Summary
stating that attorney who explained that he could not prevail on motions filed but did so to ruin his wife filed a suit merely to harass another individual
Summary of this case from In re SmithOpinion
No. 96-2810
Submitted May 20, 1997 —
Decided October 1, 1997.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Supreme Court, No. 95-39.
On January 31, 1994, respondent, Walton Halleck Donnell of Woodville, Ohio, Attorney Registration No. 0020371, and his wife entered into an agreed dissolution of their marriage under which respondent's wife was granted custody of their three minor children. In the fall of 1994, respondent, acting as his own counsel, filed three motions with respect to this agreement that were heard by Sandusky County Common Pleas Court Judge Margaret K. Weaver: a motion by respondent for a restraining order to prevent his nine-year-old daughter from flying to Florida to visit her grandmother was heard on August 31, 1994; a motion for change of custody was heard on September 19, 1994; and a motion for visitation rights was heard on October 31, 1994.
On June 28, 1995, relator, Office of Disciplinary Counsel, filed an amended complaint charging respondent with violating several Disciplinary Rules in connection with the hearings on these motions. After respondent filed his answer, a panel of the Board of Commissioners on Grievances and Discipline of the Supreme Court ("board") heard the matter on April 19, 1996.
The panel found that although respondent was told that his daughter was already in Florida before the August 31, 1994 hearing, he refused to dismiss the motion and proceeded with the hearing. The panel further found that respondent had stated that although he knew he could not prevail on the motions, he brought them to ruin his former wife financially. The panel concluded that respondent's actions thereby violated DR 7-102(A)(1) (filing a suit or taking other action merely to harass or injure another). The panel also found that respondent had persistently contacted his ex-wife while the motions were pending, and concluded that he thereby violated DR 7-104(A)(1) (an attorney is prohibited from contacting an adverse party represented by counsel).
The panel found, on the basis of the testimony of Judge Weaver and respondent's own admission, that he was not objective in handling his own case, and concluded that respondent thereby violated DR 6-101(A)(1) (a lawyer shall not handle a legal matter which he knows or should know he is not competent to handle without associating himself with a lawyer who is competent to handle it). The panel also found that during cross-examination at the hearings, respondent asked questions about drug use and pedophilia that were not relevant to the issues before the court. The panel concluded that respondent thus violated DR 7-106(C)(2) (asking a question which the lawyer has no reason to believe is relevant and is intended to degrade a witness or other person). On numerous occasions during the hearings, and despite admonishments by the judge, respondent without testifying asserted his personal knowledge of the facts. The panel concluded that respondent thereby violated DR 7-106(C)(3) (prohibition against asserting personal knowledge of the facts at issue if not testifying). The panel further found that during the hearings, respondent constantly argued with and interrupted the judge and showed little or no respect for witnesses, and concluded that he thereby violated DR 7-106(C)(6) (engaging in conduct which is discourteous or degrading to a tribunal). Finally, the panel found that respondent habitually violated the rules of procedure by giving the court orders, cross-examining his own witnesses, arguing with witnesses, and attempting to call opposing counsel as a witness. The panel concluded that respondent thus violated DR 7-106(C)(7) (failing to follow established rules of procedure).
In mitigation the panel noted that respondent was seventy-one years old, earned only $8,000 from his law practice in 1995, and otherwise lived on Social Security, and that his hostility toward his former wife and her boyfriend was sometimes justified. The panel recommended that respondent be suspended from the practice of law for one year with the last six months of the suspension stayed, during which year respondent would be on probation. On review, the board dismissed the findings and conclusions of the panel with respect to DR 6-101 and 7-102. The board further recommended that respondent be suspended for one year, with the entire year stayed, and that he be placed on probation for that year.
J. Warren Bettis, Interim Disciplinary Counsel, and Lori J. Brown, Assistant Disciplinary Counsel, for relator.
Walton H. Donnell, pro se.
We adopt the findings and conclusions of the board, and hold that by his conduct in the various hearings, respondent violated DR 7-104(A)(1) and 7-106(C)(2), (3), (6), and (7). We do not find that respondent acted incompetently or that his actions were merely for harassment purposes. However, we do find that respondent's actions exceeded the bounds of zealous advocacy. As the board aptly noted, "This case is yet another textbook example of why an attorney should not represent himself."
In Bar Assn. of Greater Cleveland v. Milano (1984), 9 Ohio St.3d 86, 88, 8 OBR 315, 317, 459 N.E.2d 496, 498, we quoted from EC 7-36: "`Judicial hearings ought to be conducted through dignified and orderly procedures designed to protect the rights of all parties. Although a lawyer has the duty to represent his client zealously, he should not engage in any conduct that offends the dignity and decorum of proceedings.'" Even in a situation where an attorney represents himself he must follow the Code of Professional Responsibility and show proper respect for the court.
We hereby suspend respondent from the practice of law for six months. Costs taxed to respondent.
Judgment accordingly.
DOUGLAS, ACTING C.J., SHAW, TYACK, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG STRATTON, JJ., concur.
STEPHEN R. SHAW, J., of the Third Appellate District, sitting for MOYER, C.J.
G. GARY TYACK, J., of the Tenth Appellate District, sitting for RESNICK, J.