Cincinnati Bar Ass'n v. Lukey

851 N.E.2d 493, 110 Ohio St. 3d 128
CourtOhio Supreme Court
DecidedAugust 9, 2006
DocketNo. 2006-0079
StatusPublished
Cited by3 cases

This text of 851 N.E.2d 493 (Cincinnati Bar Ass'n v. Lukey) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cincinnati Bar Ass'n v. Lukey, 851 N.E.2d 493, 110 Ohio St. 3d 128 (Ohio 2006).

Opinion

Per Curiam.

{¶ 1} Respondent, Paul E. Lukey of Cincinnati, Ohio, Attorney Registration No. 0000965, was admitted to the practice of law in Ohio in 1975.

{¶ 2} On February 7, 2005, relator, Cincinnati Bar Association, charged respondent with professional misconduct. A panel of the Board of Commissioners on Grievances and Discipline heard the cause, considered the parties’ exhibits and comprehensive stipulations, and made findings of fact, conclusions of law, and a recommendation. The board adopted the panel’s findings of misconduct, but increased the recommended sanction.

Misconduct

{¶ 3} Respondent, a sole practitioner since 1977, practices mainly domestic-relations and juvenile law. During the summer of 2004, a married couple retained respondent to represent them in anticipated custody/dependency proceedings involving their 13-year-old grandson, whom they had adopted years before. The charges of misconduct against respondent arose because respondent acted as the grandson’s attorney during juvenile court proceedings, despite the fact that the boy was already represented by a public defender. At the same time, the respondent represented the boy’s grandparents relative to the dependency proceedings.

{¶ 4} Authorities in Hamilton County initiated the dependency proceedings because the grandparents, in an attempt to keep the grandson out of trouble after he was charged with two counts of aggravated arson, had locked him in the basement while they were at work. On July 28, 2004, the boy was placed in protective custody because of suspicions that he was being mistreated.

{¶ 5} The grandson had been charged with aggravated arson because he had set fire to two paper towels in a school bathroom, albeit without causing any injuries or property damage. On July 7, 2004, Soumyhait Dutta, a public defender assigned to represent the grandson, entered denials on the boy’s behalf. Dutta also represented the grandson on July 15, 2004, when the court continued the trial in the case until August 12, 2004.

{¶ 6} Respondent appeared with his clients at their grandson’s August 12 trial; however, he did not confine himself to representing their interests. Without having investigated the case or having previously spoken to the boy, respondent acted as the grandson’s counsel and negotiated a plea agreement with the [130]*130prosecutor in the case. The prosecutor agreed to dismiss the first-degree felony aggravated-arson charge in exchange for the grandson’s admission to a second-degree felony charge of aggravated arson.

{¶ 7} Shortly after these negotiations (which took place before the case was called), a public defender appeared, at Dutta’s request, to defend the grandson. The prosecutor introduced respondent as the boy’s private attorney, and when respondent confirmed this representation, the public defender left. Respondent and the prosecutor then presented the negotiated plea agreement to the magistrate, and respondent again represented that he was the grandson’s lawyer. The magistrate consequently substituted respondent for the public defender as counsel of record.

{¶ 8} Respondent sat with the grandson at counsel’s table during the proceedings on August 12. After the prosecutor’s brief statement of the case against the grandson, respondent allowed the boy to admit committing aggravated arson, a second-degree felony. Respondent then offered only this statement in mitigation: “[The] grandparents have done what they can to control him, but they’re maybe a little older and they both have to work. And it’s really a difficult situation at home. The grandparents had tried to do the best they can.”

{¶ 9} During the August 12 proceedings, the magistrate inquired of a Hamilton County Job and Family Services caseworker about that agency’s interest in the case. The caseworker failed to report that the boy had been removed from his grandparents’ home because of mistreatment, and respondent, who should have realized the mistake, said nothing. His silence concealed from the court the grandparents’ and their grandson’s conflicting interests and deterred the magistrate from appointing a guardian ad litem.

{¶ 10} At the end of the August 12 hearing, the magistrate set the cause for a final disposition on August 26, 2004, pending completion of a probation report, and she ordered that the boy be held in detention until that date. The magistrate ordered detention without knowing the substantial mitigating factors that respondent, as the boy’s attorney, should have presented — that the grandson was polite and cooperative, played orchestral harp, displayed no antisocial or criminal behaviors, regretted burning the paper towels at school, had waited for the fire to burn out before he left the bathroom, and had never meant to harm anyone.

{¶ 11} Another magistrate conducted the hearing on August 26, 2004. After reviewing the probation report, which recommended that the grandson be placed on nonreporting probation due to his minimal risk factors, the magistrate asked respondent to speak on the boy’s behalf. Respondent began by referring to his clients’ inability to control their grandson, and the magistrate stopped him to clarify whom he represented. Respondent advised that he represented the [131]*131grandparents, although he also admitted that he had counseled their grandson in entering his guilty plea. Respondent explained to the magistrate that he did not consider his advice to the grandson to be representation because the boy had already admitted guilt. At the panel hearing, respondent asserted that he had taken on the grandson’s case to help his clients, without realizing the conflicting interests.

{¶ 12} Respondent’s revelation caused the magistrate to remove respondent as counsel of record and to reinstate the public defender. The court later appointed a guardian ad litem to represent the grandson’s interests and granted the public defender’s motion to set aside the boy’s admission. The public defender eventually negotiated a plea to a lesser offense, and the grandson was placed in the temporary custody of his paternal grandmother. The dependency proceedings were later dismissed, and the grandson eventually returned to live with his maternal grandparents. The magistrates presiding over the grandson’s case and the court’s chief magistrate reported respondent’s improprieties to relator.

{¶ 13} Respondent admitted and the board found that in failing to disclose his dual representation to the court and purporting to represent the grandson while pursuing the grandparents’ interests, he had violated DR 1-102(A)(4) (prohibiting conduct involving fraud, deceit, dishonesty, or misrepresentation). Respondent also admitted and the board found that he had violated DR 1-102(A)(5) (prohibiting conduct that is prejudicial to the administration of justice) because the dual representation deprived the grandson of competent, independent counsel. Respondent admitted and the board found that respondent’s representation of clients with conflicting interests violated DR 5-105(B) (prohibiting, with limited exceptions, a lawyer from continuing to represent multiple clients where the lawyer’s independent judgment on behalf of any client is likely to be adversely affected). Respondent admitted and the board found a violation of DR 7-101(A)(3) (prohibiting a lawyer from causing a client damage or prejudice) because his failure to provide available mitigation evidence resulted in the grandson’s extended detention. The board further found a violation of DR 7-106(B)(2) (requiring a lawyer to disclose the identity of his clients to a tribunal).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Disciplinary Counsel v. Harmon (Slip Opinion)
2019 Ohio 4171 (Ohio Supreme Court, 2019)
Toledo Bar Assn. v. Miller
2012 Ohio 1880 (Ohio Supreme Court, 2012)
Cincinnati Bar Ass'n v. Lukey
874 N.E.2d 528 (Ohio Supreme Court, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
851 N.E.2d 493, 110 Ohio St. 3d 128, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cincinnati-bar-assn-v-lukey-ohio-2006.