Office of Disciplinary Counsel v. Gardner

• Decision Date: 13 August 2003
• Docket Number: No. 2002-1461.,2002-1461.
• Citation: 793 NE 2d 425,99 Ohio St.3d 416
• Court: Ohio Supreme Court
• Parties: OFFICE OF DISCIPLINARY COUNSEL v. GARDNER.

99 Ohio St.3d 416

2003-Ohio-4048

793 NE 2d 425

2003-Ohio-4048

OFFICE OF DISCIPLINARY COUNSEL v. GARDNER.

No. 2002-1461.

Supreme Court of Ohio.

Submitted January 8, 2003.

Decided August 13, 2003.

Jonathan E. Coughlan, Disciplinary Counsel, for relator.

James A. Vollins, for respondent.

Per Curiam.

{¶ 1} Respondent, Mark J. Gardner of Cleveland, Ohio, Attorney Registration No. 0061172, was admitted to the practice of law in Ohio in May 1993. On August 13, 2001, relator, Disciplinary Counsel, filed a complaint charging respondent with several violations of the Code of Professional Responsibility, including DR 7-106(C)(6) (engaging in undignified or discourteous conduct which is degrading to a tribunal) and 8-102(B) (knowingly making a false accusation about a judge). A panel of the Board of Commissioners on Grievances and Discipline heard the matter and, based on stipulations and respondent's testimony, made findings of fact and conclusions of law and recommended a sanction.

{¶ 2} The record establishes that in 2001, respondent appealed to the Court of Appeals for the Eighth District on behalf of a client convicted of driving under a court-ordered license suspension. Respondent challenged the conviction as a denial of due process, arguing that his client had not received sufficient notice of the crime with which he had been charged. Respondent essentially acknowledged that his client was guilty of driving in violation of a court order; however, he maintained that the police officer had mistakenly charged his client with driving in violation of Ohio's Financial Responsibility Act ("FRA"), a crime of which his client was not guilty. The court of appeals affirmed the conviction.¹

{¶ 3} In a motion seeking reconsideration or, in the alternative, certification of the case as a conflict to this court, respondent accused the panel that decided his client's appeal of being dishonest and ignoring well-established law. He declared that the panel had issued an opinion so "result driven" that "any fair-minded judge" would have been "ashamed to attach his/her name" to it. He then added that the panel did not give "a damn about how wrong, disingenuous, and biased its opinion is."

{¶ 4} Throughout the several pages that followed, respondent inveighed against the panel, contrasting it with "fair-minded Ohio appellate districts" and stating that "no matter how bad the panel wants to skew or ignore the facts," it could only conclude that his client had been improperly charged. He lamented that "honesty and truth were damned" in the panel's opinion and that the panel's "desire to be `tough on crime' had blinded it to basic law and fairness." Respondent then posed these questions: "Why does this panel only apply the law as a hammer to crush citizens and not as a shield to protect their basic rights?" and "Is having a prosecutorial bent so hard to let go of that truth must be cast aside to achieve a particular result?"

{¶ 5} Respondent went on to accuse the panel of having "distorted the truth" and having "manufactured a gross and malicious distortion." His discussion continued:

{¶ 6} "Wouldn't it be nice if this panel had the basic decency and honesty to write and acknowledge these simple unquestionable truths in its opinion? Would writing an opinion that actually reflected the truth be that hard? Must this panel's desire to achieve a particular result upholding a wrongful conviction of a man who was unquestionably guilty of an uncharged offense—necessarily justify its own corruption of the law and truth? Doesn't an oath to uphold and follow the law mean anything to this panel?

{¶ 7} "Is that claim that `We are a nation of laws, not men' have any meaning after reading the panel's decision? Can't this panel have the decency to actually address—rather than to ignore—the cases cited by the client which demonstrate beyond any doubt that he was convicted of an offense he was never charged with having violated?

{¶ 8} "In this case, beyond the ignored concepts of the law and truth, lies that of policy. As a policy matter, is this court really encouraging all officers in the Eighth District to charge a generic statute—or Chapter or Title—and not the particular offense they are accusing a citizen of violating? In the name of God, WHY? What is so difficult with a police officer doing his job in an intelligent manner? Why must this panel bend over backwards and ignore well established law just to encourage law officers to be slovenly and careless? In State v. Homan (2000), 89 Ohio St.3d 421 732 N.E.2d 952, didn't the Ohio Supreme Court just state that officers actually have to follow the rules strictly? Doesn't that mean anything to this panel?

{¶ 9} "Perhaps, if this panel is not strong enough to admit its obvious prosecutorial bias in its opinion, it will discover the internal fortitude to certify this matter to the Ohio Supreme Court under Rule IV of the Rules of Practice of the Supreme Court of Ohio."

