Disciplinary Counsel v. Shimko , 134 Ohio St. 3d 544 ( 2012 )

[Cite as Disciplinary Counsel v. Shimko, 134 Ohio St. 3d 544, 2012-Ohio-5694.]
DISCIPLINARY COUNSEL v. SHIMKO.
[Cite as Disciplinary Counsel v. Shimko, 134 Ohio St. 3d 544, 2012-Ohio-5694.]
Attorneys—Misconduct—False statements concerning qualifications or integrity
of a judge—Stayed suspension.
(No. 2012-1002—Submitted September 12, 2012—Decided December 6, 2012.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 11-069.
_______________________
PFEIFER, J.
{¶ 1} Respondent, Timothy Andrew Shimko of Cleveland, Ohio, Attorney
Registration No. 0006736, was admitted to the practice of law in Ohio in 1976.
{¶ 2} On August 15, 2011, relator, disciplinary counsel, filed a one-count
formal complaint against Shimko, alleging that Shimko had made statements with
knowledge that they were false or with reckless disregard as to their truth or
falsity concerning the qualification or integrity of a judicial officer, in violation of
Prof.Cond.R. 8.2(a). Shimko was also charged with engaging in conduct that
adversely reflects on his fitness to practice law, in violation of Prof.Cond.R.
8.4(h).
{¶ 3} Shimko answered the complaint. He admitted making the
statements, but denied that the statements were false. He also denied that they
impugned the qualifications or integrity of the judicial officer, Judge Richard
Markus.
{¶ 4} The board adopted the panel’s recommendation that Shimko be
suspended from the practice of law for a period of six months, relying on
Disciplinary Counsel v. Gardner, 99 Ohio St. 3d 416, 2003-Ohio-4048, 793
N.E.2d 425, and Disciplinary Counsel v. Proctor, 131 Ohio St. 3d 215, 2012-
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Ohio-684, 963 N.E.2d 806. Shimko objects to the board’s findings and
recommended sanction, and seeks instead dismissal or a stayed suspension.
{¶ 5} Upon consideration of the report of the board, the findings of the
board, the briefs of the parties, and oral argument, we conclude that Shimko
violated Prof.Cond.R. 8.2(a) and 8.4(h). We suspend him from the practice of
law for a period of one year with the entire suspension stayed on condition that he
commit no further misconduct.
MISCONDUCT
{¶ 6} The specific allegations involve events between visiting Judge
Markus and Shimko, who was one of the attorneys for the parties in First Fed.
Bank of Ohio v. Angelini, Crawford County Court of Common Pleas Case No. 03
CV 0098. The issues involve statements made during three separate periods of
time.
{¶ 7} The first time period involved an unrecorded telephone conference
on October 9, 2008, between Judge Markus and the attorneys in the First Fed.
Bank case. During the telephone conference, which was initiated primarily to
address Shimko’s request for a continuance of the trial, the conversation shifted to
Shimko’s alleged unwillingness to enter into stipulations, despite his having filed
proposed stipulations before the telephone conference. The following day,
Shimko filed a motion to recuse Judge Markus along with an affidavit of
disqualification with the Supreme Court of Ohio, alleging that Judge Markus had
exhibited bias and prejudice against Shimko during the telephone conference. In
the affidavit of disqualification, Shimko alleged that Judge Markus had stated that
he “had lost all respect” for Shimko, had stated that he thought that Shimko was
“incompetent for embarking upon such a trial strategy,” and had “impliedly
threatened to punish [Shimko’s] client if [Shimko] further disappointed” Judge
Markus.
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{¶ 8} Judge Markus denied making the comments attributed to him. The
other attorneys involved in the conference filed affidavits that supported either
Judge Markus’s denial or Shimko’s allegations.
{¶ 9} The second time period involved Judge Markus’s presiding over the
trial in the First Fed. Bank case. On February 6, 2009, after an eight-day trial,
Judge Markus declared a mistrial based upon (1) inconsistencies between the
jury’s verdict and answers to interrogatories and (2) Shimko’s misconduct during
the trial, which, according to the judge, deprived the plaintiff of a fair trial.
Examples of misconduct were offered by the board to show the mindset and
motivation of Shimko in making allegations against Judge Markus in Shimko’s
later court filings. In the board’s opinion, these incidents show that Shimko’s
later allegations were false. Shimko relied on these excerpts to the contrary: to
show that his allegations concerning Judge Markus were justified and reasonable.
