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Ohio Legal Ethics Narrative
- Primary Ohio References: Ohio Rule 3.1; OH Civ R 11; OH App R 23; SCt R XIV(5); ORC 2323.51, 2705
- Background References: ABA Model Rule 3.1
Ohio Rule 3.1 is substantively identical to the Model Rule.
The following sections of the Ohio Code of Professional Conduct are listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 3.1: DR 7-102(A)(2), EC 7-25.
- Primary Ohio References: Ohio Rule 3.1
- Background References: ABA Model Rule 3.1
- Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 7.45-7.46, 7.56
- Commentary: ABA/BNA § 61:151; ALI-LGL § 110; Wolfram § 11.2
The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 7.45-7.46, 7.56 (1996).
Advancing an unwarranted claim or defense: Ohio Rule 3.1 prohibits a lawyer from "bring[ing] or defend[ing] a proceeding, or assert[ing] or controvert[ing] an issue in a proceeding, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law."
As stated in Comment , the filing of an action or defense taken on behalf of a client is not frivolous
merely because the facts have not first been fully substantiated or because the lawyer expects to develop vital evidence only by discovery.
Ohio Rule 3.1 cmt. . Lawyers must, however, inform themselves about the facts of their clients' cases and applicable law and thereby determine that good faith arguments can be made in support of their clients' position.
Such action is not frivolous even though the lawyer believes that the client's position ultimately will not prevail. The action is frivolous, however, if the lawyer is unable either to make a good faith argument on the merits of the action taken or to support the action taken by a good faith argument for an extension, modification, or reversal of existing law.
The Rule also contains an exception to the "not frivolous" test -- in a criminal or other case in which incarceration may result, a lawyer, in providing the assistance of counsel to which a criminal defendant is constitutionally entitled, may put the prosecution to its proof even if there is no nonfrivolous basis for defense. See Ohio Rule 3.1 & cmt. .
If, when the lawyer is approached to undertake representation, the prospective client wants the lawyer to present a frivolous claim or defense, the lawyer must refuse the employment . Ohio Rule 1.16(a)(1). See section 1.16:700.
If the lawyer discovers this to be the client's intent after accepting the representation, the lawyer likewise must (not may, as was the case under former OH DR 2-110(C)(1)(a)) withdraw. Ohio Rule 1.16(a)(1). See section 1.16:230. If the lawyer nevertheless accepts or remains in the representation and advances a frivolous claim or defense, the lawyer violates Ohio Rule 3.1.
The core concern of Ohio Rule 3.1 was treated under the former OHCPR in DR 7-102(A)(2). That provision prohibited the filing of claims or defenses unwarranted under existing law or by a good-faith argument to modify existing law. It did not expressly address advancing claims or defenses lacking a basis in fact, nor did it explain the special standards for criminal-defense counsel. Nevertheless, the case law discussing former OH DR 7-102(A)(2) should still provide significant guidance in understanding the new Rule.
Under the former OHCPR, violations often arose when a lawyer, acting on his own behalf, raised unwarranted claims or defenses. For example, a lawyer violated this provision by filing a counterclaim seeking disbarment of opposing counsel for adding him as a defendant in a civil action and by knowingly making false statements to the court to the effect that the Cincinnati Bar Association had advised him that his charges of misconduct against opposing counsel were valid. Cincinnati Bar Ass'n v. Gebhart, 69 Ohio St.2d 287, 431 N.E.2d 1031 (1982). And a lawyer, who filed a claim against a client for money owed and later withdrew it, and who admitted that he knew from the outset that his client actually owed him nothing, was found to have violated former OH DR 7-102(A)(2). Lake County Bar Ass'n v. Gargiulo, 62 Ohio St.2d 239, 404 N.E.2d 1343 (1980). Bringing suit for fees against the widow and son of the sole shareholder of a company for whom respondent had done legal work, when the lawyer had never performed legal work for either the widow or the son, also violated 7-102(A)(2). Cleveland Bar Ass'n v. Wishnosky, 88 Ohio St.3d 385, 726 N.E.2d 996 (2000). Another case in which the lawyer was disciplined under, inter alia, OH DR 7-102(A)(2) for advancing an unwarranted claim on his own behalf was Columbus Bar Ass'n v. Elsass, 86 Ohio St.3d 195, 713 N.E.2d 421 (1999) (lawyer brought defamation action against party who had filed ethics complaint against him, even though lawyer was aware of controlling Ohio authority to effect that ethics complaints are afforded absolute privilege from civil liability for statements made in course of disciplinary proceeding, so long as allegedly defamatory statements bear some reasonable relation to disciplinary proceeding, as was the case here). The most recent OHCPR case in this category is Office of Disciplinary Counsel v. Baumgartner, 100 Ohio St.3d 41, 2003 Ohio 4756, 796 N.E.2d 495. In Baumgartner, respondent was disbarred for violating former OH DR 7-102(A)(2), among many other provisions, based on her numerous baseless claims against a panoply of public officials in furtherance of her vigilante campaign directed at perceived public corruption. In an attempt to further this goal, respondent filed a "barrage" of actions and affidavits, all of which were found to be unwarranted. Included was her "own 'citizen's' complaint," filed in municipal court along with her own affidavits, accusing eleven public officials of various felonies and misdemeanors. Id. at ¶¶ 6-7. She also filed a federal action against the chairman of the disciplinary panel hearing her case, the Disciplinary Counsel, and various others claimed to be involved in what she considered to be public corruption. Id. at ¶ 4. As a result of this "vendetta," respondent was convicted in a separate criminal proceeding of making false accusations of impropriety. Id. at ¶ 9. Even when clients were involved, as in some of the counts, the Court found that respondent used their cases "to press her own agenda." Id. at ¶ 32.
The case law under former OH DR 7-102(A)(2) was not so limited, however, but extended to conduct of lawyers while representing clients as well. The most recent example under the Code is Cleveland Bar Ass’n v. Mitchell, 118 Ohio St.3d 98, 2008 Ohio 1822, 886 N.E.2d 222, where the respondent, as part of her efforts to obtain for her client Medicaid reimbursements for unsubstantiated health care expenses, filed a whole series of unfounded and “illegitimate” legal actions to compel the agency to pay the unsubstantiated expenses. All were dismissed and in one sanctions under Rule 11 and ORC 2323.51 (as to which see section 3.1:300) were imposed by the court. In Cleveland Bar Ass'n v. Sweeney, 71 Ohio St.3d 197, 643 N.E.2d 89 (1994), a lawyer filed a joint action on behalf of his client and a second party against an insurance company for bad-faith refusal to settle an action. The lawyer, however, had neither discussed the matter with the second party, nor received her authorization to represent her; in fact, the party had no knowledge of the suit being brought on her behalf. The Court treated bringing suit on behalf of a nonclient as a violation of former OH DR 7-102(A)(2) -- knowingly advancing a claim unwarranted under existing law. The Court was not swayed by the attorney's argument that he joined the second party in the action as a plaintiff only because he believed she was an involuntary plaintiff and necessary party under OH Civ R 19.
Because the lawyer's conduct arises in a court setting, one can look to the judicial response to the conduct as an indicia of whether the claim or defense was warranted. One must be careful, however, to avoid overreading the court's reaction. Thus, in Office of Disciplinary Counsel v. Hardesty, 80 Ohio St.3d 444, 447-48, 687 N.E.2d 417, 419-20 (1997), the Supreme Court ruled that a lawyer's filing of a Chapter 7 bankruptcy petition on behalf of his clients, which petition was later dismissed for "substantial abuse" because the bankruptcy court concluded on conflicting evidence that the debtors had the ability to pay some of their creditors in a Chapter 13 plan, did not constitute a violation of 7-102(A)(2).
There was one important exception contained in former OH DR 7-102(A)(2), which exception is continued in Ohio Rule 3.1. It provides lawyers the freedom to raise claims or defenses not presently recognized in the law, as long as the lawyer reasonably believes there is a good faith argument for the position. This freedom is necessary for the advancement of the law and to assure the proper representation of one's client. See Ohio Rule 3.1 cmt. . Instructive in this regard is Office of Disciplinary Counsel v. Pollock, 100 Ohio St.3d 280, 2003 Ohio 5752, 798 N.E.2d 594. Although respondent was found to have violated a number of provisions of the former OHCPR for his vendetta against multiple defendants in multiple lawsuits, the Court dismissed the 7-102(A)(2) charge. In so holding, it reasoned as follows:
[W]e decline to find specifically unethical what respondent insists is creative precedent and argument to advance his clients' causes. It is true that various courts, including this one, have found his claims meritless and, at times, frustratingly repetitious. However, those findings do not necessarily mean that the arguments are so far-fetched that professional discipline is in order. Attorneys must be given rein to experiment in groundbreaking legal pursuits, and here, respondent researched and supplied precedent (however tenuous) for his controversial claims. We will not foreclose the assertion of novel legal theories through the disciplinary process unless they are absolutely specious.
Id. at ¶ 45. (Similar sentiments were expressed in a case arising under ORC 2323.51, Riston v. Butler, 149 Ohio App.3d 390, 2002 Ohio 2308, 777 N.E.2d 857, at ¶ 39 (Hamilton) (quoting from Passmore v. Greene County Bd. of Elections, 74 Ohio App.3d 707, 713-14, 600 N.E.2d 309, 313-14 (Greene 1991).)
Finally, it should be noted that the advancement of unwarranted claims or defenses is policed by means other than the disciplinary rules. OH Civ R 11 and ORC 2323.51, as well as OH App R 23 and SCt R XIV(5), (all dealing with frivolous claims), provide means for controlling such conduct. These provisions are discussed in section 3.1:300.
Taking action that serves only to harass or maliciously injure another: Former OH DR 7-102(A)(1) prohibited a lawyer, in representing a client, from filing a suit, asserting a position, conducting a defense, delaying a trial, or taking other action on behalf of a client when the lawyer knows or it is obvious that the action is intended only to harass or maliciously injure another. While specific reference to harassment and malicious injury has not been carried over into Ohio Rule 3.1, it has been stated that MR 3.1 (substantively identical to the Ohio Rule) is "to the same general effect" as DR 7-102(A)(1) by virtue of the obligation to sue or defend on a basis that is "not frivolous." See ABA, Annotated Model Rules of Professional Conduct 299 (4th ed. 2000) (Model Code Comparison). As is further stated there, the "knowledge" or "obvious" factor has been deleted; the "not frivolous" test is an objective one. Id. However, because the Rules treat the Ohio version of Rule 4.4(a), rather than Rule 3.1, as the successor to OH DR 7-102(A)(1), discussion of the obligation not to harass or maliciously injure another has been placed in section 4.4:200 of the treatise.
