Mahoning County Bar Ass'n v. Franko

• Decision Date: 28 May 1958
• Docket Number: No. 3,3
• Parties: , 5 O.O.2d 282 MAHONING COUNTY BAR ASSOCIATION v. FRANKO. D. D.
• Court: Ohio Supreme Court

Page 17

168 Ohio St. 17

151 N.E.2d 17, 5 O.O.2d 282

MAHONING COUNTY BAR ASSOCIATION v. FRANKO.

D. D. No. 3.

Supreme Court of Ohio.

Decided May 28, 1958.

Syllabus by the Court.

1. The Supreme Court of Ohio has inherent exclusive jurisdiction over the admission to the practice of law in Ohio. Rule XIV, Rules of Practice of the Supreme Court of Ohio.

2. The legal profession of Ohio includes every person who has been admitted to the practice of law in this state, by and under the rules for admittance thereto as adopted by the Supreme Court of Ohio, whose name is maintained on the Roll of Attorneys kept by such court, regardless of the subsequent capacity or status of such person.

3. The Supreme Court of Ohio has inherent jurisdiction over proceedings relating to the disciplining of members of the legal profession of this state, resulting from the Supreme Court's organization as such as well as from its inherent exclusive power of admission, and it may provide by rule both the basis for and the procedure to be followed with reference to such disciplining. Paragraph one of the syllabus of In re Thatcher, 80 Ohio St. 492, 89 N.E. 39, and Cleveland Bar Association v. Pleasant, 167 Ohio St. 325, 148 N.E.2d 493, approved and followed.

4. Rule XXVII of the Rules of Practice of the Supreme Court of Ohio provides a comprehensive procedure to activate the inherent duty and to implement the inherent power of that court to supervise the disciplining of members of the legal profession of Ohio.

5. Judges who are required by statute to be attorneys at law must necessarily maintain their status as members of the legal profession, and the Supreme Court of Ohio, by virtue of its inherent power with reference to the disciplining of members of such profession, may provide by rule the basis for and the procedure to be followed in the disciplining of such members who hold judicial positions.

6. The Canons of Judicial Ethics, as adopted by and made a rule of the Supreme Court of Ohio, provide a basis for the disciplining of members of the legal profession who hold judicial positions, and a breach thereof subjects such a member of the legal profession to disciplinary action according to the procedure set out in Rule XXVII of such court.

7. A member of the legal profession who is a judge is subject to disciplinary action when he becomes a candidate for a nonjudicial office and does not resign his judicial position, thereby committing a breach of that part of Canon 30 of the Canons of Judicial Ethics, as adopted by this court, which provides that 'if a judge should decide to become a candidate for any office not judicial he should resign in order that it cannot be said that he is using the power or prestige of his judicial position to promote his own candidacy or the success of his party.'

On Certified Report by the Board of Commissioners on Grievances and Discipline.

This is a disciplinary proceeding arising under and by virtue of Rules XXVII and XXVIII of the Rules of Practice of the Supreme Court of Ohio (see statement of facts in Cleveland Bar Association v. Pleasant, 167 Ohio St. 325, 148 N.E.2d 493, regarding the reason for and purpose of Rule XXVII), wherein the respondent, Judge Frank R. Franko, is alleged to be subject to discipline by virtue of his breach of one or more of the Canons of Judicial Ethics duly adopted by this court and made a part of Rule XXVIII in 1954.

Upon complaint being made according to the procedure outlined in Rule XXVII, a panel of three commissioners was appointed by the Chairman of the Board of Commissioners on Grievances and Discipline, pursuant to the provisions of Rule XXVII, Section 10, and a hearing was had during which the relator, the Mahoning County Bar Association, and the respondent presented evidence.

Subsequent to such hearing, it was the finding of the board of commissioners that the respondent was guilty of a violation of the Canons of Judicial Ethics adopted by this court, and that discipline is merited. It is the board's recommendation that respondent be suspended.

To this report and recommendation respondent duly filed his objections, pursuant to the provisions of Rule XXVII, Section 17, and a hearing was had before this court.

Further facts will be stated hereinafter.

John H. Ranz and William E. Pfau, Jr., Youngstown, for relator.

Green, Schiavoni & Anderson, Youngstown, and Gorman, Davis & Hengelbrok, Cincinnati, for respondent.

MATTHIAS, Judge.