{¶ 10} One such incident occurred during voir dire, when Shimko
challenged a juror for cause because the juror was a depositor of one of the banks
involved in the case. In the ensuing discussion, which occurred outside the jury’s
hearing, Judge Markus denied the challenge and added, “If, in fact, we were to
accept your view and to disqualify all of the jurors who are depositors in one of
these two institutions, we may well have to seek a change of venue.” This
comment led to the following exchange:
Mr. Shimko: Wouldn’t bother me, Your Honor.
The Court: Are you moving for that?
Mr. Shimko: No, I am not.
The Court: Oh, all right.
Mr. Shimko: Does it come with a change of judge?
The Court: I’m interested in your comment. Is that
something that you think is appropriate?
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Mr. Shimko: Well, Your Honor, I think we have all
avoided speaking about the 400-pound gorilla elephant that’s in the
room. And I still must go on the record to say that the Angelini
Defendants have no confidence that they can obtain a fair trial in
this case.
The Court: I’m sorry that you have that view. I can assure
you, sir, that I have no favor or disfavor for you or any of the
lawyers or any of the litigants.
I may disagree with your view on some legal issues or on
some strategy that you choose to follow, but I can assure you that I
will give you and every other litigant the best I can of a fair trial
using the rules of law as I understand them and the evidence that I
present—that I hear. I don’t present evidence. I’m really sorry
that you have to make that statement, Mr.—
Mr. Shimko: Indeed, I am too, Your Honor.
{¶ 11} On several other occasions—including during cross-examination of
a witness, during use of an exhibit, and before and during closing argument—
Shimko interacted with Judge Markus in what the board referred to as “a
disrespectful and confrontational manner.” For example, during the trial,
opposing counsel called John Angelini in his case-in-chief. John Angelini was
the father of Shimko’s client and also one of Shimko’s witnesses. During a
recess, Judge Markus advised Shimko that he was not permitted to use leading
questions when questioning John Angelini.
The Court: I have advised Counsel that my reading of
Evidence Rule 611 indicates that a party questioning someone
identified with an adverse party shall be permitted to use leading
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questions, and that is why I had no problem with the questions
asked by counsel for the Plaintiff.
I suggested to other counsel that I view that this witness is
identified with Jeffrey Angelini and, therefore, his counsel should
avoid using leading questions; that counsel for Galion Bank can
use leading questions.
***
Mr. Shimko: Unless they call them in their direct case-in-
chief, and that’s what they did. And I’m entitled to cross-examine
in his case-in-chief, Your Honor.
The Court: I appreciate your position.
Mr. Shimko: Don’t appreciate yours.
***
Mr. Shimko: Let me assert one more, then. I think this is
further evidence of a bias and prejudice of the Court, Your Honor.
{¶ 12} Shimko cites other examples that occurred before, during, and after
trial to demonstrate that Judge Markus was biased, that he appeared to be biased,
and that he acted on his bias. For example, Judge Markus ruled that based on
Shimko’s lateness in paying an expert-witness fee, Shimko could not use the
witness’s deposition at trial. Although Shimko concedes that he could be
sanctioned for the late payment to the expert witness, he argues that the sanction
was unusually harsh, contrary to his experience in practice, and designed to
influence the merits of the case. Shimko also argues that the reasons for Judge
Markus’s granting of a mistrial—particularly the allegation of Shimko’s
misconduct—were unwarranted.
{¶ 13} In addition, Shimko points to a posttrial hearing and phone
conference at which Judge Markus sua sponte held that because Shimko had not
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properly substituted parties, Shimko would be precluded from participating in the
hearing. Judge Markus also required Shimko to pay for his own court reporter in
the phone conference.
{¶ 14} The third series of events involved the filing of appellate briefs and
additional posttrial affidavits of bias and prejudice. Shimko filed an appeal in the
Third District Court of Appeals on September 1, 2009. In his brief, Shimko made
several comments regarding Judge Markus’s integrity, including the following:
 When the trial court realized that the Answers to the
Interrogatories mandated a judgment in favor of Jeffrey Angelini
and against First Federal, the trial court’s bias once again surfaced
and he contrived a means to find that the jury was now somehow
confused, even though they had followed his instructions to the
letter.
 The court’s ruling, motivated by its own agenda, was nothing but
an abuse of discretion.
