Ohio State Bar Assn. v. Evans

2013 Ohio 4992, 999 N.E.2d 674, 137 Ohio St. 3d 441
CourtOhio Supreme Court
DecidedNovember 19, 2013
Docket2013-0231
StatusPublished
Cited by4 cases

This text of 2013 Ohio 4992 (Ohio State Bar Assn. v. Evans) 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
Ohio State Bar Assn. v. Evans, 2013 Ohio 4992, 999 N.E.2d 674, 137 Ohio St. 3d 441 (Ohio 2013).

Opinions

Per Curiam.

{¶ 1} Respondent, Judge David Dean Evans of Gallipolis, Ohio, Attorney Registration No. 0002043, was admitted to the practice of law in Ohio in 1972. He currently serves as judge of the general and domestic-relations divisions of the Court of Common Pleas of Gallia County. Relator, Ohio State Bar Association, charged Judge Evans with professional misconduct for failing to disqualify himself from a case in which the judge had an admitted conflict with defense counsel.

{¶ 2} The parties submitted a consent-to-discipline agreement recommending that Judge Evans be publicly reprimanded. The Board of Commissioners on Grievances and Discipline rejected the agreement and remanded the matter for further proceedings before a three-member panel of the board. On remand, the parties waived a hearing, submitted stipulations of fact and misconduct, and jointly recommended a stayed six-month suspension. The panel, and later the board, adopted the parties’ stipulations and recommended sanction. No objections have been filed.

{¶ 3} While “we ordinarily accept the panel’s and board’s conclusions as to the propriety of an attorney’s conduct or the appropriate sanction, and to that extent, our decisions reflect deference to their expertise,” as the ultimate arbiter of misconduct and sanctions in disciplinary cases, we remain free to exercise our independent judgment. Disciplinary Counsel v. Kelly, 121 Ohio St.3d 39, 2009-Ohio-317, 901 N.E.2d 798, ¶ 11. Given the judge’s serious ethical violations and the significant harm caused by his misconduct, we impose a fully stayed one-year suspension.

Misconduct

{¶ 4} The Gallia County public-defender commission, through a separate public-defender corporation, employed Robert W. Bright to represent indigent [442]*442criminal defendants in the Gallia County Common Pleas Court. As the only judge of the general division of that court, Judge Evans presided over all felony cases in which Bright was appointed counsel.

{¶ 5} In the matter that led to this disciplinary proceeding, Bright represented a defendant who had initially agreed to enter into a plea agreement but during the plea hearing had decided against it. Moments later, the defendant changed his mind again, but at that point, Judge Evans refused to accept the plea. Judge Evans again refused to accept the plea agreement three days later when Bright and the county prosecutor jointly requested that the judge allow a plea change.

{¶ 6} Bright thereafter filed an 18-page motion requesting that Judge Evans accept the plea agreement and characterizing the judge’s refusal to do so as “an abuse of discretion” and “unreasonable and/or arbitrary and/or unconscionable.” Although irrelevant to the pending matter, Bright also criticized, at length, some of Judge Evans’s other courtroom practices, such as the judge’s alleged use of a “drop-dead date” for pleas. Judge Evans later described Bright’s motion as “scathing” and showing Bright’s “bias toward and contempt for the court,” and he sent a copy of the motion to disciplinary counsel.

{¶ 7} Judge Evans also issued an entry overruling Bright’s motion and sua sponte removing Bright as counsel in the matter. The entry stated:

The Court finds that while Defense Counsel’s attitude toward the Court as expressed in the instant motion may not rise to the level of Professional Misconduct or to the level of being contemptuous, it certainly is not acceptable behavior. By such conduct he has created conflict with the Court whereby in this case or for that matter any other case in the future, when he does not agree with a decision or ruling by the Court, instead of being critical by accusation of being arbitrary, unreasonable, unconscionable or of abusing discretion, he simply may accuse the court of being bias [sic] or prejudice [sic] as it relates to him. The Court must not only avoid any impropriety, bias or prejudice but must avoid any appearance of such. The expressions and attitudes of Defense Counsel as exhibited and announced in the instant motion toward this Court compromises [sic] the Court’s ability to avoid any appearance of bias [or] prejudice, or to be fair and impartial as it relates to Defense Counsel regardless [of] how hard it tries or what strides it makes toward guaranteeing that there would be no bias, prejudice and that it would be fair and impartial.
The Court finds in this case due to the conflict Defense Counsel has created with this Court and to protect the rights of Defendant, that Defense Counsel, Robert W. Bright should be relieved of further responsi[443]*443bility for representation of Defendant and that substitute counsel should be appointed.

{¶ 8} Judge Evans next filed entries removing Bright as appointed counsel in 63 other criminal cases — even though none of the defendants in any case had requested Bright’s removal as their counsel. The entry in each case stated that “Attorney Robert W. Bright is relieved of further obligation due to the conflict he has created with the Court” and “due to the Court’s inquiry to the Office of Disciplinary Counsel, Supreme Court of Ohio regarding Mr. Bright’s conduct.”

{¶ 9} Judge Evans’s actions removed Bright’s entire caseload, and within a month of the judge’s entries, the Gallia County public defender terminated Bright’s employment, reasoning that it had “no other options,” since Bright could not practice in Judge Evans’s courtroom. Disciplinary counsel ultimately decided against filing any charges against Bright based on Judge Evans’s grievance.

{¶ 10} The parties stipulated, the board found, and we agree, that Judge Evans’s conduct violated Jud.Cond.R. 2.11 (requiring a judge to disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned, including circumstances in which a judge has a personal bias or prejudice concerning a party or a party’s counsel) and Gov.Bar R. V(11)(E) (requiring that all proceedings and documents relating to the review and investigation of grievances be private). Relator did not pursue Count III of its complaint, and the board recommends dismissal of that charge. Accordingly, Count III is hereby dismissed.

Sanction

{¶ 11} In determining the appropriate sanction for judicial misconduct, we consider the ethical duties violated, the injury caused, the existence of aggravating and mitigating circumstances listed in BCGD Proc.Reg. 10(B), and our precedent. Disciplinary Counsel v. Campbell, 126 Ohio St.3d 150, 2010-Ohio-3265, 931 N.E.2d 558, ¶ 53, citing Disciplinary Counsel v. Sargeant, 118 Ohio St.3d 322, 2008-Ohio-2330, 889 N.E.2d 96, ¶ 28, and Disciplinary Counsel v. Evans, 89 Ohio St.3d 497, 501, 733 N.E.2d 609 (2000).

1. Duties violated and injuries caused

{¶ 12} “It is of utmost importance that the public have confidence in the integrity and impartiality of the judiciary.” Disciplinary Counsel v. Allen, 79 Ohio St.3d 494, 495, 684 N.E.2d 31 (1997). For this reason, Jud.Cond.R.

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Related

Disciplinary Counsel v. Oldfield
2014 Ohio 2963 (Ohio Supreme Court, 2014)
Robert Bright v. Gallia Cnty., Ohio
753 F.3d 639 (Sixth Circuit, 2014)
Ohio State Bar Assn. v. Evans
2013 Ohio 4992 (Ohio Supreme Court, 2013)

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Bluebook (online)
2013 Ohio 4992, 999 N.E.2d 674, 137 Ohio St. 3d 441, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ohio-state-bar-assn-v-evans-ohio-2013.