STARK CTY. BAR ASSN. v. RUSSELL, 25 Ohio St.3d 124 (1986)

495 N.E.2d 430

STARK COUNTY BAR ASSOCIATION v. RUSSELL.

D.D. No. 86-4Supreme Court of Ohio.
Decided July 23, 1986.

Attorneys at law — Misconduct — One-year suspension — Misuse of position as public official by initiating criminal proceeding without probable cause — Threatening criminal charges solely to obtain advantage in civil matter — DR 7-103(A) and 7-105.

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ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Bar.

Respondent, Gregory D. Russell, was admitted to the practice of law in Ohio in 1974, and until 1984 he was totally engaged in private practice, primarily in Alliance, Ohio. In 1983, respondent was elected to the office of Law Director of the city of Alliance and assumed such office on January 1, 1984. Such office was not a full-time responsibility, and respondent continued a part-time practice.

In May 1982, respondent became involved in the representation of Francis E. Carr in a post-decree domestic relations matter in which Carr, through counsel, was attempting to vacate a prior decree of dissolution which had dissolved the marriage of Francis Carr and Susan Carr, a.k.a. Susan May, her prior married name.

Respondent also represented Francis Carr in civil litigation filed in the Court of Common Pleas of Stark County on February 24, 1983, entitled Francis E. Carr v. Susan May, f.k.a. Susan Carr, case No. 83-303. In such case the plaintiff sought damages from the defendant for alleged slanderous remarks made by the defendant to the effect that Carr, then the principal of one of the Alliance city schools, was an intemperate drinker.

The respondent, after taking office as Law Director of the city of Alliance, continued to represent Carr in the damage action, and the proceeding was continued for one reason or another until a deposition was scheduled for January 11, 1985 in the office of the attorney for the defendant, Susan May. This deposition was conducted in order that Susan May’s sons by a prior marriage, namely Rodger May and Scott May, would be deposed for any information they might have relative to the issues to be presented within the trial upon the merits of the case. The deposition of the sons of the defendant was thought to be necessary in that both boys lived out of state and might not be available at the time of trial.

The interrogation of Rodger May by Susan May’s counsel concerned the number of occasions that he had seen Carr drinking. On cross-examination, respondent attempted to undermine the credibility and character of Rodger May. The transcript shows that the query, upon cross-examination, went beyond the questioning of credibility and transcended into a personal argument with the witness. The discussion and commentary by the respondent to this witness went well beyond the facts to be sought upon the cross-examination of the witness. In fact, at one point the record shows that respondent stated to the witness: “Don’t get smart with me or you won’t get out of this town.” Under the circumstances of this case where the witness was from Hawaii where he was attending school, the respondent’s comments meant that he would attempt to delay his return. Rodger May, it appears, when the deposition was over, retorted with somewhat of a derogatory remark to the effect that he would nail

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respondent’s posterior to the wall. All of such discourse occasioned emotions beyond the called-for circumstances of a related legal proceeding.

Respondent and Rodger May then had additional words outside the office of the attorney for Susan May. The respondent thereupon proceeded to his office of law director and consulted with his assistant with whom the respondent discussed the perfection of a criminal action against Rodger May, in that Rodger May had exhibited hostility to the respondent throughout the deposition. Testimony was presented to the municipal court judge at a probable cause hearing and a complaint was filed by the assistant law director charging Rodger May with aggravated menacing.

Rodger May was subsequently arrested by an Alliance police officer and placed in custody until he could post a $1,000 cash bond. Rodger hired an attorney to represent him on the criminal charge. A plea of not guilty was entered on behalf of Rodger. A demand for jury trial was filed and the case was assigned for trial. On March 26, 1985, respondent appointed Randy McFarren to serve as special prosecutor on the criminal complaint pending against Rodger. McFarren testified that in reviewing the matter he determined that the original complaint resulted in an “overcharge.” A motion to amend the complaint was filed in April 1985, some time preceding the commencement of the trial. The amendment would have reduced the charge to disorderly conduct. It was McFarren’s intention to amend the charge to avoid a jury trial.

Rodger May returned from Hawaii to Alliance for a trial that was to commence at 9:00 a.m. on April 4, 1985. The case had not been continued and the court had not ruled on the prosecutor’s motion prior to that time. McFarren did not, however, appear as scheduled for trial. In addition, a recorded message advised the jurors that they did not have to appear. The acting judge refused to dismiss the complaint for lack of prosecution when McFarren did not appear and he continued the trial to 2:00 p.m. that afternoon.

McFarren did appear at the hearing that afternoon. The acting judge refused to allow the amendment, but the criminal charge was dismissed with leave to refile. After Rodger May left the courthouse, McFarren conducted a probable cause hearing intending to charge Rodger with disorderly conduct based on the events of January 11, 1985. Respondent again testified at this proceeding. Although the court apparently found probable cause, a complaint was never filed with the clerk. No further criminal action was pursued against Rodger.

The board reviewed the transcript of deposition of Rodger May, the transcript of the first probable cause hearing, and the testimony of the eight witnesses who testified at the hearing before the panel of the board. The board found that the respondent did threaten Rodger May with criminal prosecution during a deposition and that respondent did subsequently use his position as a public official to initiate a criminal proceeding against Rodger May (i.e., aggravated menacing) when it was obvious that

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this charge was not supported by probable cause. The board found that respondent was guilty of misconduct in that such actions are a clear violation of DR 7-105 (threatening to present criminal charges solely to obtain an advantage in a civil matter) and DR 7-103(A) (as a public prosecutor, causing criminal charges to be instituted with knowledge that the charge is not supported by probable cause).

Based upon the foregoing, the board recommended that respondent be suspended from the practice of law for one year.

Richard J. Burt and Douglas N. Godshall, for relator.

Climaco, Climaco, Seminatore Lefkowitz Co., L.P.A., Anthony J. Garofoli and Richard D. Tomsick, for respondent.

Per Curiam.

After a full review of the facts and circumstances of this case, this court determines that the actions of the respondent were most unfortunately violative of the Disciplinary Rules as charged, and that indeed he had misused his position as a public official to initiate a criminal proceeding against Rodger May when the charge was not supported by probable cause. Further, that action was a violation of DR 7-105. Such overt and non-professional action should not be countenanced within our profession, and should be punished within the meaning of our professional rules.

Therefore, this court accepts the recommendation of the board, and orders that the respondent be suspended from the practice of law in the state of Ohio for a period of one year. Further, the court orders that the cost of these proceedings be taxed to respondent for which a judgment is hereby rendered and execution may issue.

Judgment accordingly.

CELEBREZZE, C.J., SWEENEY, LOCHER, HOLMES, C. BROWN, DOUGLAS and WRIGHT, JJ., concur.