 Throughout the trial, the trial judge was so vindictive in his
attitude toward appellant’s counsel that he became an advocate for
First Federal. In short, the trial judge was trying First Federal’s
counsel’s case for him.
{¶ 15} Shimko also filed a brief in which he further discussed Judge
Markus’s integrity:
 The absurdity of the trial court’s conduct in this instance ought to
underscore the whimsical lengths to which it was willing to go to
deny Jeffrey Angelini his verdict.
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 In fact, the trial court felt that its contention that the jury was
confused was so thin that it had to resort to manufacturing
allegations of attorney misconduct to obscure his own abuse of
discretion.
 When the trial court realized that the jury had returned a verdict
for Jeffrey Angelini, he arbitrarily disregarded the protocol he had
originally adopted, and fabricated allegations of attorney
misconduct to camouflage his own unreasonable and injudicious
conduct.
{¶ 16} While the case was pending on appeal, Shimko filed a second
affidavit of disqualification, casting many of the same allegations contained in his
appellate briefs. Chief Justice Thomas J. Moyer dismissed Shimko’s second
affidavit of disqualification. On May 17, 2010, Shimko filed a third affidavit of
disqualification against Judge Markus, in which he reiterated most of the
allegations from his previous affidavits. On May 24, 2010, the court of appeals
affirmed Judge Markus’s grant of a mistrial. First Fed. Bank of Ohio v. Angelini,
3d Dist. No. 3-09-03, 2010-Ohio-2300. On May 26, 2010, Chief Justice Eric
Brown dismissed Shimko’s third affidavit of disqualification, stating, “Shimko is
cautioned that the filing of any further frivolous, unsubstantiated, or repeated
affidavits of disqualification involving the underlying case may result in an
imposition of appropriate sanctions.”
{¶ 17} Shimko does not deny writing any of the above comments in his
briefs or affidavits. He indicates that he believed them to be true. He denies that
he intended them to impugn Judge Markus’s integrity and claims that to find a
violation of Prof.Cond.R. 8.2(a) and 8.4(h) would chill the right of future litigants
to file affidavits of bias. Shimko argues that he had a “firmly held belief” that
Judge Markus violated his duty as a judge and that Shimko had a right to
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complain about the conduct of Judge Markus. He refers to Gardner, which cited
with approval the rationale from courts of other states that “an objective malice
standard strikes a constitutionally permissible balance between an attorney’s right
to criticize the judiciary and the public’s interest in preserving confidence in the
judicial system: Lawyers may freely voice criticisms supported by a reasonable
factual basis even if they turn out to be mistaken.” Gardner, 99 Ohio St. 3d 416,
2003-Ohio-4048, 793 N.E.2d 425, at ¶ 30, citing Standing Commt. on Discipline,
United States Dist. Court, Cent. Dist. of California v. Yagman, 55 F.3d 1430,
1438 (9th Cir.1995). In his closing argument before the panel, Shimko asked
rhetorically whether Ohio “attorneys must sacrifice their client’s constitutional
right to a fair and impartial trial at the altar of judicial deference.”
{¶ 18} The board found that Shimko’s arguments missed the point of the
complaint. Shimko has had and continues to have the right to allege violations by
judicial officers in the proper forum and by using the proper method under the
rules provided by this court. The board stressed that it found no violation in the
filing or specific factual examples used to support these allegations. What it
found as actionable violations was the use of ad hominem attacks and hyperbole
in appellate briefs and posttrial affidavits, including the following: “fabricating
allegations,” “completely fabricating the basis for his decision,” “deliberately
misrepresenting,” “contriving a reason,” and “personally invested in the
outcome.”
{¶ 19} Shimko concedes that attorneys do not have an unfettered right to
say whatever they desire about a member of the judiciary during or after trial. He
argues, however, that as long as the subjective belief appears reasonable to the
attorney, all comments are permissible regardless of the reckless disregard of the
truth. The board found such a subjective test unworkable as the test for falsity or
reckless disregard of the truth. We note that the difference between acceptable
fervent advocacy and misconduct is not always easily distinguishable.
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{¶ 20} The board’s finding was consistent with this court’s holding in
Gardner.
