Findlay/Hancock County Bar Ass'n v. Filkins

734 N.E.2d 764, 90 Ohio St. 3d 1
CourtOhio Supreme Court
DecidedSeptember 6, 2000
DocketNo. 99-2233
StatusPublished
Cited by14 cases

This text of 734 N.E.2d 764 (Findlay/Hancock County Bar Ass'n v. Filkins) 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
Findlay/Hancock County Bar Ass'n v. Filkins, 734 N.E.2d 764, 90 Ohio St. 3d 1 (Ohio 2000).

Opinion

Lundberg Stratton, J.

“In disciplinary proceedings, the relator bears the burden of proving the facts necessary to establish a violation. The complaint must allege the specific misconduct that violates the Disciplinary Rules and relator must prove such misconduct by clear and convincing evidence.” (Emphasis added.) Ohio State Bar Assn. v. Reid (1999), 85 Ohio St.3d 327, 708 N.E.2d 193, at paragraph two of the syllabus. While the Board of Commissioners on Grievances and Discipline makes recommendations to this court, it is this court that renders the final determination of the facts and conclusions of law in disciplinary proceedings. Id. at paragraph one of the syllabus.

This is a difficult case to decide because it relies solely on the credibility of the witnesses for proof. Upon independent review of all the evidence in this case, we agree with the board that there is insufficient evidence to prove (1) that respondent violated DR 7-102(A)(3) and (5) (he lied or concealed information), and (2) that respondent violated DR 7-102(A)(4) and (8) (he used signals to influence his client’s testimony). However, contrary to the board’s findings, we find that relator did not prove by clear and convincing evidence that (1) respondent violated DR 7-102(A)(6) and (7) (he instructed his client to lie) or (2) that respondent violated DR 4 — 101(B)(2) (he used client confidences to the disadvantage of the client).

We find that there is evidence in the record that undermines the credibility of Traci Mackey’s testimony. In addition, we find that there is no evidence to [4]*4corroborate her testimony, while there are multiple credible witnesses whose testimony supports respondent. We do not lightly disregard the findings of the panel. They are conscientious and dedicated individuals who had an opportunity to see and hear the witnesses and to judge their credibility. However, we also recognize that we must make the final determination using the clear-and-convincing-evidence standard.

DR Y — 102(A)(6) and (7)

The board found that respondent violated DR 7 — 102(A)(6) and (7) when' he instructed Traci Mackey not to disclose relevant and truthful information in an effort to prevail in the Chontay custody motion. DR 7-102(A)(6) and (7) state that an attorney shall not “[participate in the creation or preservation of evidence when he knows * * * that the evidence is false” and shall not “[cjounsel * * * his client in conduct that the lawyer knows to be * * * fraudulent.”

a. Summary of Relator’s Evidence

In her testimony before the panel, Traci Mackey alleged that in 1992, just prior to the psychological evaluation ordered in the Chontay custody case, she disclosed to respondent that she, Chontay, and Aaron had been abused by her husband, Russell Crow. The allegations included sexual abuse of Traci Mackey and Chontay and physical abuse of Traci Mackey, Chontay, and Aaron, including attacks against Traci Mackey with a knife and a chair. She alleged that Russell Crow’s abuse was documented in written police reports.

Traci Mackey testified that she disclosed the abuse allegations to respondent at his office and her home. She testified that she discussed the abuse with respondent “many times.” “Usually they [the conversations] took place over the phone and then I would go see him.” Traci Mackey admitted that she did not have a driver’s license but claimed that friends drove her to respondent’s office on those occasions when she went to discuss Russell Crow’s abusive nature.

Despite the alleged disclosure of Russell Crow’s abuse to respondent, Traci Mackey alleged that respondent instructed her to lie to the doctor and tell him that Russell Crow was a “wonderful father, that he had a wonderful relationship with the kids.”

Finally, Traci Mackey testified that she also described Russell Crow’s abusive nature to Robroy Crow, the attorney who represented her in her divorce from Russell Crow.

b. Summary of Respondent’s Evidence

In support of respondent, Russell Crow, Traci Mackey’s ex-husband, testified that respondent never instructed him or Traci Mackey to lie to the doctor [5]*5conducting the psychiatric evaluation. In fact, Russell Crow testified that respondent instructed him and Traci Mackey “to be honest with the doctor, tell him the truth.” Russell Crow also testified that respondent never came to their (Russell and Traci Crow’s) house for a meeting. He also testified that he was the only person to drive Traci to respondent’s office because she had no friends in the area to give her rides to respondent’s office.

Respondent testified on his own behalf. Respondent stated that Traci Mackey “never” indicated to him that Russell Crow was abusive. He also testified that he never counseled Traci Mackey to lie in the psychological evaluation.' Respondent testified that he never met with Traci Mackey alone before the divorce action. Finally, he testified that 'he had never met Traci Mackey at her residence.

Robroy Crow testified that contrary to Traci Mackey’s assertion, she never disclosed to him that Russell Crow had abused her. He also testified that had he been aware of any abuse, he would have attempted to introduce it in the divorce case.

c. Analysis

Traci Mackey’s testimony is the sole evidence in support of the DR 7-102(A)(6) and (7) violations. The board found that “[h]er testimony was too detailed and specific not to be found to be credible.” However, we find that the record reveals information that we believe erodes the credibility of her testimony. This, in conjunction with the testimony of three witnesses that directly contradicts Traci Mackey’s testimony, leads us to determine that the evidence is not clear and convincing that respondent violated DR 7-Í02(A)(6) or (7).

Traci Mackey admitted to the panel that she lied to the examining psychologist in the Chontay custody case about Russell Crow’s alleged abuse, even though she knew that a lie would keep Chontay with this allegedly abusive man. Relator’s counsel asked Traci Mackey, “did you, in fact, lie in those psychological evaluations?” She answered, “Yes.”

Traci Mackey also admitted to the panel that she had lied under oath in a court of law. Specifically, a member of the panel posed the following question: “The signals, were those signals ever intended for you to lie on the witness stand?” She answered, “I did lie.”

Traci Mackey admitted that she lied on several other occasions. She admitted that she lied to her husband about an affair that she was having with Dwayne Mackey. It is apparent from the record that she lied to Deborah Mackey, Dwayne Mackey’s wife, about her affair with Dwayne Mackey. In fact, Traci Mackey persuaded Deborah Mackey to let her move in with Deborah and Dwayne, claiming that Russell Crow had assaulted her, even though Traci [6]*6Mackey had been having an affair for several months with Deborah Mackey’s husband. She engaged in further deception by having Deborah Mackey baby-sit her children while she and Deborah Mackey’s husband would go to a motel and engage in sex.

Traci Mackey’s admission of the aforementioned lies erodes her credibility with regard to her allegations against respondent. The lies she admitted to in her divorce case were of a particularly deceptive nature.

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Cite This Page — Counsel Stack

Bluebook (online)
734 N.E.2d 764, 90 Ohio St. 3d 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/findlayhancock-county-bar-assn-v-filkins-ohio-2000.