cautious. Why risk one’s livelihood by
getting anywhere close to the line of saying something about the judiciary that
someone might consider disrespectful?
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January Term, 2022
{¶ 108} “[S]peech critical of the exercise of the State’s power lies at the
very center of the First Amendment.” Gentile v. Nevada State Bar, 501 U.S. 1030,
1034, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1991). Our nation’s conception of free
speech is premised on the idea that citizens will serve as a check on public officials,
including judges. Indeed, “[t]he operations of the courts and the judicial conduct
of judges are matters of utmost public concern.” Landmark Communications, Inc.,
435 U.S. at 839, 98 S.Ct. 1535, 56 L.Ed.2d 1. But in establishing a rule that makes
“disrespectful” speech sanctionable, the majority removes from public debate even
legitimate attorney criticism of the judiciary.
{¶ 109} As I explained in Morton:
Stifling attorney criticism comes at a high cost. Attorneys,
by virtue of their education, training, and experience with the
judicial branch, are in the best position to “recognize, understand,
and articulate problems with the judiciary” and “to comment on the
judiciary and judicial qualifications.” Tarkington, The Truth Be
Damned: The First Amendment, Attorney Speech, and Judicial
Reputation, 97 Geo.L.J. 1567, 1601 [2009]. This is precisely the
information that the public needs “to make informed decisions about
the judiciary, to fulfill the self-governing role, and check judicial
abuses.” Id.Today’s decision will make attorneys hesitant to assert
opinions critical of the court. Not just attorneys like Morton whose
assertions some may consider outlandish, but also the more cautious
and the more insightful. By chilling attorney criticism of the
judiciary, we “forestall[] the public’s access to the thoughts of the
very class of people in daily contact with the judicial system” and
“shield the judiciary” from those best situated “to advance
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SUPREME COURT OF OHIO
knowledgeable criticism.” [State ex rel. Oklahoma Bar Assn. v.]
Porter, 766 P.2d [958,] 968 [(Okla.1988)].
(Second set of brackets added in Morton.) __ Ohio St.3d __, 2021-Ohio-4095, __
N.E.3d __, at ¶ 104-105 (DeWine, J., dissenting).
{¶ 110} Today, the majority follows up on Morton with yet another warning
to attorneys to watch what they say when it comes to talking about judges; when it
comes to speech directed at the judiciary, basic principles of free speech do not
apply. This is not good for self-government.
Conclusion
{¶ 111} In holding that attorneys are now subject to discipline under
Gov.Bar R. IV(2) for directing disrespectful speech at a judge, the majority cites
the oath that Ohio lawyers take to conduct themselves “with dignity and civility
and show respect towards judges.” Majority opinion at ¶ 28. But as judges, we
also take an oath. And by that oath, we promise “to support the constitution of the
United States and the constitution of this state.” R.C. 3.23. Hence, I cannot join
the majority in its holding that an attorney’s speech is subject to discipline under
Gov.Bar R. IV(2) simply because it is disrespectful to a member of the judiciary.
{¶ 112} Because I believe that Bahan’s violations of Prof.Cond.R. 8.4(h) by
themselves warrant the sanction imposed by the majority, I concur in its judgment.
But because I believe there is no basis to sanction Bahan under Gov.Bar R. IV(2),
I concur in judgment only.
KENNEDY, J., concurs in the foregoing opinion.
_________________
Briscoe Law Offices and Collen H. Briscoe; Dinsmore & Shohl, L.L.P., and
Nita Hanson; and Kent R. Markus, Bar Counsel, and Thomas E. Zani, Deputy Bar
Counsel, for relator.
The Steinhelfer Firm, L.L.C., and Tim Steinhelfer, for respondent.
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January Term, 2022
_________________
41