- Primary Ohio References: OH Civ R 11; OH App R 23; SCt R XIV(5)(A); ORC 2323.51
- Background References: ABA Model Rule 3.1
- Commentary: ABA/BNA § 61:106; ALI/LGL § 110; Wolfram § 11.2
Ohio rule and statutory sanctions - In general: In Ohio, there are sanction provisions for frivolous or otherwise improper conduct at every level of the litigation process. There is, of course, OH Civ R 11, which is still modeled in substantial part on the original (1938) version of the federal rule and is applicable to civil actions in most state trial-court proceedings. (There is no comparable Ohio criminal rule.) OH Civ R 11, "to the extent that [it] would by [its] nature be clearly inapplicable," does not apply to appeals or certain other excepted proceedings, as set forth in OH Civ R 1(C). See, as to appeals, McGowan v. Stoyer, 2002 Ohio 5410, 2002 Ohio App. LEXIS 5409 (Franklin) ("Civ. R. 11 does not apply to conduct in the court of appeals," id. at para. 26); Westfield Ins. Co. v. Riehle, 113 Ohio App.3d 249, 680 N.E.2d 1025 (Williams 1996) (court of appeals has no authority to impose sanctions for alleged fraud on trial court; appellants' recourse is to file OH Civ R 11 motion in trial court). But see In re Terrance P., 124 Ohio App.3d 487, 706 N.E.2d 801 (Lucas 1997), where the court held that OH Civ R 11 applied in an appeal of a juvenile proceeding with respect to the adequacy of a notice of appeal. [Since a notice of appeal is filed in the trial court, one wonders why the issue was not simply treated as a normal appellate issue, with the court reviewing the correctness of the trial court's dismissal of the notice for want of a proper signature.] Other civil rules also contain sanction provisions dealing with specific subjects. See, e.g., OH Civ R 37 (discovery); OH Civ R 45(E) (subpoenas). OH App R 23 is applicable in intermediate appellate proceedings, civil and criminal, and SCt R XIV(5)(A) is applicable to all matters lodged in the Supreme Court.
ORC 2323.51, the frivolous action statute, applies to the filing of a civil action and the taking of any other action in connection with a civil action, including the filing of pleadings, motions, or other papers therein. ORC 2323.51(A)(1)(a). Other than appeals by an inmate against a government entity or employee (see ORC 2323.51(A)(1)(b)), the statute does not apply to appeals. State ex rel. Ohio Dep't of Health v. Sowald, 65 Ohio St.3d 338, 603 N.E.2d 1017 (1992) ("the statute refers to trial court judgments in civil actions. Accordingly, R.C. 2323.51 does not contemplate awarding attorney fees for defending appeals in civil actions." Id. at 343, 603 N.E.2d at 1021). See Chiropractic Clinic v. Kutsko, 92 Ohio App.3d 608, 612, 636 N.E.2d 422, 424 (Cuyahoga 1994). The current version of the statute is consistent with the Sowald result -- the provision mentioned above directed at appeals by inmates (not present in the version of the statute before the Sowald Court), merely reinforces the conclusion that "conduct" taken "in connection with a civil action," ORC 2323.51(A)(1)(a), is limited to actions taken in the court in which civil proceedings are instituted.
One decision ( Jackson v. Bellomy, 2002 Ohio 6495, 2002 Ohio App. LEXIS 6279 (Franklin)) attempted to distinguish Sowald on the ground that Sowald "was referring to the appeal of an appellate court's judgment [in mandamus], not to an appeal of a trial court's original judgment." Id. at para. 58. This dubious distinction was coupled with the somewhat more plausible argument that the statutory language "taking any other action in connection with a civil action" includes "taking the further related action of appealing its decision over a three year period of time," which "needlessly prolonged this controversy." Id. We know of no other decision so interpreting this language, and the current wording of the statute, limiting the types of appeals (i.e., those by inmates) constituting "conduct" to which the statute applies, would seem to render the second Jackson rationale obsolete.
Who may be sanctioned for misconduct - Civil Rule 11: OH Civ R 11 (in contrast to the current version of the federal rule, pursuant to which sanctions may be imposed on the lawyers, law firms, or parties responsible for the violation) is directed solely at the signing attorney (or pro se litigant). Village of Ottawa Hills v. Afjeh, 2006 Ohio 2618, 2006 Ohio App. LEXIS 2461 (Lucas) (Rule 11 sanctions imposed on pro se litigants); David v. Kaiser, 2004 Ohio 3149, 2004 Ohio App. LEXIS 2820 (Lucas) (OH Civ R 11 sanctions cannot be imposed on represented party); Riley v. Langer, 95 Ohio App.3d 151, 642 N.E.2d 1 (Hamilton 1994) (law firm on whose behalf attorney signed pleading cannot be held liable for sanctions under OH Civ R 11); see Donaldson v. Todd, 174 Ohio App.3d 117, 2007 Ohio 6504, 881 N.E.2d 280 (Franklin) (remanded for hearing on motion for sanctions against plaintiff with respect to petition filed pro se); Hathaway Brown School v. Watson, No. 60307, 1992 Ohio App. LEXIS 1584 (Cuyahoga Mar. 25, 1992) (remanded for hearing on motion for sanctions against attorney appearing pro se). But see Oster v. Crais, 2003 Ohio 5320, 2003 Ohio App. LEXIS 4789 (Licking), where the trial court had erroneously imposed Rule 11 sanctions “against appellants and their attorneys, jointly and severally.” Id. at para. 7. Because of deficiencies in the record supplied by appellants, the court of appeals could not “pass on the propriety of that ruling in the absence of a transcript, and must presume regularity and affirm.” Id. at para. 20. Note that sanctions may be imposed under OH Civ R 11 on local counsel who signs a court document drafted by another firm; the lawyer "had a nondelegable responsibility to ensure that the requirements of Civ. R. 11 were fulfilled." Lewis v. Celina Fin. Corp., 101 Ohio App.3d 464, 472, 655 N.E.2d 1333, 1338 (Mercer 1995).
Who may be sanctioned for misconduct - Revised Code 2323.51: The language of ORC 2323.51(B)(4) permits the imposition of sanctions on "a party, the party's counsel of record, or both." In determining upon whom sanctions should be levied under this provision, a considerable body of case law expressly articulates the view that sanctions under the statute should be imposed on the person who was actually responsible for the offending conduct. Ron Schiederer & Assocs. v. City of London, 81 Ohio St.3d 94, 97, 689 N.E.2d 552, 554 (1998) (sanctions for frivolous conduct affirmed; sanctions against attorney limited to actions taken during the time when he was representing client; separate sanctions imposed against client for conduct occurring when he was acting pro se. "The General Assembly [in ORC 2323.51] gave courts the discretion to hold those engaging in frivolous conduct responsible for their actions."). Accord Kinnison v. Advance Stores Co., 2006 Ohio 222, 2006 Ohio App. LEXIS 192 (Richland) (sanctionable conduct by appellant’s counsel; sanctions imposed on attorney); Stohlman v. Hall, 158 Ohio App.3d 499, 2004 Ohio 5219, 817 N.E.2d 118 (Cuyahoga) (no evidence that plaintiffs themselves intended to harass or maliciously injure defendant; sanctions therefore imposed on plaintiffs' counsel, not plaintiffs, for filing frivolous claims), appeal not allowed, 105 Ohio St.3d 1453, 2005 Ohio 763, 823 N.E.2d 457; Sain v. Roo, 2001 Ohio 4115, 2001 Ohio App. LEXIS 4740, at *23-24 (Franklin Oct. 23, 2001) ("The objective of the statute is to impose sanctions on the person actually responsible for the frivolous conduct. . . . [S]anctions may be imposed both jointly and severally on both plaintiff and counsel, if the conduct so warrants," as here); Stone v. House of Day Funeral Serv., Inc., 140 Ohio App.3d 713, 723, 748 N.E.2d 1200, 1207 (Lucas 2000) (using same language; attorney sanctioned); Master v. Chalko, No. 75973, 2000 Ohio App. LEXIS 2014 (Cuyahoga May 11, 2000) (ORC 2323.51 "provides the trial court with a mechanism to place blame directly where fault lies," id. at *5; sanctions imposed on lawyer, his law firm, and his client); Blackburn v. Lauder, No. 96 CA5, 1996 Ohio App. LEXIS 5108, at *19-20 (Lawrence Nov. 12, 1996) (using same language; imposition of sanctions on party for actions taken while acting pro se affirmed); P.K. Lumber Co. v. Investors Title Agency, Inc., No. 12184, 1991 Ohio App. LEXIS 255 (Montgomery Jan. 23, 1991) (modifying trial court sanction order against party by substituting counsel as the person responsible for ORC 2323.51 violation). See generally 2 Restatement (Third) of the Law Governing Lawyers § 110 cmt. g, at 174 (2000): "Courts generally attempt to impose sanctions for unwarranted litigation on the lawyer or client . . . in proportion to their relative responsibility." See also Rindfleisch v. AFT, Inc., 2005 Ohio 191, 2005 Ohio App. LEXIS 211 (Cuyahoga) (overruling assignment of error that sanctions should have been imposed on defendant’s counsel as well as defendant; where it is unclear who was advancing the frivolous conduct . . . we are unable to find that the trial court abused its discretion in awarding attorney fees solely against [defendant].” Id. at para. 19.).
There is some authority to the effect that a party can be sanctioned, even though the offender was the party's attorney. Dictaphone Corp. v. City of E. Cleveland, No. 60616, 1992 Ohio App. LEXIS 2842 (Cuyahoga June 4, 1992); see Mathis v. St. Alexis Hosp., 99 Ohio App.3d 159, 650 N.E.2d 141 (Cuyahoga 1994) (parties entered into covenant not to sue, pursuant to which hospital agreed not to pursue sanctions against plaintiffs; plaintiffs then refiled wrongful death claims, arguing that covenant failed for want of consideration since any sanctions award should have been directed at plaintiff's attorney, not plaintiffs; court of appeals held covenant enforceable "in light of R.C. 2323.51, which authorizes sanctions against a party as well as his attorney for frivolous conduct, and in light of [Dictaphone], where sanctions were upheld against the party and its attorney, even though it was only the attorney who engaged in frivolous conduct." Id. at 164, 650 N.E.2d at 144.).
A lawyer is subject to sanction under the frivolous action statute even though not the lawyer making the factual misstatements to the court, if that lawyer "knowingly acquiesces in the active misrepresentation of facts by his or her co-counsel to a court, without clarifying that misrepresentation to the court." Shields v. Englewood, 172 Ohio App. 3d 620, 2007 Ohio 3165, 876 N.E.2d 972 (Montgomery), at para. 67.
