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Disciplinary Counsel v. O'Neill9/7/2004
nette taking and not taking down their words is not excused or diminished by the "circular" justification that a record can be postponed until a case is called. As long as Reulbach insisted on recording the victim's absence, Judge O'Neill was not going to call the case. The fact that the standoff was resolved does not diminish the impropriety and the prejudicial appearance of such actions in open court. Since Respondent's practice at that time prohibited proffers without her permission her denial of a record to Dennis and Lane could not be solved by those means.
123. The panel majority finds by clear and convincing evidence that Judge O'Neill misrepresented her actions in Dennis and Lane. In her Answer regarding Lane Respondent placed the blame on the lack of a record on her court reporter Grego who "refused to take a proffer.". This directly contradicted Grego's testimony that Grego could not take a proffer without Judge O'Neill's permission and Grego's actions in the courtroom in response to Respondent's orders. Respondent's false statements to Grego regarding a claim by Reulbach are covered in Count 4, below, in this Panel Report. In Dennis, a letter to the Supreme Court in 1998 Judge O'Neill admitted she refused Shwartz a record. In her answer and in testimony herein she adamantly denied that she refused to allow Shwartz to make a record. Both statements cannot be true, one is clearly a misrepresentation, either to the Supreme Court or to this Panel.
124. As to Crutcher, Foster and Triplett, the panel finds that the Relator did not prove by clear and convincing evidence that Respondent denied the litigants a record. While it was clear that Wesiman was frustrated by the postponement of his motion hearings and sought assistance from the court's administrative judges, it is not clear that creating a record of his efforts to hold the hearings was the real issue. It was not clear that in these circumstances there was a ruling or decision to record rather than rescheduling a hearing on a pending motion.
125. The panel does not find a violation of Canon 3(E)(1) or DR 1-102(A)(4) in Count 2.
126. COUNT 3 alleged that Respondent denied requests for Continuances without exercising her judicial discretion.
127. FIFTH THIRD BANK V. MARGOLIS: Testimony taken from James Leickly (defendant's counsel)(Transcript Vol. VIII -- 115-159), Michael M. Schaeffer, (plaintiff's counsel)(Transcript Vol. VIII -- 168-189), Judge O'Neill (Transcript Vol. X -- 264-297, XI -- 67-69)
128. This civil case involved the collection on cognovit notes with allegations that the Margolises had made fraudulent conveyances. There were contested issues involving the valuation of the property allegedly fraudulently conveyed by the Margolises. Michael Schaeffer (admitted 1975, private practice commercial litigation) represented Fifth Bank and James Leickly (admitted 1986, private practice, commercial litigation) represented the Margolises.
129. Judge O'Neill scheduled the case for trial on March 10, 1997. Parties and counsel appeared and were ready to proceed on that date, however, Judge O'Neill was involved in a criminal trial. The parties were kept on standby for 3 days and then released and told that they would receive a new trial date. Counsel were not consulted about their availability for a rescheduled date. (Transcript Vol. VIII -- 119-120)
130. The Court sent notice dated March 14, 1997 that the trial was reset for April 22, 1997. Leickly sent the notice to his clients who promptly told him that April 22 was the first day of Passover and their religious practice would not allow them to attend. On March 24, 1997 Leickly filed a Motion for Continu
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