{¶ 10} The board's panel found, consistent with the parties' stipulation, that respondent had violated DR 7-106(C)(6). The panel also found respondent in violation of DR 8-102(B) by clear and convincing evidence.

{¶ 11} In recommending a sanction, the panel considered that respondent had no previous record of discipline and had apologized for the manner in which he expressed his frustration about the affirmance of his client's conviction. Respondent also recognized during the hearing that his response to the court of appeals' opinion was neither appropriate nor professional. However, while respondent professed to understand the need to challenge judicial decisions only in an appropriate manner, he confirmed his continued belief that the court of appeals during his client's appeal had skewed and ignored the facts, disregarded honesty and truth, and violated their oaths to decide cases fairly and impartially.

{¶ 12} The panel recommended the sanction suggested by the parties—that respondent be publicly reprimanded for the cited misconduct. The board adopted the findings that respondent violated DR 7-106(C)(6) and 8-102(B), but rejected the panel's sanction. The board recommended, based on his "outrageous behavior toward a tribunal," that respondent be suspended from the practice of law for a period of six months, with all six months stayed on the condition that he commit no further violations of the Disciplinary Rules.

{¶ 13} In objections to the board's finding that he violated DR 8-102(B) and its recommendation, respondent argues that his accusations are federally protected free speech because they are opinions and thus immune from disciplinary measures in the same way that mere opinions are not actionable in defamation. He also argues that even if his attacks were capable of being proved true or false, relator nevertheless failed to prove that respondent knowingly made "false" accusations for the purpose of DR 8-102(B). We review these arguments to determine whether respondent's statements, which specifically accuse the appellate court panel of prosecutorial bias and corrupting the law in order to sustain an unlawful conviction, may be disciplined as professional misconduct.

The First Amendment

{¶ 14} The United States Supreme Court has held that "it is unquestionable that in the courtroom itself, during a judicial proceeding, whatever right to `free speech' an attorney has is extremely circumscribed. * * * Even outside the courtroom, a majority of the Court in two separate opinions in the case of In re Sawyer, 360 U.S. 622 79 S.Ct. 1376, 3 L.Ed.2d 1473 (1959), observed that lawyers in pending cases were subject to ethical restrictions on speech to which an ordinary citizen would not be." Gentile v. Nevada State Bar (1991), 501 U.S. 1030, 1071, 111 S.Ct. 2720, 115 L.Ed.2d 888. See, also, In re Disciplinary Action Against Garaas (N.D.2002), 652 N.W.2d 918, 925. An attorney's speech may be sanctioned if it is highly likely to obstruct or prejudice the administration of justice. Gentile at 1075, 111 S.Ct. 2720, 115 L.Ed.2d 888. These narrow restrictions are justified by the integral role that attorneys play in the judicial system, which requires them to refrain from speech or conduct that may obstruct the fair administration of justice. Id. at 1074, 111 S.Ct. 2720, 115 L.Ed.2d 888.

{¶ 15} Thus, attorneys may not invoke the federal constitutional right of free speech to immunize themselves from even-handed discipline for proven unethical conduct. In re Sawyer (1959), 360 U.S. 622, 646, 79 S.Ct. 1376, 3 L.Ed.2d 1473 (Stewart, J., concurring in result). The First Amendment does not shield an attorney from discipline for falsely suggesting "unseemly complicity" by the judiciary in unlawful or unethical practices. Id. at 633, 79 S.Ct. 1376, 3 L.Ed.2d 1473. Such false statements, whether by attorneys or others, enjoy no constitutional protection when they are made with knowledge of their falsity or reckless disregard for their truth. Garrison v. Louisiana (1964), 379 U.S. 64, 75, 85 S.Ct. 209, 13 L.Ed.2d 125. Although neither Sawyer nor in In re Snyder (1985), 472 U.S. 634, 105 S.Ct. 2874, 86 L.Ed.2d 504, definitively so held, all of the justices who participated in those decisions assumed or stated that a lawyer's false accusations of criminal conduct directed against named judges could be the basis for discipline. In re Palmisano (C.A.7, 1995), 70 F.3d 483, 487. "Even a statement cast in the form of an opinion (`I think that Judge X is dishonest') implies a factual basis, and the lack of support for that implied factual assertion may be a proper basis for a penalty." Id. at 487, citing Milkovich v. Lorain Journal Co. (1990), 497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1. While Milkovich is a defamation case not involving attorney discipline, it demonstrates that the First Amendment does not protect any individual who knowingly makes false statements or expresses opinions that imply false statements of fact. In re Complaint...