One court has read ORC 2323.51 as permitting the imposition of sanctions against the offending attorney's law firm, because it, as well as the individual attorney, was "counsel of record." Lewis v. Celina Fin. Corp., 101 Ohio App.3d 464, 472, 655 N.E.2d 1333, 1339 (Mercer 1995) (lawyer's filing of unfounded complaint without adequate investigation can constitute frivolous conduct under 2323.51; no specific finding of independent wrongdoing by his firm as such). See Master v. Chalko, No. 75973, 2000 Ohio App. LEXIS 2014 (Cuyahoga May 11, 2000) (sanctions imposed on lawyer's firm, as well as lawyer and client; again, no separate discussion of conduct by firm). Compare Riley v. Langer, 95 Ohio App.3d 151, 642 N.E.2d 1 (Hamilton 1994), the only other firm-sanction case found in Ohio, where the court affirmed the sanctions award based on "the Thompson Firm's frivolous conduct," id. at 163, 642 N.E.2d at 8, in asserting unwarranted legal positions.
A government-agency litigant is a "party" subject to sanctions under ORC 2323.51. Hollon v. Hollon, 117 Ohio App.3d 344, 690 N.E.2d 893 (Athens 1996) (county agency). See Ohio Civil Rights Comm'n v. Harlett, 132 Ohio App.3d 341, 347 n.2, 724 N.E.2d 1242, 1247 n.2 (Wood 1999) (dictum; trial court's imposition of sanctions against state agency under ORC 2323.51 reversed on de novo review by court of appeals; "we cannot say that appellants' pursuit of this case was absolutely unwarranted under existing law." Id. at 348, 724 N.E.2d at 1247.). See also Ohio Dep't of Admin. Servs. v. Robert P. Madison Int'l, Inc., 138 Ohio App.3d 388, 741 N.E.2d 551 (Franklin 2000) (while denial of order seeking sanctions against state agency under ORC 2323.51 was affirmed, there was no argument by agency or indication by court that agency was not sanctionable party under statute); cf. State ex rel. Fisher v. Cleveland Trinidad Paving Co., No. 65889, 1994 Ohio App. LEXIS 3757 (Cuyahoga Aug. 25, 1994) (state is subject to, not immune from, court's enforcement of discovery rules). (While not expressly addressing the issue, the Supreme Court imposed sanctions under what is now SCt R XIV(5)(A) on a county board of revision in Edbow, Inc. v. Franklin County Bd. of Revision, 86 Ohio St.3d 1207, 712 N.E.2d 757 (1999). The government agency-as-party issue does not appear to have arisen under the other sanction provision applicable to parties, OH App R 23.)
A Rule 11/ORC 2323.51 case, in which everyone involved seems to have missed the distinction between the two provisions with respect to who may be sanctioned, is In re Blake, 151 Ohio App.3d 777, 2003 Ohio 899, 786 N.E.2d 78 (Clark). In Blake, the plaintiff's grandparents were sanctioned for filing a frivolous suit seeking custody of their grandson. The parents initially moved for sanctions under OH Civ R 11 but at the hearing sought attorney fees under ORC 2323.51 as well. The court awarded attorney fees under the statute. On appeal the grandparents argued that it was unfair to award sanctions under the statute because they had no notice of the ORC 2323.51 basis until the date of the hearing and had no opportunity to respond. The appellate court rejected this argument, first, because the record reflected no objection to the new basis for sanctions and, second, because the grounds for sanctions under both the rule and the statutes are similar:
These standards are not so dissimilar that we will presume that the [grandparents] were prejudiced by the consideration of R.C. 2323.51. Moreover, they have presented no specific argument as to how they were prejudiced.
Id. at ¶ 18. Since sanctions under OH Civ R 11 can be awarded only against the offending attorney, however, it would appear that the last-minute use of ORC 2323.51, without an opportunity to respond, was prejudicial on its face.
Who may be sanctioned for misconduct - Appellate Rule 23: OH App R 23 is by its terms applicable only to the "appellant," see, e.g., Chiropractic Clinic v. Kutsko, 92 Ohio App.3d 608, 636 N.E.2d 422 (Cuyahoga 1994). Thus, counsel to the represented party is not subject to sanction under this rule. OH App R 23 sanctions may be imposed on an appellant who is proceeding pro se. Siemienkowski v. State Auto Mut. Ins. Co., 2006 Ohio App. LEXIS 4072 (Cuyahoga) (nonlawyer appellants); Mitchell v. Backer, 135 Ohio App.3d 775, 735 N.E.2d 919 (Hamilton 1999) (same).
Who may be sanctioned for misconduct - Supreme Court Rule XIV5(A): Pursuant to the language of SCt R XIV(5)(A), sanctions may be imposed on "the person who signed the appeal or action, a represented party, or both." In the nine cases applying the Rule to date, the sanction has been imposed on the offending attorney or attorneys, or on the party, as the Court deemed appropriate. State ex rel. Howard v. Doneghy, 102 Ohio St.3d 355, 2004 Ohio 3207, 810 N.E.2d 958 (sanctioned appellant was attorney appearing pro se); State ex rel. Howard v. Indus. Comm'n, 101 Ohio St.3d 1465, 2004 Ohio 819, 804 N.E.2d 39 (sanctions imposed on party-attorney, presumably appearing pro se); State ex rel. Howard v. Zimmerman, 99 Ohio St.3d 1535, 2003 Ohio 4753, 795 N.E.2d 676 (sanctioned mandamus relator was attorney, presumably appearing pro se); State ex rel. Kreps v. Christiansen, 88 Ohio St.3d 313, 725 N.E.2d 663 (2000) (sanctioned appellant was attorney appearing pro se); State ex rel. Grendell v. Davidson, 86 Ohio St.3d 629, 716 N.E.2d 704 (1999) (attorneys); State ex rel. Forsyth v. Brigner, 86 Ohio St.3d 585, 715 N.E.2d 1164 (1999) (in forma pauperis party); Edbow, Inc. v. Franklin County Bd. of Revision, 86 Ohio St.3d 1207, 712 N.E.2d 757 (1999) (party); Office of Disciplinary Counsel v. Pagac, 80 Ohio St.3d 1451, 686 N.E.2d 524 (1997) (sanctioned movant was disbarred attorney, presumably appearing pro se); Smith v. Serva-Portion, Inc., 78 Ohio St.3d 1504, 679 N.E.2d 5 (1997) (in forma pauperis party).
Sanctions pursuant to the inherent authority of the courts: There is one other wrinkle in the Ohio sanctions scheme that should be mentioned. Above and beyond the statutes and rules dealing with frivolous conduct, Ohio subscribes to the view that its courts have inherent power to deal with such abuses. A key case is Slabinski v. Servisteel Holding Co., 33 Ohio App.3d 345, 515 N.E.2d 1021 (Lorain 1986). There, the court of appeals held that the trial court had inherent power to sanction the plaintiffs' attorney for taking an ex parte dismissal of the case without advising the court that there was a pending counterclaim by defendants; nor did he advise defendants that the case had been dismissed. The trial court found the actions of plaintiffs' attorney to be an "abuse of process." The trial court granted defendants reasonable attorney fees and expenses, and the court of appeals affirmed:
Infrequently, but consistently, Ohio courts have relied upon the inherent powers of courts to do those things necessary for the preservation of judicial powers and processes. These inherent powers include the power to prevent abuse committed by counsel upon the court's processes.
Id. at 346, 515 N.E.2d at 1023. Accord Whitt v. Whitt, 2004 Ohio 5285, 2004 Ohio App. LEXIS 4851 (Greene) (affirming imposition of sanctions under inherent power theory based on vexatious, bad faith conduct); Haas v. Haas, 2002 Ohio 6375, 2002 Ohio App. LEXIS 6246, at para. 19 (Miami) (inherent power to award attorney fees against a party who acts "in bad faith, vexatiously, wantonly, obdurately, or for oppressive reasons"; inherent power sanctions against party who deliberately misrepresented her income at divorce hearing affirmed); Curtis v. Curtis, 140 Ohio App.3d 812, 749 N.E.2d 772 (Hamilton) (finding sanctions justified under inherent authority, as well as 2323.51 and statute applicable to this domestic relations matter; remanded for recalculation of award based on higher amount supported by evidence of record); State ex rel. Richard v. Cuyahoga County Comm'rs, 100 Ohio App.3d 592, 654 N.E.2d 443 (Cuyahoga 1995) (pursuant to its inherent powers, court denied prisoner future in forma pauperis status after he had made 63 previous in forma pauperis filings); see Cincinnati Bd. of Educ. v. Armstrong World Indus., Inc., No. C-910803, 1992 Ohio App. LEXIS 5465 (Hamilton Oct. 18, 1992) (where OH Civ R 37 sanctions unavailable in absence of motion to compel, trial court nevertheless had inherent authority to impose sanctions for discovery abuse consisting of bad-faith misrepresentation in interrogatory answers; argument that "the trial court lacked the authority to award sanctions for discovery abuse except as specifically provided in the civil rules" expressly rejected, id. at *10). Other sanctions cases acknowledge the inherent power of the court to act in such circumstances, but then go on to ground the decision on a specific statute or rule. E.g., Lewis v. Celina Fin. Corp., 101 Ohio App.3d 464, 655 N.E.2d 1333 (Mercer 1995) (OH Civ R 11; ORC 2323.51). But see Drennen v. Heinonen, 146 Ohio App.3d 214, 765 N.E.2d 915 (Ashtabula 2001), where the appellate court reversed the trial court's award of attorney fees to opposing counsel for counsel's failure to attend a scheduling conference. Emphasizing the absence of any provision in the local rules for imposition of sanctions for missing a scheduling conference, the reviewing court held that the trial court had exceeded its authority. No mention was made of the court's inherent authority, other than noting that the Eighth District Court of Appeals, in Turner v. Boyrdkdar, No. 75235, 1999 Ohio App. LEXIS 2799 (Cuyahoga June 17, 1999), had "sympathized with the trial court's inherent right to control its courtroom" but nevertheless reversed fines not provided for in its local rules. 146 Ohio App.3d at 216, 765 N.E.2d at 916-17. A brief but informative summary of the inherent power doctrine in state and federal courts is presented in Daniel J. Meador, Inherent Judicial Authority in the Conduct of Civil Litigation, 73 Tex L. Rev. 1805 (1995). The contempt aspect of the courts' inherent power is discussed in sections 3.1:500 and 3.5:400.
