Cleveland Bar Assn. v. Cleary

• Decision Date: 19 September 2001
• Docket Number: No. 01-412.,01-412.
• Citation: 93 Ohio St.3d 191,754 NE 2d 235
• Parties: CLEVELAND BAR ASSOCIATION v. CLEARY.
• Court: Ohio Supreme Court

93 Ohio St.3d 191

754 NE 2d 235

CLEVELAND BAR ASSOCIATION v. CLEARY.

No. 01-412.

Supreme Court of Ohio.

Submitted May 30, 2001.

Decided September 19, 2001.

Thomas P. Meaney, Jr. and Burt J. Fulton, for relator.

Jones, Day, Reavis & Pogue, Robert C. Weber, Robert P. Ducatman, Geoffrey J. Ritts, Tracy K. Stratford and Matthew A. Kairis, for respondent.

Christopher A. Ferrara, in support of respondent, for amicus curiae American Catholic Lawyers Association, Inc.

COOK, J.

The Board of Commissioners on Grievances and Discipline ("board") of the Supreme Court has filed a certified report recommending that this court sanction the respondent, Patricia A. Cleary, Attorney Registration No. 0024286, for acts of professional misconduct committed while Cleary was a sitting judge on the Cuyahoga County Court of Common Pleas. For the reasons that follow, we adopt the board's findings of fact and conclusions of law and suspend Cleary from the practice of law for six months.

I

In August 1998, twenty-one-year-old Yuriko Kawaguchi appeared before Cleary and entered a guilty plea to one count of fifth-degree felony forgery stemming from her use of a counterfeit credit card to purchase thousands of dollars worth of merchandise from Cleveland-area electronics stores. Kawaguchi, a California resident and Japanese citizen, had traveled to Cleveland with two companions as part of a scheme to purchase electronics equipment with counterfeit credit cards from several stores nationwide. In exchange for Kawaguchi's guilty plea and her agreement to testify against her co-conspirators, the state nolled the remaining counts of its indictment against her. The state had originally charged Kawaguchi with twenty-seven felony counts, including numerous theft counts and one count of engaging in a pattern of corrupt activity. Cleary accepted Kawaguchi's plea and scheduled the matter for sentencing at a later date.

About two weeks before her sentencing hearing, Kawaguchi wrote a letter to Judge Cleary from the Cuyahoga County Jail. In the letter, Kawaguchi revealed that she was pregnant, a fact she had learned two months after her arrest, and expressed a desire to obtain an abortion. In the letter, she begged Judge Cleary either to "grant me probation and let me go home to have the abortion or let me bond out to have the procedure done in Cleveland."

On October 6, 1998, Kawaguchi appeared at her sentencing hearing with her attorney, Anthony Vegh. In light of Kawaguchi's lack of a prior criminal record and Kawaguchi's compliance with the terms of her plea agreement, Vegh asked the court to "place her on probation and allow her to transfer that probation to California.¹ Neither Vegh nor Kawaguchi, who spoke on her own behalf, mentioned Kawaguchi's pregnancy. Following Kawaguchi's statement to the court, however, Judge Cleary steered the hearing to the subject of Kawaguchi's pregnancy and engaged in the following discussion with Kawaguchi and Vegh:

"THE COURT: And would you be placing your child—if I place you on probation, there's the problem of you serving probation here in the state of Ohio.

"You also represent a flight risk, too, on the west coast, and you are not an American citizen.

"Would you be placing your child up for adoption here in the state of Ohio or in California?

"THE DEFENDANT: At this time, I would be staying in the state of Ohio temporarily at a friend's house. I do hope that in the future I could go back and transfer back to California.

"THE COURT: With regard to your child, though, would you be placing your child or keeping your child?

"I think you indicated in some of your letters to me, when you discussed this subject, what you would be doing with your child.

"Would you be placing the child up for adoption here in Ohio?

"I'm trying to work out my time frame if I would place you on probation. "THE DEFENDANT: Well, honestly, your Honor, I'm pretty much fighting time right now.

"THE COURT: You are pretty much what?

"THE DEFENDANT: I'm fighting time right now. This was an unwanted pregnancy.

"THE COURT: I understand that, but it happened.

"THE DEFENDANT: Right. Right. And I have talked to the doctors, and I have talked to the social workers, and if I am released, I will be trying to have a procedure done.

"THE COURT: But if that doesn't happen, if you are sentenced to an institution, or if you [are] placed on a term of probation, and it's too late for you to have an abortion, what I am asking you is this: What are your plans in that regard?

"THE DEFENDANT: It would be in the state of Ohio.

"THE COURT: Would you be placing the child up for adoption here in this state or would you be trying to keep your child?

"THE DEFENDANT: I would be giving it up for adoption.

