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Disciplinary Counsel v. O'Neill9/7/2004
(a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation); and DR 1-102(A)(5) (a lawyer shall not engage in conduct that is prejudicial to the administration of justice).
Count II
{ } Count II alleged that respondent refused to allow attorneys to go on the record to preserve their objections to respondent's rulings. Upon review of the board's factual findings on Count II, we agree that the evidence presented to establish the violations of the Code of Judicial Conduct and the Disciplinary Rules charged in that count was not clear and convincing.
Count III
{ } Upon review of the board's factual findings for Count III, we agree that relator has not proven by clear and convincing evidence that respondent violated the Code of Judicial Conduct or the Disciplinary Rules by denying continuances. Granting or denying a request for a continuance is within the " 'broad, sound discretion of the trial judge.' " State v. Ahmed, 103 Ohio St.3d 27, 2004-Ohio-4190, 813 N.E.2d 637, 44, quoting State v. Jones (2001), 91 Ohio St.3d 335, 342, 744 N.E.2d 1163. "The need for a principled approach to determining the limits of judicial power or discretion is important because of the danger of compromising judicial independence through the random or arbitrary application of ethical norms." Shaman, Lubet & Alfini, Judicial Conduct and Ethics (3 Ed.2000) 35, Section 2.01. Even an abuse of discretion is not necessarily tantamount to a violation of the Code of Judicial Conduct. See, e.g., W. Virginia Judicial Inquiry Comm. v. Dostert (.1980), 165 W.Va. 233, 271 S.E.2d 427, 433; Oberholzer v. Comm. on Judicial Performance (1999), 20 Cal.4th 371, 398, 84 Cal.Rptr.2d 466, 975 P.2d 663.
Count IV
{ } In Count IV, the evidence established that respondent engaged in a pattern of misrepresentation in her interactions with judges, litigants, attorneys, and court personnel. In two cases during the pertinent period, respondent misrepresented to common pleas court judges that actions had either occurred or not occurred during court proceedings. In the first of these cases, which the board determined to be "the most troublesome" of the incidents, respondent misrepresented in a memorandum to the administrative judge, which she distributed to all of the common pleas court judges, that she had ruled on a petition for an emergency protective order, that she had found that the petitioner had not met her burden of proof, that she had advised the petitioner that she would grant the protection order if the petitioner could not obtain one from the municipal court, and that the petitioner's nonattorney advocate had not answered her questions. In the second case, respondent falsely advised other judges at a meeting that she had never denied anyone the opportunity to make a record, although she had done so on at least two occasions.
{ } In a third case, respondent told a criminal defendant and her counsel during sentencing that they had not timely appeared for trial at 9:00 a.m. and that respondent had appeared before 9:00 a.m. But court parking garage records proved that respondent had not arrived until 9:30 a.m. that day.
{ } Moreover, in one remaining case, respondent misrepresented to court personnel that a court reporter was leaving work early without respondent's permission.
{ } As the board concluded, these multiple misrepresentations, when considered with the additional misrepresentations found to violate DR 1-102(A)(4) in Counts I and V, represent "the most serious charges" against respondent. Respondent's continued denials of this misconduct were contradicted by the evidence, and the board properly
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