Federal court sanctions: In addition to the applicable state provisions, the Ohio practioner should also be aware of the federal counterparts, Fed R Civ P 11, FRAP 38, 28 USC §§ 1912, 1927, which deal with frivolous filings in federal district courts and frivolous appeals in federal appellate courts. (See also Fed R Crim P 42.) There are no provisions dealing specifically with frivolous conduct in the Sixth Circuit local rules or those of the Ohio federal district courts. For a Sixth Circuit case affirming the district court's invocation of its inherent power to sanction a party for bad-faith litigation misconduct, see First Bank v. Hartford Underwriters Ins. Co., 307 F.3d 501 (6th Cir. 2002); in Red Carpet Studios v. Sater, 465 F.3d 642 (6th Cir. 2006), the court held that appellant's vexatious and harassing conduct was sanctionable under § 1927, the trial court's inherent authority, or both. An informative Sixth Circuit decision granting appellee’s motion for attorneys fees and costs under the FRAP 38 frivolous appeal rule is B&H Med., L.L.C. v. ABP Admin., Inc., 526 F.3d 257, 271 (6th Cir. 2008) (“We generally impose sanctions only in the rare case when an appeal involves ‘an improper purpose, such as harassment, or delay,’ [citation omitted], or, when, as here, an appeal consists of baseless or improperly raised arguments, [citation omitted].”) For the court’s follow-up opinion fixing an amount constituting a reasonable sanction, see 534 F.3d 801.
Sanctions - The standard employed - Unfounded assertions of fact: One aspect that should be noted preliminarily with respect to the applicable standards is the extent to which the various provisions permit the imposition of sanctions for frivolous assertions of fact, as opposed to, or in addition to, law. The Supreme Court rule, SCt R XIV(5)(A), expressly includes the well-grounded-in-fact requirement: pursuant thereto, an appeal or other action "shall be considered frivolous if it is not reasonably well-grounded in fact [or law]." Id. Neither OH Civ R 11 nor OH App 23 makes any distinction between law or fact frivolousness; the former refers generally to the need for "good ground" to support a document filed, the latter generally to frivilous appeals. See Cominsky v. Malner, 2004 Ohio 2202, 2004 Ohio App. LEXIS 1954 (Lake) (imposing Rule 23 sanctions for appeal “not reasonably well grounded in fact, and, therefore, . . . frivolous.” Id. at para. 26.).
ORC 2323.51 has had a checkered history on this issue. Traditionally limited in this regard to unwarranted assertions of law, the provision was amended by the ill-fated Tort Reform Act of 1996 to add unfounded factual assertions to the definition of frivolous conduct. That Act was declared unconstitutional en toto by the Supreme Court in State ex rel. Sheward v. Ohio Academy of Trial Lawyers, 86 Ohio St.3d 451, 715 N.E.2d 1062 (1999). In response, the legislature reinstated the section as it had existed prior to the 1996 Act. See 2001 S 108, § 1, effective July 6, 2001. A second Tort Reform Act was enacted effective April 7, 2005; it added to the "frivolous conduct" definition, in language substantively identical to the 1996 Act, unwarranted or unsupported factual contentions. See ORC 2323.51(A)(2)(a)(iii) & (iv). Cases applying the 2005 version of 2323.51 include Donaldson v. Todd, 174 Ohio App.3d 117, 2007 Ohio 6504, 881 N.E.2d 280 (Franklin) (finding appellant's motion for sanctions under statute demonstrated "arguable merit," id. at para. 10, inasmuch as it called into question whether factual allegations in plaintiff's petition had any "evidentiary support" under subdivision (A)(2)(a)(iii); denial of motion reversed and case remanded for hearing); Shields v. Englewood, 172 Ohio App.3d 620, 2007 Ohio 3165, 876 N.E.2d 972 (Montgomery) (affirming imposition of sanctions for misrepresentations of fact made subsequent to effective date of new act).
Even though not expressly included in the pre-2005 version of the statute, frivolous assertions of fact were read in by a number of cases. See Springfield Township v. Adams, 2005 Ohio 591, 2005 Ohio App. LEXIS 613 (Summit) (reversing failure to hold hearing on motion for sanctions having arguable merit, based in part on filings having “no basis in law or fact,” id. at para. 19); All Climate Heating & Cooling, Inc. v. Zee Props., Inc., No. 01 AP-784, 2002 Ohio App. LEXIS 1951 (Franklin Apr. 25, 2002). See also Harmon v. Adams, 2002 Ohio 2103. 2002 Ohio App. LEXIS 2048 (Union) (citing Billingham). Jones v. Billingham, 105 Ohio App.3d 8, 12, 663 N.E.2d 657, 659 (Montgomery 1995) (dictum; under ORC 2323.51 (and OH Civ R 11), a "frivolous claim is a claim that is not supported by facts in which the complainant has a good-faith belief, and which is not grounded in any legitimate theory of law or argument for future modification of the law"). Accord Burrell v. Kassicieh, 128 Ohio App.3d 226, 714 N.E.2d 442 (Seneca 1998). Disagreeing with this reading, the court in Riston v. Butler, 149 Ohio App.3d 390, 2002 Ohio 2308, 777 N.E.2d 857 (Hamilton), sided with those courts that "have determined that the language of R.C. 2323.51 'does not define frivolous conduct so as to include the assertion of a claim or defense which is not well grounded in fact,' and have refused to read such language into the statute." Id. at para. 27. Accord Teter v. Rossi, 2002 Ohio 4818, 2002 Ohio App. LEXIS 4883, at para. 35 (Trumbull). Under the current version of the Reform Act, this split on the proper reading of the prior language of ORC 2323.51 will be of academic interest only.
Sanctions - The standard employed - Civil Rule 11: Ohio Civ R 11 regulates three types of conduct: signing pleadings, motions, or other documents that (1) lack good grounds to support them, (2) are filed for delay, or (3) contain "scandalous or indecent" material. For a case in which the scandalous or indecent provision was applied, see Jackson v. Bellomy, 2002 Ohio 6495, 2002 Ohio App. LEXIS 6279 (Franklin) (post-hearing statement including "inflammatory," "outrageous," and totally irrelevant discussion about encounter between opposing counsel and police); see also In re Estate of Call, 2005 Ohio 1466, 2005 Ohio App. LEXIS 1420 (Lorain) (affirming trial court’s imposition of Rule 11 sanctions on attorney based on presence of “scandalous” matter, as well as on willfully filing allegations when he lacked good grounds for doing so).
Most Rule 11 motions deal with the other two grounds. Thus, the attorney (or pro se litigant) can be sanctioned, on an opposing party's motion or on the court's own motion, for a "willful" violation of the rule; i.e., signing a pleading, motion, or other document for which there is no good ground of support, or one filed for purposes of delay. The attorney's signature constitutes a certificate that the lawyer has read the document, that "to the best of the attorney's . . . knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay." An oft-cited case analyzing the OH Civ R 11 standard is Ceol v. Zion Indus., Inc., 81 Ohio App.3d 286, 610 N.E.2d 1076 (Lorain 1992):
An attempt to invoke Civ. R. 11 . . . should be followed by a three-step determination. First, the court must consider whether the attorney signing the document (1) has read the pleading, (2) harbors good grounds to support it to the best of his or her knowledge, and (3) did not file it for purposes of delay. If any one of these requirements is not satisfied, the next question is whether the violation was "willful" as opposed to merely negligent. . . . If so, the court may impose an "appropriate action." Broad discretion is afforded to the determination of what, if any, sanction is to be administered.
Id. at 290, 610 N.E.2d at 1078 (emphasis by the court; ellipses added). Accord Teter v. Rossi, No. 2002 Ohio 4818, 2002 Ohio App. LEXIS 4883, at para. 19 (Trumbull). Consistent with Ceol, the Eighth District Court of Appeals in Alpha Benefits Agency, Inc. v. King Ins. Agency, Inc., 134 Ohio App.3d 763, 731 N.E.2d 1209 (Cuyahoga 1999), reversed the trial court's imposition of sanctions under OH Civ R 11 where there was nothing to indicate that the lower court had considered the Ceol factors before sanctioning appellant's counsel.
The application of the first factor, whether the lawyer has read the document he signed, is self-evident. (At least one disciplinary decision, Columbus Bar Ass'n v. Flanagan, 77 Ohio St.3d 381, 674 N.E.2d 681 (1997), pointed out respondent's failure to comply with the Rule 11 protocol making a lawyer's signature a certification that he has read the document.) Although not stated expressly in the Rule, there is also a duty to inform oneself before signing by undertaking an investigation reasonable under the circumstances. See, e.g., Lewis v. Celina Fin. Corp., 101 Ohio App.3d 464, 655 N.E.2d 1333 (Mercer 1995).
The second concern, whether the lawyer signed a document lacking good grounds to support it, arises often. It is important to note that the question is not whether the position asserted is ultimately successful, but rather whether based on the lawyer's "knowledge, information or belief" the lawyer believes there are "good grounds to support it." Ohio Civ R 11. Related is the limitation, discussed below, that only willful violations are subject to sanction. Taken together the Rule punishes the willful filing of groundless positions while leaving room for lawyers to develop the facts, present novel theories and otherwise advance their clients' interests. Two cases help illustrate this balance.
In CWP Ltd. P'ship v. Vitrano, 96 Ohio Misc.2d 37, 708 N.E.2d 1091 (C.P. Cuyahoga 1998), the court held that "[a]ttorneys should not be placed in peril simply because they are unsuccessful in attempting to fashion a legal remedy or because an appeal which they prosecute falls by the wayside."
The type of conduct contemplated under Civ. R. 11 and R.C. 2323.51 for which sanctions would be appropriate would include actions described as:
None of these adjectives is appropriate to describe the failed efforts of CWP or its attorneys to obtain a judgment against the Vitranos in Cuyahoga County.
Id. at 43, 708 N.E.2d at 1095.
In an unusual invocation of OH Civ R 11, plaintiffs in Marsalis v. Wilson, 149 Ohio App.3d 637, 2002 Ohio 5534, 778 N.E.2d 612 (Champaign), argued that they could not file their action for breach of fiduciary duty against corporate directors and officers without risking OH Civ R 11 sanctions, unless they were allowed to obtain discovery of the information they sought in order to rebut the presumption of the business-judgment rule. Unpersuaded, the appellate court in an instructive opinion noted that "[p]laintiffs' argument confuses pleading and proof," id. at ¶ 15, and that they are not obligated to plead operative facts that would rebut the presumption in their complaint. The court went on to hold that, although plaintiffs' Rule 11 concerns were not thereby completely resolved, the trial court's finding that plaintiffs possessed sufficient information to file their complaint "would collaterally estop a Civ. R. 11 claim to the contrary on the same issue in a subsequent proceeding between these same parties." Id. at ¶ 18.
One caveat should be noted. Although Ohio Civ R 11 is addressed to the signing of documents, the signing lawyer's responsibility for such documents is a continuing one. If an assertion, properly made at the time of signing, becomes improper because the lawyer later learns the assertion is, in fact, groundless, the lawyer will be found in violation of Rule 11 if the lawyer continues to pursue the groundless point. Taylor v. Franklin Blvd. Nursing Home, Inc., 112 Ohio App.3d 27, 677 N.E.2d 1212 (Cuyahoga 1996) (willful violation shown where lawyer continued "to pursue the action despite plaintiff's own acknowledgment [at her deposition] that she had no claim." Id. at 32, 677 N.E.2d at 1215). Similar misconduct was a basis for sanctioning a lawyer in the case of Office of Disciplinary Counsel v. King, 95 Ohio St.3d 93, 766 N.E.2d 131 (2002), where one of the numerous violations of probation by a previously disciplined attorney consisted of his being sanctioned under OH Civ R 11 "for frivolous behavior in continuing to pursue an action despite his client's own acknowledgment that she had no claim." Id. at 93, 766 N.E.2d at 132.
