Disciplinary Counsel v. O'Diam

Citation2022 Ohio 1370
Decision Date28 April 2022
Docket Number2021-0971
CourtUnited States State Supreme Court of Ohio
PartiesDisciplinary Counsel v. O'Diam.

Submitted November 9, 2021

On Certified Report by the Board of Professional Conduct of the Supreme Court, No. 2021-006.

Joseph M. Caligiuri, Disciplinary Counsel, and Lia J. Meehan Assistant Disciplinary Counsel, for relator.

Kegler, Brown, Hill & Ritter and Christopher J. Weber for respondent.

PER CURIAM

{¶ 1} Respondent, Thomas Mark O'Diam, of Xenia Ohio, Attorney Registration No. 0029455, was admitted to the practice of law in Ohio in 1985. He was appointed judge of the Greene County Probate Court in 2013 and has twice been elected to retain that position.

{¶ 2} In a March 29, 2021 complaint, relator, disciplinary counsel, alleged that O'Diam violated a single rule of the Code of Judicial Conduct by engaging in the undignified and discourteous treatment of a beneficiary in a pending estate case after the beneficiary commented publicly about O'Diam's policy of permitting his daughter to practice law in his court.

{¶ 3} The parties entered into stipulations of fact and misconduct, and both parties asked that O'Diam be publicly reprimanded for his misconduct. After a hearing, a three-member panel of the Board of Professional Conduct found that O'Diam's conduct violated Jud.Cond.R. 2.8(B) (requiring a judge to be patient, dignified, and courteous to litigants, witnesses, and others with whom the judge deals in an official capacity and to require similar conduct of lawyers and others who are subject to the judge's direction and control). Based upon O'Diam's misconduct, the aggravating and mitigating factors present in this case, and the sanctions imposed for comparable misconduct, the panel recommended that we impose a six-month conditionally stayed suspension.

{¶ 4} The board adopted the panel's findings of fact and conclusions of law but recommended that O'Diam be required to serve an actual six-month suspension, that he be immediately suspended from judicial office without pay for the duration of that suspension, and that certain conditions be placed on his reinstatement to the practice of law.

{¶ 5} O'Diam objects to the board's findings regarding the applicable aggravating and mitigating factors and to its recommended sanction and contends that the appropriate sanction for his misconduct is a public reprimand.

{¶ 6} After a thorough review of the record, we adopt the board's findings of misconduct. For the reasons that follow, we overrule O'Diam's objections to the aggravating and mitigating factors found by the board. However, we sustain O'Diam's objection to the recommended sanction in part and adopt the panel's recommended sanction of a six-month conditionally stayed suspension.

The Board's Findings of Fact

{¶ 7} From 1985 to 2013, O'Diam practiced estate-planning, trust, and probate law as a majority shareholder of O'Diam, Stecker & Sove Law Group, Inc. His daughter, Brittany O'Diam, joined the firm after she was admitted to the practice of law in 2010. Following O'Diam's appointment to the bench, his former law firm reorganized. The shareholders of the firm entered into a redemption agreement to purchase O'Diam's shares in the firm and made regular payments to him until March 2021. Brittany remained at the firm and became a shareholder.

{¶ 8} In January 2018, Carolee Buccalo ("Carolee") died. Her granddaughter, who was named as executor in Carolee's will, retained Brittany to represent her in the estate's administration. In May 2018, Brittany filed an application to probate the will in Greene County. Brittany also filed seven waivers of disqualification signed by the beneficiaries of the estate-including three signed by Carolee's son Grant David Buccalo ("Buccalo") in his personal capacity, as a trustee, and as a guardian for one of his brothers. Those waivers disclosed O'Diam's familial relationship to Brittany and his position as a former shareholder and creditor of Brittany's law firm, and they stated that those circumstances may disqualify O'Diam from presiding over the case in which an attorney from his former firm represented the executor. They also acknowledged that while those circumstances might lead someone to question O'Diam's impartiality, the signatories trusted that O'Diam would act impartially and fairly.

