Disciplinary Counsel v. Gallo

2012 Ohio 758, 131 Ohio St. 3d 309, 2012 WL 676221
CourtOhio Supreme Court
DecidedFebruary 29, 2012
Docket2011-0756
StatusPublished
Cited by7 cases

This text of 2012 Ohio 758 (Disciplinary Counsel v. Gallo) 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
Disciplinary Counsel v. Gallo, 2012 Ohio 758, 131 Ohio St. 3d 309, 2012 WL 676221 (Ohio 2012).

Opinions

Per Curiam.

{¶ 1} Respondent, Nicholas Matthew Gallo of Cleveland, Ohio, Attorney Registration No. 0083226, was admitted to the practice of law in Ohio in 2008. On December 7, 2009, relator, disciplinary counsel, charged Gallo with professional misconduct based on allegations he had made against a judge in an affidavit and in a motion to strike the judge’s motion to intervene in a domestic-relations case. The Board of Commissioners on Grievances and Discipline found that Gallo had recklessly made false statements impugning the integrity of a judge and recommends that we publicly reprimand him for this misconduct.

{¶ 2} Gallo objects to the board’s findings of fact and conclusions of law, arguing that due to his inexperience, he made an innocent mistake in identifying a man standing outside the judge’s judicial suite as the judge himself and that he had had a good-faith basis for the allegations he made against the judge. Therefore, he urges the court to reject the board’s findings and dismiss the complaint against him.

{¶ 3} The record clearly and convincingly demonstrates that Gallo failed to take reasonable steps to verify that the person who he thought was staring at his client was in fact the judge he accused. Therefore, we adopt the board’s findings of fact and conclusions of law and publicly reprimand Gallo for his misconduct.

Misconduct

{¶ 4} In January 2009, Gallo was hired as an associate attorney at Stafford & Stafford Co., L.P.A., a small firm in Cleveland that handles mainly domestic-relations cases. On June 3, 2009, he stepped in to handle a pretrial conference representing Jeffery Rymers, whom the firm represented in a divorce proceeding pending in the Lake County Court of Common Pleas. At that time, Gallo had been practicing for only about six months, although he had been admitted to the bar for just over one year. He had never met Mr. Rymers, Mrs. Rymers, or [310]*310Mrs. Rymers’s attorney, and he had never been to the Lake County Courthouse. He was, however, aware that Mrs. Rymers was in a relationship with Lake County Common Pleas Court Judge Eugene Lucci.

{¶ 5} While Gallo waited in the hall outside the domestic-relations courtroom, which is just across the hall from Judge Lucci’s judicial suite, he saw a man repeatedly exit Judge Lucci’s judicial suite, look around the hall, and then reenter the judicial suite. When Mr. Rymers appeared, Gallo met him and walked down the hall with him to discuss the case. As they were talking, Mrs. Rymers’s counsel approached them and handed Gallo a copy of Judge Lucci’s motion to intervene in the Rymerses’ divorce proceeding. Gallo quickly read through the document and phoned his boss, Joseph Stafford, to determine how he should proceed. During that conversation, Gallo described the man he had seen in the hallway and Stafford told him that the description “soundfed] like Judge Lucci.” After ending the phone call, Gallo resumed talking to Mr. Rymers. Gallo’s back was to Judge Lucci’s judicial suite, and Mr. Rymer was facing him. At one point, Mr. Rymers told him that Judge Lucci was standing outside the judicial suite looking in their direction. Gallo turned around and saw that the same man he had seen earlier was staring in their direction.

{¶ 6} When Gallo returned to his office after the pretrial conference, he prepared a memorandum for his supervisors summarizing the events that occurred at the courthouse. Two weeks later, Gallo filed a response to Lucci’s motion to intervene and argued that intervention was prohibited by Civ.R. 75(B). He also argued that Lucci had violated Jud.Cond.R. 1.3 by “improperly using his position as presiding Judge to advance his own personal interests, by attempting to insert himself into an action in which he has no legitimate interest.” He further asserted that Lucci had violated Prof.Cond.R. 3.3 by (1) failing to cite in his motion to intervene controlling law (Civ.R. 75(B)) that Lucci knew was directly adverse to his intervening in the divorce proceeding and (2) “engaging] in a pattern of harassing and threatening conduct toward the Defendant, Jeffery G. Rymers, and Joseph G. Stafford; and hav[ing] intimated on numerous occasions these threats, based upon [Lucci’s] position as a presiding Judge in the Lake County Court of Common Pleas.”

{¶ 7} Gallo supported these allegations with affidavits from himself and Mr. Rymers attesting that on the day of the pretrial hearing, they had seen Judge Lucci standing in the hallway outside his judicial suite, staring at Mr. Rymers. Mr. Rymers further attested that he had felt intimidated and threatened by this conduct. Gallo also submitted an affidavit from Stafford addressing Judge Lucci’s allegation that Stafford’s representing Mr. Rymers was a conflict of interest because Lucci had consulted Stafford regarding his divorce. Gallo signed and filed the opposition brief on June 17, 2009. He resigned his position [311]*311at Stafford’s firm approximately one week later for reasons unrelated to the Rymers ease.

{¶ 8} Judge Lucci filed a grievance with relator, stating that he had been falsely accused of abusing his office and that he had not been in the hallway while Gallo and Mr. Rymers were at the courthouse. He alleged that he had “witnesses and irrefutable, conclusive evidentiary proof’ that the allegations in Gallo’s and Mr. Rymers’s affidavits were not true. Gallo stood by his allegations until relator filed a formal complaint and assistant disciplinary counsel advised him that she had obtained video recordings of the activity in the Lake County Courthouse from June 3, 2009. After reviewing the video recordings, Gallo moved to withdraw his affidavit, stating that the video revealed that the person he had believed to be Judge Lucci was not, in fact, the judge, but rather the judge’s bailiff.

{¶ 9} At the disciplinary hearing, the panel heard testimony from Mr. and Mrs. Rymers, Judge Lucci and his bailiff, Stafford, Gallo, and others. The panel also viewed portions of the video recordings from all four cameras that record activity in the pertinent hallway of the Lake County Courthouse. The evidence revealed that Judge Lucci had not been in the hallway during the time in question and that the man whom Gallo and Rymers had seen in the hallway was the judge’s bailiff.

{¶ 10} Gallo testified that while he was standing approximately 70 feet away from the door to Judge Lucci’s judicial suite talking to Mr. Rymers, he saw the man whom he then believed to be Lucci standing outside the judicial suite staring at him and Mr. Rymers. He stated that Rymers appeared very uncomfortable— his face turned bright red and he started shuffling his feet. Gallo admitted that he had never asked Mr.- Rymers whether he had met Judge Lucci and that other than the information he had obtained from Rymers and Stafford, the only effort he had made to determine the identity of the man he had observed in the hall was to view Judge Lucci’s picture on the Internet. He stated that he believed the picture to be consistent with the man he had observed in the courthouse that morning.

{¶ 11} The board found that Gallo had not knowingly made false statements and that he had been under considerable pressure from his employer when he filed the documents containing the accusations. However, it concluded that his conduct was not blameless. Rather, the board found that Gallo had acted recklessly by failing to independently verify the identity of the man he had observed in the hallway before raising such serious allegations against Judge Lucci. Based upon these findings, the board concluded that Gallo had violated Prof.Cond.R.

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Bluebook (online)
2012 Ohio 758, 131 Ohio St. 3d 309, 2012 WL 676221, Counsel Stack Legal Research, https://law.counselstack.com/opinion/disciplinary-counsel-v-gallo-ohio-2012.