The third factor is whether the signed document was filed for purposes of delay. Although delay is rarely invoked as an independent ground in the cases, one such example is McDonald v. Berry, 84 Ohio App.3d 6, 8, 616 N.E.2d 248, 249 (Cuyahoga 1992) (sanctioning party under Rule 11 for "'tactics . . . delaying and otherwise prolonging this litigation.'"). While unstated in the Rule, it should be limited to instances where the filing is made principally or perhaps even solely for delay. If a lawyer files a document for which there is support, it should be allowed even is securing delay is one of the factors behind its filing.
Even if a lawyer violates one of these requirements, sanctions will not be imposed unless the lawyer's violation was "willful." E.g., Kreger v. Spetka, 2005 Ohio 3868, 2005 Ohio App. LEXIS 3557 (Lucas) (imposition of Rule 11 sanctions requires finding that filing was willful; evidence established that conduct of pro se plaintiff was merely negligent, not willful). Accord Neubauer v. Ohio Rencon, Inc., 2006 Ohio 1481, 2006 Ohio App. LEXIS 1335 (Franklin). The rule “employs a subjective bad-faith standard,” State ex rel. Dreamer v. Mason, 115 Ohio St.3d 190, 2007 Ohio 4789, 874 N.E.2d 510, at para. 19; it is the lawyer's actual intent or belief that is relevant to the determination of willfulness. Riston v. Butler, 149 Ohio App.3d 390, 2002 Ohio 2308, 777 N.E.2d 857 (Hamilton); Stone v. House of Day Funeral Serv., Inc., 140 Ohio App.3d 713, 748 N.E.2d 1200 (Lucas 2000); see Brady v. Hickman & Lowder Co., LPA, 2004 Ohio 4745, 2004 Ohio App. LEXIS 4307 (Cuyahoga) (filing suit under guise of being attorney-in-fact under power of attorney, when plaintiff knew power of attorney had been revoked, was willful violation of Rule 11); see also Good v. Krohn, 151 Ohio App.3d 832, 2002 Ohio 4001, 786 N.E.2d 480 (Allen) (in finding that appellee insurance company's arguments, with respect to whether the policy contained an uninsured motorist's form, incorrectly stated the "true contents of the policy," id. at para. 13, the court reversed and recommended that, on remand, "the trial court may wish to consider whether Civ. R. 11 sanctions are appropriate.":
The propriety of Lumbermen's representations is questionable and raises grave concerns as to whether its conduct before this court and the trial court constitutes a deliberate, malicious, bad-faith attempt to mislead the judiciary and opposing party or merely a fortuitous incident of inadvertent neglect.
Id. at ¶ 14.
Sanctions - The standard employed - Civil Rule 11 - Violation found: Violations of Ohio Civ R 11 are not uncommon. Numerous cases involve signing a document in the face of known facts that clearly demonstrate the assertion is groundless. For example, in Beechler v. Peterman, 2001 Ohio 4064, 2001 Ohio App. LEXIS 4922 (Franklin Nov. 6, 2001), attorney Elsass asserted on behalf of his client Beechler a legal-malpractice claim against attorney Peterman after having entered into an agreement with Peterman to settle the claim. Affirming the imposition of OH Civ R 11 sanctions, the court of appeals reiterated the magistrate's findings
that there was clear and convincing evidence that Elsass "had no justiciable basis to file the claim for legal malpractice against Ms. Peterman since he and his client had accepted a settlement and received payment as to such settlement." The magistrate further found that "there is no legal or equitable basis to place an endorsement upon a check of 'deposit on damages * * *,' which was intended to represent full settlement of a claim, and then to further maintain an action of malpractice on the claim."
Id. at *9-10. In Jones v. Records Deposition Service, 2002 Ohio 2269, 2002 Ohio App. LEXIS 2295 (Lucas), attorney Rogers was sanctioned under OH Civ R 11 for filing an action challenging on behalf of his client subpoenas the reporting firm had served in the underlying action to obtain the client's medical records. Rogers claimed the subpoenas were invalid and that the disclosure invaded his client's privacy. The problem with this position was that his client had previously signed a release permitting her employer's attorney access to her medical records. The court of appeals rejected Rogers' argument that he had sufficient grounds for filing the suit:
[W]e find that Rogers did not have sufficient facts to justify filing this action. Rogers knew that there had been a waiver of Jones' confidentiality rights and that he failed to challenge the subpoenas in the underlying civil action to prevent improper disclosure of her records.
Id. at ¶ 15. Another example is Rust v. Harris-Gordon, 2004 Ohio 1636, 2004 Ohio App. LEXIS 1470 (Lucas), where the plaintiff attorney , having previously litigated and lost his “charging lien” theory against a third party, nevertheless filed suit on the same theory against yet another third party. Since the previous litigation had “already established that no such lien existed, meaning that no third party could be held responsible for any agreement between Rust and [his former client],” id. at para. 41, and “[d]espite being informed that his claim against Mickel was not viable, he continued to pursue it. In our view, whether through ignorance or petulance, Rust’s actions constitute a willful filing of a claim without legal authority to support it,” id. at para. 43; the trial court’s imposition of sanctions under Rule 11 was therefore affirmed. (With respect, the pairing of “ignorance” with “willful” conduct seems a bit of a nonsequitur; perhaps the court intended “obstinence.”). Appellant continued to throw good money after bad: his unsuccessful appeal of the trial court’s Rule 11 sanctions resulted in Ohio App R 23 sanctions, because the appeal as to appellee Mikel raised no reasonable question for review and was frivolous.
As stated above, only willful violations are subject to sanction. Determining whether the lawyer's actions were, in fact, willful often turns on an analysis of the surrounding circumstances. Sometimes, as where a lawyer acts in the face of clear evidence that his assertions are groundless, a court may, as in Rust above, infer willfulness from that act alone, but often other factors are relied upon as well. For example, in the Jones case, cited above, the court further found that the trial court did not abuse its discretion in finding the violation willful, given the existence of evidence of Rogers' "personal animus" against the reporting service based on a prior incident. See also Haney v. Trout, Nos. 00AP-1448, 00 AP-1457, 2002 Ohio App. LEXIS 501 (Franklin Feb. 12, 2002) (post-judgment motions containing reckless allegations of "criminal activity, civil fraud and professional misconduct,'" as well as other "bizarre legal arguments," were filed without good grounds and constituted "willful" violation of OH Civ R 11; neither law nor facts supported the filings, as a reasonable investigation would have disclosed. Id. at *15-16).
Sanctions - The standard employed - Civil Rule 11 - Violation not found: In Nationsrent v. Michael Constr. Co., 2002 Ohio 1380; 2002 Ohio App. LEXIS 1388 (Summit Mar. 27, 2002), the court of appeals reversed the imposition of sanctions under OH Civ R 11 (and ORC 2323.51) on plaintiff and its attorney for suing the defendant to obtain payment for rental of a bulldozer. The court held that the lawyer had plausible grounds for doing so, given that defendant had an account with plaintiff (which defendant had falsely denied), the bulldozer was used during the rental period at the defendant's construction site, and the individual renting the bulldozer represented that he was authorized to do so (although in fact he was apparently not so authorized). As the court noted, "[a] simple denial by Appellee [defendant] was insufficient to convert Appellant's original belief that Appellee was responsible for the rental into a groundless complaint, especially when one considers Appellee previously lied about its [account] relationship with Appellant." Id. at *7.
A more recent case in which Rule 11 monetary sanctions were reversed is Bowersmith v. United Parcel Service, Inc., 166 Ohio App.3d 22, 2006 Ohio 1417, 848 N.E.2d 919 (Union). Plaintiffs argued that Shank, the lawyer for UPS, had violated Rule 11 by filing a 12(B)(6) motion for dismissal that was not grounded on applicable law and that ignored a 1996 amendment to the Carmack Amendment, 49 USC § 14706. Shank had asserted that the Carmack Amendment preempts state law claims, such as the negligence and breach of contract claims advanced by plaintiffs. The 1996 amendments did not affect Shank's preemption arguments, which remained good law. E.g., Coughlin v. United Van Lines, Inc., 362 F. Supp.2d 1166 (C.D. Cal 2005) (breach of contract and negligence claims preempted, citing the same U.S. Supreme Court precedents relied on by Shank). Apparently, neither the plaintiffs nor the trial court ever got this straight; as the appellate court noted, "[n]ot only was Shank's argument made in good faith, it was correct," and appellees' argument was "the closest thing to frivolity in this case." Id. at ¶¶ 14, 9.
Sanctions under OH Civ R 11 have also been reversed where:
the conduct was not willful, Riston v. Butler, 149 Ohio App.3d 390, 2002 Ohio 2308, 777 N.E.2d 857 (Hamilton) (despite unresolved questions at time complaint filed, lawyer's subjective reasons for doing so were more than adequate);
the facts at the time of filing were unclear and the lawyer erred in favor of the client, Burns v. Henne, 115 Ohio App.3d 297, 685 N.E.2d 294 (Miami 1996) (lawyer asserting fraud against realty company sanctioned by trial court for including, in trial court's words, "allegations . . . which he knew to be false"; according to appellate court, at time of filing of complaint, unclear which of two realty companies (or both acting in concert) may have presented "bogus" furnace-inspection report and thereby "duped" closing agent; "[t]hus, to guarantee protection of his clients' interests, Pelaez properly named both real estate companies in the complaint." Id. at 304, 685 N.E.2d at 299);
the lawyer reasonably relied on his client’s factual representations – such “does not constitute bad faith” moreover, his “failure to research his claim, his unawareness of the law, and his collection of only inapplicable, out-of-state case law appears to rest in negligence rather than willfulness.” Kozar v. Bio-Medical Applications of Ohio, Inc., 2004 Ohio 4963, 2004 Ohio App. LEXIS 4516, at para. 12 (Summit) (affirming trial court’s denial of Rule 11 sanctions);
legitimate legal arguments existed for the position advanced, Harmon v. Adams, 2002 Ohio 2103, 2002 Ohio App. LEXIS 2048 (Union) (claim barred by res judicata, but "we cannot say that there were no legitimate arguments of law supporting Appellant's action on their contention that res judicata did not bar their claims," id. at para. 2); particularly is this so when the issue concerns a newly enacted statute, Carr v. Riddle, 136 Ohio App.3d 700, 737 N.E.2d 976 (Cuyahoga 2000) (assertions made under new statute, uninterpreted by any appellate rulings, were not violative of OH Civ R 11, even if court rejects position asserted); and
assertion of a claim that arguably would be lost if not advanced as a compulsory counterclaim, Lable & Co. v. Flowers, 104 Ohio App.3d 227, 661 N.E.2d 782 (Lorain 1995) (asserting racial discrimination counterclaim in forcible entry and detainer action violated neither OH Civ R 11 nor ORC 2323.51, inasmuch as defendant's attorney had good grounds for doing so and legitimate argument could be made that counterclaim was compulsory).