{¶ 21} As the Court of Appeals of New York observed in In re Holtzman,
78 N.Y.2d 184, 192, 573 N.Y.S.2d 39, 577 N.E.2d 30 (1991), adopting a
subjective standard “would immunize all accusations, however reckless or
irresponsible, from censure as long as the attorney uttering them did not actually
entertain serious doubts as to their truth.” The state’s interest in protecting the
public, the administration of justice, and the legal profession supports applying a
different standard in disciplinary proceedings. In re Chmura, 461 Mich. 517, 543,
608 N.W.2d 31 (2000), citing United States Dist. Court, E. Dist. of Wash. v.
Sandlin, 12 F.3d 861, 867 (9th Cir.1993).
{¶ 22} In Gardner, we imposed a six-month suspension from the practice
of law upon an attorney who accused the court of appeals panel of being dishonest
and of ignoring well-established law. Gardner, 99 Ohio St. 3d 416, 2003-Ohio-
4048, 793 N.E.2d 425, at ¶ 36. We concluded that that attorney had violated DR
8-102(B), the predecessor to Prof.Cond.R. 8.2(a). Id. at ¶ 3.
{¶ 23} In Proctor, 131 Ohio St. 3d 215, 2012-Ohio-684, 963 N.E.2d 806,
at ¶ 6-8, attorney Phillip Proctor falsely accused a judge in two separate pleadings
of harboring a bias against him, engaging in an ex parte communication with the
prosecutor, and attempting to cover up or deny his actions. Although Proctor had
originally stipulated to a violation of Prof.Cond.R. 8.2(a), he reneged on his
stipulation at the disciplinary hearing. He claimed that he had a reasonable belief
that the statements were true. Id. at ¶ 19. This court, citing Gardner, suspended
Proctor for six months. Id. at ¶ 19-20.
{¶ 24} Shimko seeks to distinguish his misconduct from that of Gardner
and Proctor by alleging that his genuinely held beliefs that Judge Markus’s
inappropriate actions adversely affected his client warrant a lesser sanction.
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Shimko claims that Gardner and Proctor did not honestly believe in the
rightfulness of their positions, as evidenced by their stipulations.
CONCLUSIONS OF LAW
{¶ 25} The board determined that the findings of Chief Justice Thomas J.
Moyer and Chief Justice Eric Brown as to the lack of claimed bias of Judge
Markus are binding. See State v. Getsy, 84 Ohio St. 3d 180, 702 N.E.2d 866
(1998), and Haney v. Trout, 10th Dist. Nos. 00AP-1448 and 00AP-1457, 2002
WL 205997 (Feb. 12, 2002). The board concluded, in the alternative, that no
objective, reasonable evidence exists to support the allegations in Shimko’s briefs
or affidavits as to the specific claimed impropriety or bias of Judge Markus. The
fact that the trial court ruled against Shimko in matters of evidence or procedure
does not equate to bias or show in and of itself improper conduct by the court.
{¶ 26} The board considered numerous statements concerning Judge
Markus that Shimko admits writing. The board concluded that these statements
were proved by clear and convincing evidence to be unreasonable and objectively
false with a mens rea of recklessness.
{¶ 27} The board concluded that holding Shimko accountable for his
conduct would not violate or chill his First Amendment rights under the United
States Constitution or his rights under Article I, Section II of the Ohio
Constitution. See Gardner, 99 Ohio St. 3d 416, 2003-Ohio-4048, 793 N.E.2d 425,
at ¶ 14-16. Rules of conduct that prohibit impugning the integrity of judges are
not designed to shield judges from criticism but are to preserve public confidence
in the fairness and impartiality of our system of justice. See id. at ¶ 28–29, citing
In re Terry, 271 Ind. 499, 502, 394 N.E.2d 94 (1979), and In re Graham, 453
N.W.2d 313, 322 (Minn.1990).
{¶ 28} The board concluded, by clear and convincing evidence, that
Shimko had violated Prof.Cond.R. 8.2(a) (forbidding making statements known to
be false or with reckless disregard to their truth or falsity concerning the
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qualification or integrity of a judicial officer) and 8.4(h) (forbidding conduct that
adversely reflects on the fitness to practice law).
AGGRAVATION, MITIGATION, AND SANCTION
{¶ 29} Shimko made written statements accusing a judicial officer of
dishonesty and improper motives in his rulings. These statements were deliberate
and calculated and made over a nine-month period. Some were part of an
apparent strategy to convince the court of appeals to overturn Judge Markus’s
decision. Shimko was unapologetic and did not acknowledge the wrongful nature
of his conduct. He continues to maintain the reasonableness of his accusations of
Judge Markus’s bias and of his commitment to serve his client. Shimko received
a public reprimand on June 23, 2009, from the Arizona Supreme Court, for which
he was reciprocally disciplined in Ohio. Disciplinary Counsel v. Shimko, 124
Ohio St. 3d 1201, 2009-Ohio-6879, 918 N.E.2d 1007.
