There are risks lawyers take when they chance even the gentlest of criticisms of a judge. For a recent example, remember Paul Ogden, the lawyer facing a one-year suspension for a private email criticizing a judge.
And then yesterday, there was a judicial misconduct case decided in Ohio. It involved Judge David Dean Evans who serves in the Court of Common Pleas of Gallia County, Ohio. The case is Ohio State Bar Assn. v. Evans.
The state bar charged Judge Evans with judicial misconduct for not recusing himself from a case where there was an admitted conflict with appointed defense counsel, a lawyer by the name of Robert W. Bright. The rule requires a judge to disqualify himself from any proceeding where his impartiality might reasonably be questioned, including in circumstances where a judge has a personal bias or prejudice against a party or that party’s counsel.
Here’s what happened. While representing an indigent defendant, Bright’s client initially agreed to take a plea deal. But he later changed his mind during the plea hearing. Shortly thereafter, Bright’s client rethought his rejection and decided again to take the deal. But by then, it was too late. The judge had wearied of all the indecision and refused to accept the plea.
And apparently, he was still miffed when three days later — even after the county prosecutor and Bright jointly asked the judge to allow the plea change, Judge Evans still said, ‘no.’
“The only cure for contempt is counter-contempt.” – H. L. Mencken
By then, though, Bright had also had enough. He filed an 18-page motion asking for reconsideration while at the same time criticizing the judge’s “abuse of discretion” and his refusal to accept the plea agreement as “unreasonable and/or arbitrary and/or unconscionable.” Bright also threw in a few other criticisms about the judge’s courtroom practices.
Well, no surprise, Judge Evans didn’t take kindly to the motion and referred to it as “scathing” and demonstrative of Bright’s “bias toward and contempt for the court.” Not only did he deny the motion, but Judge Evans also ‘dropped a dime’ on Bright with the office of bar counsel referring the matter for possible attorney discipline. And for good measure, the thoughtful jurist sent along a copy of Bright’s motion.
But here is also where the good judge got himself in trouble. He relieved Bright from further representation not only of the waffling defendant but “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.”
By publicly disclosing the bar complaint against Bright, the judge ran afoul of a bar rule requiring all proceedings and related documents in such grievances to be held private.
Bad things in threes.
And giving further credence to the saying that bad things happen in threes, after losing his entire caseload — a month later, Bright was fired by the county public defender. So he not only lost all his cases — but his job — and his right to privacy concerning the bar complaint.
And that’s not to mention Bright’s 63 clients who had their lawyer shot out of the saddle by the offended jurist.
The bottom line? There’s no mention about whether or not Bright got his job back. Or if any of his 63 clients were prejudiced by his sudden removal. But at least the bar complaint was dropped.
As for what happened to Judge Evans, I am however, pleased to report we do know what happened. Overruling the Board of Commissioners on Grievance and Discipline who had recommended a stayed six-month suspension, the Ohio Supreme Court ordered “a stayed one-year suspension [from the practice of law in Ohio] because ‘a sanction more rigorous than the board’s recommendation is required for the harm caused by respondent’s improprieties.’”
Sounds fitting — but alas, only on paper. The sanction is stayed. In other words, there’s no actual suspension. It’s on hold — deferred — abeyed — on ice — conditioned on Judge Evans not committing any misconduct during the one-year suspension period. If he doesn’t meet that condition, then the stay is lifted and the one-year suspension is imposed. Meanwhile, the beat goes on.
The pointy end.
Lastly, as an insult-to-injury footnote, one Ohio Supreme Court Justice dissented in the belief that Judge Evans had “a reasonable reaction to the problem he confronted.” As a matter of fact, he thought the consent-to-discipline agreement with the stayed six-month suspension that had already been agreed to by the bar and Judge Evans was just fine.
After all, he further opined, Judge Evans is an elected official and the county’s sole judge. So if anyone should fall on their sword and be conflicted out, “it is more sensible for the attorney to give way than the judge.” Bright, after all, is just a terminable at-will working stiff — no matter if he’s “highly skilled.”
But from my vantage point, implicit in that dissenter’s collegial mind, is the belief that the preferable [or the better] man is Judge Evans. When all is said and done, it’s ‘power-to-the-people’ or so he means when he writes, “the elected judge should supersede the at-will employee.”
Photo Credits: “Pa Only Touched the High Places, by Jan Tik at Flickr via Creative Commons-license requiring attribution;”Ouch,” by jeremyfoo at Flickr via Creative Commons-license requiring attribution.