"THE COURT: All right. What I am going to do at this time, I'm sentencing you to the Ohio State Reformatory for Women at Marysville for six months, credit for time served, and costs are imposed in this case.

"If you want to tell me that you would like to serve a term of probation up here in Cuyahoga County and that you have got someplace to stay, and you can sign up for Welfare and receive Medicare and place your child, if you would rather work that out, I'll consider that as well.

"So why don't you discuss that with your lawyer and let me know what you want to do. You can go in the lockup.

"MR. VEGH: Your Honor, I want to understand what you are suggesting.

"THE COURT: I'm saying that she is not having a second term abortion.

"MR. VEGH: You are making that contingent upon—

"THE COURT: It's not contingent upon anything. It's based on all the factors before me as far as releasing her and as far as security.

"MR. VEGH: Your Honor, I don't think that's a valid term of—

"THE COURT: You are not in a position to criticize me.

"MR. VEGH: I'm not criticizing the Court. I'm objecting.

"THE COURT: Which has no bearing on this case.

"So go talk to your client or I'll assign another counsel. "MR. VEGH: I would like another counsel.

"THE COURT: You are removed from representation." (Emphasis added.)

After removing Vegh as counsel of record, Cleary summoned attorney Robert Steely, who was in the courtroom for a different matter, to step forward and represent Kawaguchi. Based on what had just transpired, both Vegh and Steely understood Cleary to be offering a sentencing "quid pro quo." That is, if Kawaguchi agreed to have her baby, Cleary would sentence her to probation; if, however, Kawaguchi insisted on pursuing an abortion, Cleary would sentence her to a six-month prison term. Steely confirmed his understanding of Judge Cleary's intent during off-the-record discussions with her. According to Steely, Cleary told him that she "cannot condone an abortion." Steely memorialized his understanding of the events at Kawaguchi's sentencing in a memorandum he prepared for his file about two days after the sentencing hearing.

The events of Kawaguchi's sentencing hearing came to the attention of attorneys with the Ohio chapter of the American Civil Liberties Union. Kawaguchi met with ACLU attorneys and agreed to have them represent her in efforts to secure her release from incarceration. On October 9, 1998, ACLU lawyers filed a motion in Cuyahoga County Common Pleas Court to stay execution of Kawaguchi's sentence so that Kawaguchi could be released from custody pending an appeal of her sentence. As the judge assigned to Kawaguchi's case, Cleary would have ordinarily heard the motion. See Loc.R. 15(B) of the Court of Common Pleas of Cuyahoga County, General Division. Cleary, however, was not in the courthouse on October 9, 1998, and the matter was therefore heard by Judge Lillian J. Greene, who was the acting administrative judge on that day.

Before hearing the motion, Judge Greene asked Assistant Prosecuting Attorney William Caine to contact Cleary's chambers and confirm Cleary's unavailability. Caine telephoned Cleary's bailiff, Margaret Mazzeo, and asked whether Cleary was available for "a matter of some urgency." Mazzeo informed Caine that Cleary was unavailable that day and could not be reached. Judge Greene then proceeded with a hearing on Kawaguchi's motion. After hearing the arguments of counsel, Judge Greene granted Kawaguchi's motion and journalized an entry setting appellate bond in the amount of $15,000.

On the afternoon of October 9, 1998, Mazzeo learned of Judge Greene's order and contacted Cleary by telephone. Cleary instructed Mazzeo to draft an order revoking Judge Greene's entry and to sign Cleary's name to it. Cleary had never before asked Mazzeo (or anyone else) to sign Cleary's name to any order. Mazzeo followed Cleary's instructions and filed an entry revoking the bond that Judge Greene had previously granted. The entry also set a new bond hearing for October 13, 1998. The bond hearing specified in Cleary's entry never took place. Before the scheduled hearing time, Cleary filed an entry denying Kawaguchi's motion for bond pending appeal. The entry stated that her decision was "based upon presentence report information indicating defendant is at risk of fleeing." In fact, the PSI contained no such information and instead suggested that Kawaguchi was a "good candidate" for probation. Kawaguchi immediately petitioned the Eighth District Court of Appeals for an order granting bond pending appeal. The court of appeals granted this motion and Kawaguchi was released from jail on the afternoon of October 13, 1998. Kawaguchi looked into obtaining an abortion in the days following her release, only to learn that her pregnancy was too far advanced for legal abortion in Ohio. Kawaguchi ultimately gave birth to a daughter in February 1999.

In January 1999, while Kawaguchi's appeal of her sentence was pending, Cleary accepted an invitation to speak in front of the congregation at the Church on the Rise in Westlake. Cleary devoted much of the speech to discussing the Kawaguchi case and her sentencing decision. Many of the details she...