{¶ 30} Shimko was cooperative in the disciplinary process, and no
apparent damage has been done to Judge Markus’s reputation. Shimko has an
excellent reputation with the bench and bar and is an intelligent, accomplished,
and competent attorney who zealously represents his clients to the best of his
ability. Based on his demeanor, the board determined that he subjectively, yet
honestly, believes in the rightfulness of his position. Consequently, the board did
not conclude that his motives were dishonest. Finally, his sanctionable statements
were made in a forum in such a way that it is likely that only the bench and
opposing counsel would see them; at no time was the sanctionable activity shown
to the jury or general public.
{¶ 31} The board adopted the findings of fact, conclusions of law, and
recommendation of the panel. It recommends that Timothy Andrew Shimko be
suspended from the practice of law for a period of six months.
{¶ 32} We agree that Shimko should be sanctioned and suspended;
nevertheless, we conclude that the suspension should be stayed. In reversing the
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suspension and fine of an attorney, a federal court of appeals stated, “Attorneys
should be free to challenge, in appropriate legal proceedings, a court’s perceived
partiality without the court misconstruing such a challenge as an assault on the
integrity of the court.” United States v. Brown, 72 F.3d 25, 29 (5th Cir.1995).
That court has also stated that “because attorney suspension is a quasi-criminal
punishment in character, any disciplinary rules used to impose this sanction on
attorneys must be strictly construed resolving ambiguities in favor of the person
charged.” In re Thalheim, 853 F.2d 383, 388 (5th Cir.1988).
{¶ 33} Our conclusion is largely based upon the fact that the statements in
this case, although made in “a public document, would receive about as much
scrutiny from the public if [they] were written on the wind.” Gardner, 99 Ohio
St.3d 416, 2003-Ohio-4048, 793 N.E.2d 425, at ¶ 43 (Pfeifer, J., dissenting). In
Gardner, the offending statements were between the “attorney and the bench, and
were presented in such a way that only the bench and opposing counsel would see
them.” Id. Likewise, Shimko’s remarks and allegations were either made out of
earshot of the jury or in filings to the chief justice of this court or to the court of
appeals.
{¶ 34} There is, admittedly, a fine line between vigorous advocacy on
behalf of one’s client and improper conduct; identifying that line is an inexact
science. Although Shimko’s comments about Judge Markus were rough,
unnecessary and ultimately unproductive, they were less defamatory than
Gardner’s rant against three judges on the court of appeals. Moreover, as the
panel noted, Shimko was cooperative in the disciplinary process. And there has
been no apparent damage done to Judge Markus’s reputation.
{¶ 35} Shimko could have and should have presented his allegations one
at a time, pointing to the record and using words that were powerful, but less
heated. It is his choice of language, not his right to allege bias in his affidavits
and in his appellate briefs, that brought him before the disciplinary counsel. In
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Gardner, we held that “[u]nfounded attacks against the integrity of the judiciary
require an actual suspension from the practice of law.” Gardner, 99 Ohio St. 3d
416, 2003-Ohio-4048, 793 N.E.2d 425, at ¶ 36, citing Disciplinary Counsel v.
West, 85 Ohio St. 3d 5, 706 N.E.2d 760 (1999). Here, we conclude that Shimko’s
comments are not equivalent to those in Gardner, even though his vigorous
advocacy went too far. Such behavior by an attorney should not go without
sanction.
{¶ 36} Accordingly, Shimko is suspended from the practice of law in Ohio
for one year, with the entire suspension stayed on condition that he commit no
further misconduct. Costs are taxed to Shimko.
Judgment accordingly.
LUNDBERG STRATTON, O’DONNELL, and CUPP, JJ., concur.
O’CONNOR, C.J., and LANZINGER and MCGEE BROWN, JJ., dissent.
____________________
O’CONNOR, C.J., dissenting.
