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Disciplinary Counsel v. O'Neill9/7/2004
Corzine, Judge Parrot and former Judge Tracey. Moreover, the Smiley case was not a pending case and the conversation did not involve the merits of the case. Absolutely no one was prejudiced by these conversations and they do not fall within the realm of sanctionable conversations. That portion of Count I relating to ex parte communications is without merit and must be dismissed.
{ } "Count II alleges that Respondent refused to allow attorneys to go on the record. In 1998, the local rules of the Franklin County Common Pleas Court did not require pretrials to be on the record. The allegation that Attorney Swartz was denied the opportunity to go on the record during a pretrial was readily admitted by Respondent in her letter to the Chief Justice on September 10, 1998. (Ex. ON 01507) Respondent explained to the Chief Justice that she, 'denied Mr. Swartz' request to put the bench conference on the record as I did not find it necessary to record my denial of his request for a continuance.' This denial was not even found to be sufficient for the granting of an Affidavit of Disqualification by the Chief Justice, much less a disciplinary violation. In both Dennis and Lane the allegations of failure to allow a record occurred in pretrial settings. Both Judge Parrot and former Judge and now Professor Tracey testified that the preferred method of making a record is not to disrupt the schedule in order to make a record whenever one is demanded, but to wait until such time as there is an actual court hearing. In fact, Attorney Swartz testified that a written motion would have been the proper way to make a record for the motion for continuance. The allegations in Count II have not been established by clear and convincing evidence and must be dismissed.
{ } "Count III consists of allegations that Respondent denied continuances without exercising judicial discretion. The granting or denial of requests for continuance should not be the subject of disciplinary actions. The law adequately provides recourse to the parties in these situations.
{ } "Count IV relates to alleged misrepresentations Respondent made in her interactions with lawyers, judges and court personnel. While there is certainly variation in the recollection of parties to the same incidents, it must be remembered that these incidents occurred years ago and it is common for people to have different perceptions of an incident after the passage of time. The panel report takes great umbrage to the fact that Respondent denied the allegations against her and her recollection of incidents was often times different from those of other witnesses. This does not mean that Respondent was necessarily lying or being deceitful. It means that she had a different perception of certain encounters. In addition, her answer to the complaint seems to contain responses in conflict with her own testimony at hearing. The panel was made aware that the answer was prepared prior to any formal discovery and that Respondent answered the complaint utilizing her best recollection at the time. Those familiar with legal proceedings are quite aware that recollection can be refreshed once the witness is afforded an opportunity to review documents relative to an incident. This is especially true when the incident occurred years prior. The finding of a violation for merely denying the allegations and having a different perception of what transpired from that of her accusers is totally unfair. In addition, it is not difficult to find that a number of witnesses who testified as to Count IV had their own agendas which compromised their credibility. Once again, the burden of clear and convincing evidence has not been met in these allegations.
{ } "While Disciplinary
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