{¶ 9} On May 26, 2019, Buccalo attended a public meeting of the Greene County Board of Commissioners and expressed his belief that O'Diam should recuse himself from cases in which O'Diam's family members represent parties. He further stated, "Justice depends on the appearance as well as the reality of fairness in all things. Otherwise, it erodes public confidence in the legal system." Buccalo added that when people leave the courtroom, they need to feel that they "got a fair shake" and that the system "wasn't rigged." Buccalo spoke for approximately two and a half minutes on this issue and stated that he merely wanted to ensure that the commissioners were aware of O'Diam's practice. He did not specifically mention his mother's estate, nor did he express any concern regarding his own involvement with O'Diam, though he stated that he planned to file a grievance with relator before he moved on to an unrelated topic.[1] The commissioners did not comment on those concerns.

{¶ 10} O'Diam's chief deputy clerk informed the judge of Buccalo's statements to the commissioners, and O'Diam obtained a video recording of that commissioners' meeting. He also spoke with Brittany, scheduled a status conference in Carolee's estate case, and ordered the executor and the three local beneficiaries, including Buccalo, to appear. The scheduling order cautioned, "Failure to attend this Status Conference will be deemed contempt of court." O'Diam discussed the purpose of the status conference with Brittany, but he did not share that information with Buccalo or inform him that he would be called to testify under oath.

O'Diam's Questioning of Buccalo

{¶ 11} On June 6, 2019, O'Diam presided over the status conference. O'Diam thanked the beneficiaries "for showing up on such short notice," explained that a "very disturbing incident [had] taken place with the estate," and stated that he needed to get it resolved that day. He then played the recording of Buccalo's comments at the commissioners' meeting.

{¶ 12} After the recording was played, O'Diam called Buccalo to the stand, placed him under oath, and informed him that any false statements he made would constitute perjury. He then cross-examined Buccalo for nearly an hour on issues related to Buccalo's waiver of disqualification and comments to the commissioners. During that questioning, O'Diam presented six documents as exhibits, including Buccalo's waivers of disqualification, several estate documents, the minutes of the commissioners' meeting, and a copy of Jud.Cond.R. 2.11 (governing a judge's duty to disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned unless the parties and lawyers in the case have agreed on the record that the judge should not be disqualified).

{¶ 13} While questioning Buccalo, O'Diam confirmed that Buccalo had consulted independent legal counsel when he signed the waivers of disqualification. O'Diam told Buccalo to read the waiver of disqualification into the record and then asked him, "Is there anything in the second paragraph that you don't understand?"

{¶ 14} Buccalo became emotional as O'Diam continued to question him. He explained that he was "an emotional mess" when he signed the waiver of disqualification and stated that he did not read the document closely. O'Diam inquired, "[D]id anybody not ever advise you that before signing your name on a document, you should read it?" Buccalo answered, "[O]f course."

{¶ 15} When O'Diam asked Buccalo if he believed that the commissioners were "over" his court, Buccalo testified, "I think they have some influence. I might be wrong on that." O'Diam replied, "You are." He then asked Buccalo whether he had ever read the Ohio Constitution and the United States Constitution and whether he was aware of the concept that the three branches of government are independent of each other.

{¶ 16} O'Diam also questioned Buccalo about how he was able to comment on the court and "trash" O'Diam to the commissioners, given that the topic did not pertain to any item on the commissioners' meeting agenda. Buccalo explained that he had contacted the commissioners' office before the meeting and was told that they would give him time to speak on the issue. O'Diam responded, "So the board of commissioners knew what the topic was going to be * * * even though they're well aware that they have nothing to do on the authority of a court." O'Diam further stated, "So this-this topic that you spoke on had nothing to do with any prior event between the court and the board of commissioners. It was a public forum in which you could go make your argument without my knowledge, without me being there. Seems to me it was basically a free shot." Buccalo replied, "Oh, no. I didn't look at it that way," and O'Diam replied, "I do."

{¶ 17} O'Diam told Buccalo that he and the commissioners had had a "run-in" before and that they "almost went to blows" over the commissioners' attempt to interfere with the administration of his court. He then stated, "I would have thought that they would have known the second you started talking about something like that, they would have shut you down," before informing Buccalo, "I will take care of that myself because I'm going to address the commissioners." In response to Buccalo's statement that the commissioners had changed their rules on public comment because people would "demagogue" them O'Diam replied, "Isn't...

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