Sanctions - The standard employed - Revised Code 2323.51: Under ORC 2323.51, "frivolous conduct" in a civil action is sanctionable; conduct is frivolous if (emphasized language added by 2005 amendments):
(i) It obviously serves merely to harass or maliciously injure another party to the civil action or appeal or is for another improper purpose, including, but not limited to, causing unnecessary delay or a needless increase in the cost of litigation.
(ii) It is not warranted under existing law, cannot be supported by a good faith argument for an extension, modification, or reversal of existing law, or cannot be supported by a good faith argument for the establishment of new law.
(iii) The conduct consists of allegations or other factual contentions that have no evidentiary support, or, if specifically so identified, are not likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.
(iv) The conduct consists of denials or factual contentions that are not warranted by the evidence or, if specifically so identified, are not reasonably based on a lack of information or belief.
Harassment or malicious injury - 2323.51(A)(2)(a)(i): The inquiry in Ohio cases decided under the first prong of ORC 2323.51(A)(2)(a) -- actions intended to harass or maliciously injure -- is a factual one, and appellate courts regularly treat the trial court's findings on this issue with deference. E.g., Burrell v. Kassicieh, 128 Ohio App.3d 226, 714 N.E.2d 442 (Seneca 1998). (As opposed to the second prong -- whether the action is warranted by law or a good faith extension of existing law -- which in more recent decisions is treated as a question of law that the appellate court reviews de novo. E.g., Riston v. Butler, 149 Ohio App.3d 390, 2002 Ohio 2308, 777 N.E.2d 857 (Hamilton), discussed below.) At least on its face, the (a)(i) standard is a high one. To prove a violation it must be shown that the action taken "obviously serves merely to harass or maliciously injure another party." (Emphasis added.) Thus it appears that the conduct must clearly be for a singular purpose - "merely" to harass or to maliciously injure.
The harassment/malicious injury cases under ORC 2323.51(A)(2)(a)(i) include: Neubauer v. Ohio Remcon, Inc., 2006 Ohio 1481, 2006 Ohio App. LEXIS 1335 (Franklin) (affirming award of sanctions where “appellant refused to dismiss a groundless complaint in order to harass or maliciously injure appellee.” Id. at para. 45); Nationsrent v. Michael Constr. Co., 2002 Ohio 1380; 2002 Ohio App. LEXIS 1388 (Summit Mar. 27, 2002) (reversing award of sanctions under ORC 2323.51 where there is "a complete absence of any evidence that Appellant's actions served merely to harass or maliciously injure Appellee." Id. at *3); Master v. Chalko, No. 75973, 2000 Ohio App. LEXIS 2014 (Ohio App. Cuyahoga May 11, 2000) (sanction award affirmed; record "replete with evidence of malice" and reveals "overwhelming evidence that the appellants pursued litigation against the appellee in an abusive and vexatious manner. This is precisely the type of lawsuit for which the award of attorney fees under R.C. 2323.51 is designed." Id. at *9.); Evans v. Bossin, 107 Ohio App.3d 544, 669 N.E.2d 87 (Hamilton 1995) (sanction award affirmed; plaintiff's defamation action based on subjective belief, without any personal knowledge by plaintiff of the facts alleged; abuse-of-discretion standard of review employed; "we cannot say that the trial court abused its discretion in determining that there were no good grounds to assert any claim against Bossin for defamation, and that appellant's claim against Bossin was intended to harass and maliciously injure her." Id. at 546, 669 N.E.2d at 88); Masturzo v. Revere Rd. Synagogue, 98 Ohio App.3d 347, 648 N.E.2d 582 (Summit 1994) (naming of appellee as defendant in third-party complaint based on questionable information and then refusing to dismiss when presented with clear evidence that appellee was not proper party constituted "sufficient credible evidence on which the trial court could find that appellant and its attorney engaged in frivolous conduct pursuant to R.C. 2523.51(A)(2)(a) [sic 2323.51(A)(2)(a), now ORC 2323.51(A)(2)(a)(i)]." Id. at 353, 648 N.E.2d at 586). David v. Kaiser, 2004 Ohio 3149, 2004 Ohio App. LEXIS 2820 (Lucas) (affirming denial of sanctions motion; complaint not filed merely to harass and therefore argument under 2323.51(A)(2)(a)(1) without merit).
This subdivision also applies to conduct undertaken for any other "improper purpose," including causing unnecessary delay or needlessly increasing the cost of litigation. It is unclear whether the "obviously" and "merely" limitations apply to the "another improper purpose" portion of the susbsection as well.
Legally groundless conduct - 2323.51(A)(2)(a)(ii): One of the more thoughtful cases decided under ORC 2323.51 is the decision of the First District Court of Appeals (Painter, J.) in Riston v. Butler, 149 Ohio App.3d 390, 2002 Ohio 2308, 777 N.E.2d 857 (Hamilton). In Riston, the defendants sought ORC 2323.51 sanctions against plaintiffs' lawyer and his law firm for filing a complaint that defendants claimed was frivolous. In a careful opinion, the court of appeals reversed the trial court's imposition of sanctions against the lawyer and the firm.
At issue in Riston was whether the conduct was legally groundless under ORC 2323.51(A)(2)(a)(ii). Finding that this issue presents a question of law reviewable de novo (accord, e.g., State Farm Ins. Co. v. Peda, 2005 Ohio 3405, 2005 Ohio App. LEXIS 3152 (Lake); Mitchell v. Mitchell, 126 Ohio App.3d 500, 710 N.E.2d 793 (Montgomery 1998)) and overruling its prior opinions to the contrary, the court concluded that there was no violation of the rule. Using an objective standard (accord, e.g., Hickman v. Murray, No. CA 15030, 1996 Ohio App. LEXIS 1028 (Montgomery Mar. 22, 1996)), the Riston court found that the filing of the complaint was not legally groundless:
B. A Legally Groundless Claim Does Not Mean A Claim Not Well Grounded In Fact
* * * *
"The test, we find, is whether no reasonable lawyer would have brought the action in light of the existing law. In other words, a claim is frivolous if it is absolutely clear under the existing law that no reasonable lawyer could argue the claim." [quoting from Hickman v. Murray supra at *14.]
C. Frivolous Conduct Under the Legally Groundless Prong Means No Reasonable Lawyer Would Assert The Claim
Thus, we are not determining whether the complaint in this case was well grounded in fact. We are determining whether it was absolutely clear that no reasonable attorney would have alleged that Menke [the landlord] was negligent for injuries to the Riston children or had breached the warranty of habitability based on the client's representation of residency and the evidence the firm possessed. It is not frivolous conduct for an attorney to reasonably rely on the representations of his or her client. . . . Reliance on a client's representations after the client is warned about the need for accuracy and the client reviews the complaint to verify its accuracy, even where there is contradictory documentary evidence available, is not necessarily unreasonable.
* * * *
. . . We cannot say that it was absolutely clear that under existing law no reasonable attorney could have pursued the claim.
Riston, 149 Ohio App.3d 390, 2002 Ohio 2308, 777 N.E.2d 857, at paras. 30, 31, 33 (footnotes omitted); accord State Farm v. Peda supra (quoting Riston language). A similar test is set forth in 2 Restatement (Third) of the Law Governing Lawyers § 110 cmt. d, at 172 (2000): "A frivolous position is one that a lawyer of ordinary competence would recognize as so lacking in merit that there is no substantial possibility that the tribunal would accept it."
In Elsass v. Frank, 2002 Ohio 2947, 2002 Ohio App. LEXIS 2803 (Delaware), the court, affirming sanctions of attorney fees and costs, noted that the trial court had properly held a hearing pursuant to ORC 2323.51(B)(2) at which the trial court found that
"the Plaintiff's [Elsass's] conduct was frivolous in pursuing this lawsuit after signing a release and settling disputes with the Defendant. Certainly, the Defendant was adversely affected by the time and emotions expended in defending the suit after understanding that the matter was closed and having to engage counsel and incur substantial fees."
The trial court went on to state "[i]f any case cries out for sanctions for frivolous conduct, this case does."
Id. at ¶¶ 47-48. See also Rosser v. Terminix Int'l Co., 143 Ohio App.3d 157, 757 N.E.2d 820 (Hamilton 2001) (attempt to relitigate mandatory arbitration issue violated ORC 2323.51; "because the Rossers have frivolously attempted to circumvent the arbitration process without a good faith argument that would alter established law and the persuasive authority of their own [prior] appealed case, we affirm the trial court's imposition of sanctions." Id. at 160, 757 N.E.2d at 823). And in Ceol v. Zion Indus., Inc., 81 Ohio App.3d 286, 610 N.E.2d 1076 (Lorain 1992), the court of appeals reversed the lower court's holding that misinterpretation of the state of existing law does not constitute frivolous conduct and sent the case back for reconsideration of an award of attorney fees under ORC 2323.51. "The trial court erred, as a matter of law, by treating ignorance as an exception to R.C. 2323.51(A)(2)(b) [now ORC 2323.51(A)(2)(a)(ii)]." Id. at 293, 610 N.E.2d at 1080. (While the court found that the attorney for Ceol had engaged in frivolous conduct throughout the proceedings below, one of the examples given was that "[t]he complaint he signed contains numerous mistakes including references to Zion Industries as 'Pewter Mug' and Scott Ceol as 'her.'" Id. at 292, 610 N.E.2d at 1079. Surely mistakes of this sort should not be sanctionable as frivolous conduct under ORC 2323.51 or any other rule.) Accord, on the ignorance of the law point, Kozar v. Bio-Medical Applications, 2004 Ohio 4963, 2004 Ohio App. LEXIS 4516 (Summit) (“As a matter of law, an attorney’s ignorance of the law or failure to investigate the law is not deemed objectively reasonable,” citing Ceol).