Respondent's objections to the report and recommendation of the Board of Commissioners on Grievances and Discipline raise essentially three issues for our determination:

I. Whether this court has jurisdiction to discipline an attorney who is a judge for acts committed in his judicial capacity which are in violation of the Canons of Judicial Ethics adopted by and made a rule of this court prior to the commission of such acts.

II. Whether the facts in the instant case justify a finding that such Canons of Judicial Ethics have been violated.

III. Whether the measure of discipline recommended by the board of commissioners is commensurate with such violation or violations, if such are found to exist.

Respondent also questions the constitutionality of Rule XXVII of the Supreme Court of Ohio, on the grounds that 'it violates due process in that it does not guarantee * * * [him] a hearing before this court,' that 'it is at variance with statutory procedure,' and that 'it deprives the Court of Common Pleas and Court of Appeals jurisdiction over disbarment proceedings, which jurisdiction is vested in said courts by the General Assembly.'

With respect to 'due process,' the fact that respondent had a hearing before this court precludes him from questioning the constitutionality of a rule which has not operated unconstitutionally upon him. In this respect, the law applied by this court to statutes applies with equal force to the rule of court here under consideration. That law is set out in the first and second paragraphs of the syllabus of State ex rel. Herbert v. Ferguson, 142 Ohio St. 496, 52 N.E.2d 980.

The latter two contentions with respect to constitutionality were argued extensively, considered, and rejected by this court in Cleveland Bar Association v. Pleasant, supra, 167 Ohio St. 325, 148 N.E.2d 493.

In considering the first of the abovestated issues to be determined herein, our research has disclosed many instances wherein courts throughout the nation have dealt, or attempted to deal, with alleged misconduct of judges. The results of such actions have been diversified and varied. See Annotation, 53 A.L.R.2d 305, and the cases cited therein. Our research has failed, however, to disclose any instance wherein the highest appellate court of any state has dealt directly with the question at hand in a setting such as we have in Ohio, that is, where such court has provided by rule a comprehensive procedure to activate its inherent duty and to implement its inherent power with respect to supervising the disciplining of all members of the legal profession in the state.

In this respect, however, see In re Copland, 66 Ohio App. 304, 33 N.E.2d 857, 859, wherein the Court of Appeals for Cuyahoga County sustained the disbarment by the Common Pleas Court of Cuyahoga County of one David Copland, who, at the time of the action, was a judge of the Municipal Court. Copland was charged with writing and causing to be published in a legal journal an opinion in a fictitious cause purporting to have been heard and decided by him, and with the giving of false answers concerning his background and education in a campaign questionnaire sent him by the Cleveland Bar Association.

Copland readily admitted both charges but argued that the acts stated therein did not subject him to discipline since they were not committed 'in office,' that is, as an attorney at law, but were acts committed in his capacity as Judge of the Municipal Court. However, in sustaining the judgment of disbarment rendered by the Common Pleas Court on the above facts, the Court of Appeals said:

'We perceive no special sanctity which should surround the unofficial acts of a judge. It is not the personal habits of a judge that are complained of with respect to his judgeship, but his act done as a member of the bar under color of his other office which he holds for the time being.' (Emphasis added.)

Thus, even though Copland's acts were found to have been committed outside his capacity as a judge, the disbarment of a judge for ethical reasons is not entirely new to the state, although it is new to this court.

In considering the jurisdiction of this court to discipline an attorney who is a judge for acts committed in his judicial capacity and which are in violation of the Canons of Judicial Ethics adopted by and made a rule of this court, we must keep in mind the basic facts and premises upon which our conclusion will rest 1. 'The Supreme Court of Ohio has inherent jurisdiction of proceedings to disbar an attorney, resulting as an incident of its organization as a court, as well as from its power to admit to the bar.' Paragraph one of the syllabus of In re Thatcher, 80 Ohio St. 492, 89 N.E. 39. 'The Supreme Court of Ohio has inherent power as to the disciplining of attorneys admitted to practice in this state and may provide by rule the procedure with reference to such disciplining.' Paragraph one of the syllabus of Cleveland Bar Association v. Pleasant, supra.

2. In 1952, the Supreme Court of Ohio adopted the Canons of Professional Ethics which it declared 'shall be binding upon all members admitted to practice law in the state of Ohio, and the wilful breach thereof shall be punished by reprimand, by suspension or by disbarment.' See Rule XXVIII, Rules of Practice of the Supreme Court of Ohio.

3. In 1954, the Supreme Court of Ohio amended and adopted the Canons of Judicial Ethics which it also declared 'shall be binding upon all members admitted to practice law...