In re Disqualification of Gaul , 2015 Ohio 3929 ( 2015 )

[Cite as In re Disqualification of Gaul, 2015-Ohio-3929.]
IN RE DISQUALIFICATION OF GAUL.
STATE v. EVANS.
[Cite as In re Disqualification of Gaul, ___ Ohio St.3d ___, 2015-Ohio-3929.]
Judges—Affidavits of disqualification—R.C. 2701.03—Affiant lacks standing—
Disqualification denied.
(No. 15-AP-046—Decided June 9, 2015.)
ON AFFIDAVIT OF DISQUALIFICATION in Cuyahoga Court of Common Pleas Case
No. CR-15-593828-A.
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O’CONNOR, C.J.
{¶ 1} Attorney Michael Wolpert has filed an affidavit with the clerk of this
court under R.C. 2701.03 seeking to disqualify Judge Daniel Gaul from presiding
over any further proceedings in case No. CR-15-593828-A in the Cuyahoga
County Court of Common Pleas.
{¶ 2} Wolpert filed the affidavit after Judge Gaul issued entries removing
Wolpert as defendant’s attorney in the underlying case, appointing the public
defender’s office to represent defendant, and barring Wolpert from appearing in
his courtroom until Wolpert “clearly demonstrates to the Court that he is receiving
effective Mental Health Services.”
{¶ 3} Judge Gaul has responded in writing to the affidavit, explaining that
due to a series of recent events, he has concluded that Wolpert is currently unfit to
practice law and unable to provide effective assistance to his clients. Therefore,
the judge barred Wolpert from appearing in his courtroom.
{¶ 4} The Code of Judicial Conduct, however, sets forth the appropriate
channels through which a judge may initiate corrective action regarding an
attorney who the judge believes has a mental impairment or is unfit to practice
SUPREME COURT OF OHIO
law. Specifically, Jud.Cond.R. 2.14(A) provides that if a judge reasonably
believes that the performance of a lawyer is impaired “by a mental, emotional, or
physical condition,” the judge “shall take appropriate action, which may include a
confidential referral to a lawyer or judicial assistance program.” Similarly,
Jud.Cond.R. 2.15(B) provides that if a judge knows that a lawyer has committed a
violation of the Ohio Rules of Professional Conduct that raises a question
regarding the lawyer’s “honesty, trustworthiness, or fitness as a lawyer in other
respects,” the judge “shall inform” the appropriate disciplinary authority. Barring
an attorney from practicing in a judge’s courtroom is not an appropriate substitute
for either referring the attorney to an assistance program or initiating the bar-
complaint process.
{¶ 5} Moreover, a trial court’s blanket ban on an attorney’s practicing
before the court generally violates this court’s exclusive jurisdiction over
attorney-disciplinary matters. See Ohio Constitution, Article IV, Section
2(B)(1)(g); Melling v. Stralka, 12 Ohio St. 3d 105, 465 N.E.2d 857 (1984). “To
permit each of the trial and appellate courts to establish rules that generally limit
the ability of attorneys to practice their profession, or that impose specific
disciplinary standards upon the attorneys of this state, certainly would frustrate
the purpose behind the Supreme Court’s constitutionally authorized governance
of the bar.” Id. at 107; see also State ex rel. Buck v. Maloney, 102 Ohio St. 3d 250,
2004-Ohio-2590, 809 N.E.2d 20, ¶ 11 (a probate court judge lacks authority to bar
an attorney from practicing law in all future cases before the probate court);
Catholic Social Servs. of Cuyahoga Cty. v. Howard, 106 Ohio App. 3d 615, 620,
666 N.E.2d 658 (8th Dist.1995) (a trial court’s order barring an attorney from
practicing law before the court “conflicts with the exclusive power of the
Supreme Court of Ohio to govern the practice of law”); State ex rel. Jones v.
Stokes, 49 Ohio App. 3d 136, 551 N.E.2d 220 (8th Dist.1989) (a court’s order
imposing a continuing restriction on an attorney’s ability to practice in that court
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is the “type of usurpation of jurisdiction by an inferior court which necessitates
relief in prohibition”).
{¶ 6} Notwithstanding Judge Gaul’s troubling conduct, however,
Wolpert’s affidavit must be dismissed. Under R.C. 2701.03(A), an affidavit to
disqualify a judge may be filed by “any party to the proceeding or the party’s
counsel.” As explained in previous disqualification matters, “the chief justice has
strictly enforced this statutory requirement and consistently found that individuals
who do not qualify as a ‘party’ or ‘party’s counsel’ do not have standing to file an
affidavit of disqualification.” In re Disqualification of Grendell, 137 Ohio St. 3d
1220, 2013-Ohio-5243, 999 N.E.2d 681, ¶ 2; In re Disqualification of Cleary, 74
Ohio St. 3d 1225, 657 N.E.2d 1337 (1990). Here, Judge Gaul removed Wolpert as
counsel in the underlying case and assigned the public defender’s office to
represent defendant. Because Wolpert is no longer counsel in the case, he is not
one of the persons who may file an affidavit of disqualification.
{¶ 7} Accordingly, although Wolpert may have other remedies for his
legal claims, he lacks standing to file an affidavit of disqualification under R.C.
2701.03. The affidavit is therefore dismissed.
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