Bringing suit under a nonexistent statute has been held to violate ORC 2323.51. See Seminatore v. Climaco, Climaco, Seminatore, Lefkowitz & Garofoli, 148 Ohio App.3d 613, 2002 Ohio 3892, 774 N.E.2d 1233 (Cuyahoga), where appellant's assignment of error directed to the trial court's imposition of sanctions against him was summarily overruled by the court of appeals, because appellant failed to provide either a transcript of proceedings or an OH App R 9 statement with respect to the sanctions hearing. The opinion of Judge Karpinski, dissenting in part (but not on the sanctions issue), provides more detail concerning what occurred in the trial court:
In his complaint [filed on November 15, 1999], appellant . . . made a fraud claim under R.C. 1777.99, which was repealed on July 1, 1996.
Despite the fact that the . . . statute embodied in R.C. 1777.99 had been repealed, appellant filed a motion for summary judgment on that claim. Appellees opposed the motion and simultaneously filed a motion for sanctions, in which they argued that appellant should be sanctioned, pursuant to R.C. 2323.51, for filing a claim that no longer existed under Ohio law. The trial court denied appellant's motion for summary judgment and granted appellees' motion for sanctions. Following a sanctions hearing, the court granted sanctions against appellant in the amount of $1,732.50 . . . .
Id. at ¶¶ 42-43.
In contrast, an award of sanctions under ORC 2323.51 was reversed where the court found that
legal grounds did exist for Appellant's complaint, and it therefore follows that the claim was warranted under existing law. Accordingly, there is insufficient evidence to support the trial court's finding that Appellant's claim constituted frivolous conduct under the second prong of R.C. 2323.51 [unwarranted by law].
Nationsrent v. Michael Constr. Co., 2002 Ohio 1380, 2002 Ohio App. LEXIS 1388, at *10 (Summit Mar. 27, 2002). Accord Harmon v. Adams, 2002 Ohio 2103, Ohio App. LEXIS 2048 (Union) (claim that suit not barred by res judicata supported by arguable extension of cited authority).
Unsupported or unwarranted factual contentions or denials - 2323.51(A)(2)(a)(iii) & (iv): In addressing unwarranted factual assertions, the statute seems to apply different standards for "allegations or other factual contentions" (presumably all contentions involved in advancing a claim) and "denials or factual contentions" (presumably all contentions involved in defending a claim). In the former situation, sanctions apply if a party makes allegations or other factual contentions that (1) "have no evidentiary support" (emphasis added) or (2) specifically identify the matter as one where the necessary factual support is "likely" to come after a reasonable opportunity for discovery, but in fact it is not "likely." In the latter situation, sanctions apply if a party makes denials or other factual contentions that are (1) not warranted by the evidence (emphasis added) or (2) specifically identify the matter as one where the response is made on "information and belief," but that assertion is unreasonable.
Whether these seemingly fine distinctions make a difference is unclear, for there is only one case touching on the issue, under either these 2005 provisions or the virtually identical provisions in the short-lived 1996 Tort Reform Act. That case seized on the "factual contentions that are not warranted by the evidence" language of subpart (iv); there was no discussion of the test set forth in subpart (iii). See Shields v. Englewood, 172 Ohio App.3d 620, 2007 Ohio 3165, 876 N.E.2d 972 (Montgomery). A further hint as to how they may be read can perhaps be gleaned from those few cases, primarily from the Tenth District Court of Appeals (Franklin County), that read "frivolous conduct" as including unsupported factual assertions, even though the statute at that time did not expressly include such within the statutory definition. See All Climate Heating & Cooling, Inc. v. Zee Props., Inc., No. 01 AP-784, 2002 Ohio App. LEXIS 1951 (Franklin Apr. 25, 2002); Crooks v. Consol. Stores Corp., No. 98 AP-83, 1999 Ohio App. LEXIS 350 (Franklin Feb. 4, 1999); Jones v. Billingham, 105 Ohio App.3d 8, 663 N.E.2d 657 (Montgomery 1995); Rossman & Co. v. Donaldson, No. 94 APE03-388, 1994 Ohio App. LEXIS 5535 (Franklin Dec. 6, 1994). These cases talk in terms of claims unsubstantiated by evidence and failure to make a reasonable investigation of the facts, as well as the law, as constituting frivolous conduct violative of ORC 2323.51.
Sanctions - The standard employed - Appellate Rule 23: Under OH App R 23, the inquiry is whether the appeal is "frivolous"; if the court of appeals determines that it is, "the appellant" (not appellant's counsel) may be sanctioned. See Contel Credit Corp. v. Rosenblatt, 43 Ohio App.3d 113, 539 N.E.2d 708 (Cuyahoga 1988) (appeal summarily rejected for noncompliance with OH App R 12(A); court sua sponte imposed sanctions on appellant under OH App R 23). The case law has determined that an appeal is "frivolous" in the OH App R 23 sense if the appeal presents no reasonable question for review. See, e.g., Siemienkowski v. State Auto Mut. Ins. Co., 2006 Ohio 4122, 2006 Ohio App. LEXIS 4072 (Cuyahoga), imposing Rule 23 sanctions sua sponte, noting the inherent power of court to do so. After being sanctioned $30,000 under ORC 2323.51 in prior litigation for frivolous conduct appellants “proceeded to instigate additional meritless litigation in the instant case,” id. at para. 8, consisting of the claim that the defendant should reimburse these costs under their homeowners insurance policy(!) Undaunted, after the trial court “summarily” granted summary judgment to State Farm, the plaintiffs appealed. In the words of the Eighth District Court of Appeals, “[a]ppellants need to take a step back and stop making a mockery of the American civil justice system.” Id. at para. 9. Likewise, in Mitchell v. Backer, 135 Ohio App.3d 775, 735 N.E.2d 919 (Hamilton 1999), the court sua sponte found that, after two prior appeals raising the same issue, appellant's third effort was frivolous:
[W]e can only conclude that Backer is refusing to understand or to accept the determination that the contract was valid, and that he is merely rehashing arguments that we have rejected in earlier cases. This is now the third appearance of this case in this court -- all on the same issue. While Backer may not like our rulings, he may not continue appeals that present no reasonable question to review.
Id. at 777, 735 N.E.2d at 921. Accord Rust v. Harris-Gordon, 2004 Ohio 1636, 2004 Ohio App. LEXIS 1470 (Lucas) (granting motion for Rule 23 sanctions; ‘[w]e have already granted sanctions against appellant for similar actions once before in a related case. . . . Rust files materials based solely on what he wishes the law were, rather than on what the law is.” Id. at para. 55.); Tessler v. Ayer, 108 Ohio App.3d 47, 669 N.E.2d 891 (Hamilton 1995); Rezzano v. Thom's Inc., No. 57050, 1990 Ohio App. LEXIS 2231, at *5 (Cuyahoga June 7, 1990) (sanctions imposed sua sponte; "there was no reasonable cause for the appeal" on issue precluded by prior litigation). See Riley v. Supervalu Holdings, Inc., 2005 Ohio 6996, 2005 Ohio App. LEXIS 6318 (Hamilton) (Rule 23 sanctions imposed because appellant ignored controlling statutes and case law).
As the Sixth District Court of Appeals put it in denying sanctions in Franklin Park Lincoln-Mercury, Inc. v. First Fed. Sav. & Loan Ass'n, 73 Ohio App.3d 452, 597 N.E.2d 1120 (Lucas 1991), sanctions under OH App R 23 are allowed only when the right thereto is unquestioned and there is no semblance of a defense. See Kassmakis v. Dasani, 2004 Ohio App. LEXIS 5898 (Lucas) (sanctions motion denied where appellant, though unsuccessful, raised argument supported by case law); Moshos v. Moshos, 2004 Ohio 4932, 2004 Ohio App. LEXIS 4494 (Greene) (reasonable question presented by appeal; appellee's request for OH App R 23 sanctions denied); Haupricht v. Davis Farm Servs., Inc., No. F-95-013, 1995 Ohio App. LEXIS 4819 (Fulton Nov. 3, 1995) (same; appellants' argument "not without merit").
Another appellate court sanction case worthy of note is Starks v. Choice Hotels Int’l, 175 Ohio App.3d 510, 2007 Ohio 1019, 887 N.E.2d 1244 (Hamilton). In Starks, the plaintiff motel guest, who overslept and missed the check-out deadline, sued the motel franchisors (but not the franchisee) to recover his $46 daily rate together with $750,000 in damages, and, in the words of the court, “free lodging for life (at the Econo Lodge!) . . . .” Id. at para. 5. On various grounds (lack of personal jurisdiction, improper venue, wrong defendants), the court of appeals affirmed the trial court’s dismissal of the suit. Finding the suit frivolous (“we know one when we see one,” id. at para. 1), the First District Court of Appeals, through Judge Painter, took a somewhat unusual approach in imposing sanctions. Instead of invoking Rule 23, it granted each appellee a judgment in the amount of $1,250 under ORC 2505.35 which permits the imposition of such amount unless there is reasonable cause for the appeal. The court’s reason for doing so was that
[t]hough the fees [incurred defending the baseless lawsuit and appeal] are undoubtedly more, we use the statute rather than App.R. 23 so that no more time will be spent by counsel in preparing fee affidavits. But if counsel would like to submit those affidavits, we will certainly consider granting any reasonable fees.
Id. at para. 17. Accord Hamrick v. Wellman Prods. Group, 2004 Ohio 5477, 2004 Ohio App. LEXIS 4694 (Medina) (citing Rule 23 authority to impose sanctions for frivolous appeal, but imposing same “[i]n accordance with R.C. 2503.35” id. at para. 46).
Sanctions - The standard employed - Supreme Court Rule XIV(5)(A): SCt R XIV(5)(A) can be invoked, by a party on motion or by the Court sua sponte, if "an appeal or other action is frivolous or is prosecuted for delay, harassment, or any other improper purpose . . . ." An appeal or other action "shall be considered frivolous if it is not reasonably well-grounded in fact or warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law." Id.
Sanctions have been entered under what is now SCt R XIV(5)(A) in nine cases; two are particularly worthy of note. The first, State ex rel. Grendell v. Davidson, 86 Ohio St.3d 629, 716 N.E.2d 704 (1999), was a mandamus action in which one of the relators (a state representative) challenged the validity of an appropriations bill (it failed to provide funding for an airport in the relator's district) on the ground, inter alia, that the General Assembly had not followed its own rules in passing the bill. Citing well-established authority that the legislature's rules and its adherence or nonadherence to same are the exclusive province of the legislature ("it is well settled that, in considering the validity of a statute, courts will not inquire into whether the legislature complied with its own rules in enacting the statute, as long as no constitutional provision is violated," id. at 633, 716 N.E.2d at 708), the Supreme Court found the action frivolous and imposed sanctions on relators' two attorneys (one of whom was relator's husband; both attorneys were also relators). The Court also found that harassment was the only apparent rationale for another allegation -- that the actions of the chairman of the joint committee on the bill were criminal and constituted the offenses of retaliation, intimidation, and coercion. The Court further noted that these same attorneys had only recently filed another meritless extraordinary writ case. (The decision awarding fees and expenses is reported at 88 Ohio St.3d 1413, 723 N.E.2d 119 (2000).)