{¶ 37} I dissent because the majority ignores a long-standing, bright-line
rule: “Unfounded attacks against the integrity of the judiciary require an actual
suspension from the practice of law.” Disciplinary Counsel v. Gardner, 99 Ohio
St.3d 416, 2003-Ohio-4048, 793 N.E.2d 425, ¶ 36, citing Disciplinary Counsel v.
West, 85 Ohio St. 3d 5, 706 N.E.2d 760 (1999), and Columbus Bar Assn. v.
Hartwell, 35 Ohio St. 3d 258, 520 N.E.2d 226 (1988).
{¶ 38} For that reason, I would impose six months’ actual suspension, as
recommended by the board.
The relevance of the affidavits of disqualification
{¶ 39} As a threshold issue, the majority should clarify that Shimko’s
affidavit-of-disqualification filings are relevant only for purposes of providing
context. In those proceedings, it was determined that Shimko’s allegations against
Markus were “frivolous” and “unsubstantiated.” Even so, the content of Shimko’s
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affidavits of disqualification is not a basis for his discipline. Rather, the board
independently reviewed Shimko’s allegations—made elsewhere—and concluded
that his statements were unfounded.
{¶ 40} Ohio’s statutory affidavit-of-disqualification process authorizes the
removal of a judge from a case if a party or attorney can prove that the judge has
(1) an interest in the litigation or (2) a bias or prejudice for or against a party or
counsel. R.C. 2501.13 (appellate judges), 2701.03 (common pleas judges),
2101.39 (probate judges), and 2701.031 (municipal and county judges).
{¶ 41} Three times, Shimko availed himself of the affidavit-of-
disqualification process, seeking Markus’s removal from the case. Three times,
Shimko was unsuccessful.
{¶ 42} The board expressly held that Shimko’s first filing did not
constitute a violation of the disciplinary rules. Board report at ¶ 33. It did not
explicitly reach the issue of whether the second and third filings constituted
violations, but it did make clear that its findings that Shimko violated the rules
were not based on any of his affidavit-of-disqualification filings. Id. at ¶ 28. In
doing so, it emphasized that the affidavit-of-disqualification process is the “proper
forum” “to allege violations of judicial officers.” Id.
{¶ 43} The majority purports to accept the board’s findings but also
concludes that an actual suspension is not required, in part because “ ‘[a]ttorneys
should be free to challenge, in appropriate legal proceedings, a court’s perceived
partiality without the court misconstruing such a challenge as an assault on the
integrity of the court.’ ” (Emphasis added.) Majority opinion at ¶ 32, quoting
United States v. Brown, 72 F.3d 25, 29 (5th Cir.1995).
{¶ 44} I agree with the board that the affidavit-of-disqualification
procedure is the appropriate legal proceeding through which attorneys may pursue
claims of judicial bias. And Shimko was permitted considerable latitude in that
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context. Because Shimko is not being disciplined on that basis, the majority’s
reliance on the Fifth Circuit’s opinion in Brown is misplaced.
Actual suspension is required
{¶ 45} The majority concedes that the board’s recommendation for six
months’ actual suspension “was consistent with this court’s holding in Gardner.”
Majority opinion at ¶ 20. Yet it reaches a different result by relying primarily on
Justice Pfeifer’s dissenting opinion in Gardner, which attracted not a single vote
other than Justice Pfeifer’s.
{¶ 46} In Gardner, we rejected the board’s recommendation to impose a
stayed suspension from the practice of law. Gardner, 99 Ohio St. 3d 416, 2003-
Ohio-4048, 793 N.E.2d 425, at ¶ 12. Gardner had been representing a criminal
defendant on appeal. The appellate court issued a decision in favor of the
prosecution. Gardner filed a motion for reconsideration in which he accused the
panel of being dishonest and ignoring well-established law. Among other things,
he accused the panel of being “results driven.” Id. at ¶ 3.
{¶ 47} Facing discipline, Gardner stipulated that by making the remarks,
he engaged in undignified or discourteous conduct that was degrading to a
tribunal, in violation of former DR 7-106(C)(6). But he contested the allegation
that he had knowingly made a false accusation about a judge in violation of
former DR 8-102(B). The board disagreed and found that clear and convincing
evidence proved that he had. Id. at ¶ 12.
{¶ 48} We adopted those findings but held that Gardner’s license had to be
suspended because, as a matter of course, “[u]nfounded attacks against the
integrity of the judiciary require an actual suspension from the practice of law.”
Id. at ¶ 36, citing West, 85 Ohio St. 3d 5, 706 N.E.2d 760, and Hartwell, 35 Ohio
St.3d 258, 520 N.E.2d 226.
{¶ 49} In so holding, we explained that false allegations about a judicial
officer that are made in court filings are especially egregious. Id. at ¶ 22. “A
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courtroom is not a forum for personal or political grandstanding, and the attorneys
who practice in it ‘possess, and are perceived by the public as possessing, special
knowledge of the workings of the judicial branch of government.’ ” Id., quoting
State ex rel. Oklahoma Bar Assn. v. Porter, 766 P.2d 958, 969 (Okla.1988).
Therefore, “[l]awyers’ statements made during court proceedings are ‘likely to be
received as especially authoritative.’ ” Id., quoting Gentile v. Nevada State Bar,
501 U.S. 1030, 1074, 111 S. Ct. 2720, 115 L. Ed. 2d 888 (1991).
{¶ 50} Notably, Justice Pfeifer disagreed with that judgment. He
concluded, singularly, that Gardner’s motion for reconsideration, “while a public
document, would receive about as much scrutiny from the public if it were written
on the wind.” Id. at ¶ 43 (Pfeifer, J., dissenting). He agreed with Gardner that a
public reprimand would have been sufficient, “especially given the virtually
nonpublic release of his comments.” Id. at ¶ 45.
{¶ 51} Similarly here, the majority refuses to impose an actual suspension,
as required by Gardner, and explains that its refusal “is largely based upon the
fact that the statements in this case, although made in ‘a public document, would
receive about as much scrutiny from the public if [they] were written on the
wind.’ ” Majority opinion at ¶ 33, quoting Gardner at ¶ 43 (Pfeifer, J.,
dissenting).
{¶ 52} Moreover, the majority does damage to the bright-line Gardner
rule by waxing poetic about the “fine line between vigorous advocacy on behalf
of one’s client and improper conduct; identifying that line is an inexact science.”
Majority opinion at ¶ 34. I do not agree that the line is so fine.
{¶ 53} Attorneys must conform their behavior to what is reasonable, not
what is perfect. See Gardner at ¶ 30. “Lawyers may freely voice criticisms
supported by a reasonable factual basis even if they turn out to be mistaken.” Id.
What we require of attorneys in this context is not unique: “The court room is not
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a place for groundless assertions, whatever their nature.” In re Cobb, 445 Mass.
452, 473, 838 N.E.2d 1197 (2005).
{¶ 54} Nor am I persuaded by the majority’s attempt to distinguish
Gardner. Both Gardner and Shimko made false statements about a judicial
officer. Both attorneys made the relevant statements in court filings. Both
represented that they subjectively believed their statements.
{¶ 55} We imposed an actual suspension upon Gardner even though he
had no history of discipline and even though he had apologized for the manner in
which he expressed his frustration. He conceded that he had behaved neither
appropriately nor professionally.
{¶ 56} In contrast, Shimko has a history of discipline. In 2009, we
publicly reprimanded him. Disciplinary Counsel v. Shimko, 124 Ohio St. 3d 1201,
2009-Ohio-6879, 918 N.E.2d 1007. And before us now, he shows no contrition.
Conclusion
{¶ 57} Deference to an established majority opinion, despite an individual
judge’s disagreement with the opinion, is part of the court’s rich tradition of
adherence to stare decisis. See, e.g., Shay v. Shay, 113 Ohio St. 3d 172, 2007-
Ohio-1384, 863 N.E.2d 591, ¶ 27, quoting Taylor v. Natl. Group of Cos., Inc., 65
Ohio St. 3d 482, 483, 605 N.E.2d 45 (1992) (Holmes, J., concurring). I am
confounded by the majority’s willingness to so readily disregard Gardner.
{¶ 58} As the majority conspicuously explained, “The board’s finding was
consistent with this court’s holding in Gardner.” Majority opinion at ¶ 20. I
wholeheartedly agree. For that reason, I would impose six months’ actual
suspension, as recommended by the board.
LANZINGER and MCGEE BROWN, JJ., concur in the foregoing opinion.
____________________
Jonathan E. Coughlan, Disciplinary Counsel, and Joseph M. Caligiuri,
Senior Assistant Disciplinary Counsel, for relator.
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SUPREME COURT OF OHIO
Richard C. Alkire Co., L.P.A., Richard C. Alkire, and Dean Nieding, for
respondent.
________________________
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