Undeterred, the lawyers then filed a federal action seeking a declaratory judgment and injunction to the effect that what is now SCt R XIV(5)(A) was unconstitutional on its face; while the Sixth Circuit rejected the claim on Article III standing grounds, the federal court left no doubt that it had little sympathy for the claimant's arguments, either on the merits before the Ohio Supreme Court or before the Sixth Circuit on their claim of unconstitutionality. See Grendell v. Ohio Supreme Court, 252 F.3d 828, 831, 838 (6th Cir. 2001).
In the second noteworthy case imposing sanctions under SCt R XIV(5)(A), State ex rel. Kreps v. Christiansen, 88 Ohio St.3d 313, 725 N.E.2d 663 (2000), the Court found that the appeal of a denial of claims for extraordinary relief against four Ohio judges (which claims raised issues that should have been pursued by appeal rather than by extraordinary writ) was frivolous, in that it lacked any reasonably well-grounded basis in fact or existing law, or in any good-faith argument for extension, modification, or reversal of existing law. The Supreme Court imposed sanctions against the appellant, appearing pro se, for this conduct, even though the appellee judges had not requested them.
The other Rule XIV(5)(A) sanction cases are State ex rel. Howard v. Doneghy, 102 Ohio St.3d 355, 2004 Ohio 3207, 810 N.E.2d 958 (appeal found frivilous); State ex rel. Howard v. Indus. Comm'n, 101 Ohio St.3d 1465, 2004 Ohio 819, 804 N.E.2d 39 (appeal; sanctions imposed; misconduct not specified); State ex rel. Howard v. Zimmerman, 99 Ohio St.3d 1535, 2003 Ohio 4753, 795 N.E.2d 676 (mandamus action found frivolous); State ex rel. Forsyth v. Brigner, 86 Ohio St.3d 585, 715 N.E.2d 1164 (1999) (appeal found frivolous); Edbow, Inc. v. Franklin County Bd. of Revision, 86 Ohio St.3d 1207, 712 N.E.2d 757 (1999) (appeal found frivolous); Office of Disciplinary Counsel v. Pagac, 80 Ohio St.3d 1451, 686 N.E.2d 524 (1997) (motion found frivolous); Smith v. Serva-Portion, Inc., 78 Ohio St.3d 1504, 679 N.E.2d 5 (1997) (appeals found frivilous). See also, Rust v. Harris-Gordon, 103 Ohio St.3d 1431, 2004 Ohio 4620, 814 N.E.2d 493 (granting motion for sanctions for frivolous action; Rule XIV(5)(A) not cited).
Sanctions - The remedies available: The standard remedy is attorney fees, but each of the provisions also authorizes a broader range of sanctions.
Sanctions - The remedies available - Civil Rule 11: Under OH Civ R 11, the court may take "appropriate action, including an award to the opposing party of expenses and reasonable attorney fees incurred in bringing any motion under this rule." For a typical OH Civ R 11 attorney-fee case, see Beechler v. Peterman, 2001 Ohio 4064; 2001 Ohio App. LEXIS 4922 (Franklin Nov. 6, 2001) (sanction of $3,000 in attorney fees imposed; fifteen hours at $200 an hour found reasonable and related to attorney's work on behalf of defendant opposing frivolous legal-malpractice claim). Ohio courts have held also that the award of attorney fees as sanctions under OH Civ R 11 (and ORC 2323.51) can properly include the time spent by a law clerk on the matter. E.g., All Climate Heating & Cooling, Inc. v. Zee Props., Inc., No. 01 AP-74, 2002 Ohio App. LEXIS 1951 (Franklin Apr. 25, 2002). (Note, however, in the context of cases dealing with the question of excessive fees under former OH DR 2-106(A), that
[c]osts of litigation generally do not include secretarial charges or fees of paraprofessionals. Those costs are considered to be normal overhead subsumed in the percentage fee.
. . . If an attorney charges separately for a legal assistant, the legal assistant's hourly charges should be stated and agreed to in writing.
Columbus Bar Ass'n v. Brooks, 87 Ohio St.3d 344, 345-46, 721 N.E.2d 23, 25 (1999)). See also section 1.5:410 at "Expenses and the reasonableness requirement.") For an OH Civ R 11 case in which the "appropriate action" included sanctions in addition to attorney fees and costs, see Haney v. Trout, Nos. 00AP-1448, 00 AP-1457, 2002 Ohio App. LEXIS 501 (Franklin Feb. 12, 2002) (affirming, in addition to attorney fees, imposition of sanctions requiring that offending attorney attend certain CLE seminars, that he read the Rules of Civil Procedure, and that he file a report with the trial court regarding his understanding of those rules).
While OH Civ R 11 does not speak directly to the question whether a hearing is required on a sanctions motion, most cases hold that a trial court should not impose sanctions without first holding a hearing. E.g., Rondini v. Seman, 2002 Ohio 6590, Ohio App. LEXIS 6303 (Lake); Millikin v. Good Samaritan Hosp. & Health Ctr., No. 13770, 1993 Ohio App. LEXIS 3692 (Montgomery July 22, 1993) (lawyer given no opportunity to show that he did not act willfully; sanctions reversed); see Crile v. Hall, No. 60926, 1991 Ohio App. LEXIS 5794 (Cuyahoga Dec. 5, 1991) (hearing held; sanctions affirmed). But see Schwartz v. Gen. Accident Ins., 91 Ohio App.3d 603, 632 N.E.2d 1379 (Hamilton 1993) (OH Civ R 11 "does not contain a provision mandating that a hearing be held prior to granting a motion for sanctions." Id. at 606, 632 N.E.2d at 1381.). Some courts have held more broadly that a hearing should be held in any event to allow the presentation of evidence on the violation issue. Schnorf v. Klingman, No. L-94-247, 1996 Ohio App. LEXIS 417 (Lucas Feb. 9, 1996) (hearing not held; order denying sanctions reversed and remanded to give movant opportunity to conduct discovery prior to hearing); Woodworth v. Huntington Nat'l Bank, No. 95 APE02-219, 1995 Ohio App. LEXIS 5424 (Franklin Dec. 7, 1995) (denial of request for hearing by movant reversed; "[w]here there exists an arguable basis for an award of sanctions, a trial court must hold a hearing on the issue," id. at 15). Accord Donaldson v. Todd, 174 Ohio App.3d 117, 2007 Ohio 6504, 881 N.E.2d 280 (Franklin) (hearing required if motion has "arguable merit," citing, inter alia, Woodworth); Mitchell v. W. Reserve Area Agency, 2004 Ohio 4353, 2004 Ohio App. LEXIS 3952 (Cuyahoga) (demonstration that sanctions motion had “actual merit” requires hearing).
No hearing need be held, however, in denying sanctions "where the court has sufficient knowledge of the circumstances for the denial of the requested relief and the hearing would be perfunctory, meaningless or redundant." Goff v. Ameritrust Co., Nos. 65196, 66016, 1994 Ohio App. LEXIS 1916, at *30 (Cuyahoga May 5, 1994). Accord Seifert v. Polaris Joint Voc. Sch., No. 65840, 1994 Ohio App. LEXIS 5240, at *9 (Cuyahoga Nov. 23, 1994) ("A trial court may dismiss the motion [without a hearing] if it has sufficient knowledge that sanctions under Civ. R. 11 are not appropriate"). See Adlaka v. Giannini, 2006 Ohio 4611, 2006 Ohio App. LEXIS 4574 (Mahoning) (no abuse of discretion in denying sanctions against attorney-defendant without hearing; although reasonable jurist “could” have reprimanded [him] or awarded some minimal expenses to plaintiff, “we do not substitute our judgment for that of the trial court on this matter.” Id. at para. 46.).
An interesting decision holding that the trial court did not abuse its discretion in imposing sanctions under OH Civ R 11 without holding a hearing is Jackson v. Bellomy, 2002 Ohio 6495, 2002 Ohio App. LEXIS 6279 (Franklin). While recognizing that the normal rule (reflected, inter alia, in its own prior decisions) is that a hearing should be held in such circumstances, the court reasoned that
this case differs substantially from those cases in which we ordered a hearing prior to an award of sanctions. The cases we reviewed in the past involved a determination of whether a pleading or motion contained a suspect argument of law which may or may not have been supported by good grounds based on the signor's knowledge or information and belief. Therefore, investigating the attorney's underlying motive for including a suspect legal argument was necessary for a finding of "willfulness" under the rule.
Id. at ¶ 75. In this case, however, the language at issue was the final sentence of the rule, permitting sanctions "if scandalous or indecent matter is inserted." As the court read this sentence of the rule, "no separate finding of willfulness is necessary, if the insertion of such material into a pleading or other document has no proper motivation." Id. at ¶ 76. [Given the court's basis of distinction, its choice of the final word in the quoted language is unfortunate.] The Jackson court found further support for its reading in Riston v. Butler, 149 Ohio App.3d 390, 2002 Ohio 2308, 777 N.E.2d 857, at ¶ 9 (Hamilton), stating that a lawyer can be subjected to sanction under the rule if "the rule is willfully violated, or if a scandalous or indecent matter as been inserted," Jackson at ¶ 76 (emphasis added by Jackson court).
The cases are virtually unanimous in concluding that OH Civ R 11 (and ORC 2323.51) motions, which raise issues collateral to and independent of the underlying action, can be entertained by the trial court, even if it has lost jurisdiction of the underlying action by way of
Appeal of final judgment, Thom's, Inc. v. Rezzano, Nos. 54541, 54671, 54691, 1988 Ohio App. LEXIS 4538 (Cuyahoga Nov. 10, 1988) (court had authority to consider OH Civ R 11 sanctions motion after final judgment in appealed action);
Voluntary dismissal, e.g., Williams v. Thamann, 173 Ohio App. 426, 2007 Ohio 4320, 878 N.E.2d 1070 (Hamilton) (court retains limited jurisdiction to consider sanctions under OH Civ R 11 and ORC 2323.51 after underlying action voluntarily dismissed); Burrell v. Kassicieh, 128 Ohio App.3d 226, 714 N.E.2d 442 (Seneca 1998) (same); DeCarlo v. Estate of Maxwell, 167 Ohio App.3d 131, 2006 Ohio 3116, 854 N.E.2d 230 (Summit) (reversing denial of 2323.51 sanctions without hearing, after voluntary dismissal “with prejudice,” id. at para. 2); see State ex rel. Hummel v. Sadler, 96 Ohio St.3d 84, 2002 Ohio 3605, 771 N.E.2d 853, at para. 23 (citing with approval decisions so holding, in case involving imposition of sanctions under OH Civ R 45(E) after voluntary dismissal);
or even if it never had jurisdiction of the underlying action in the first place. Flatinger v. Flatinger, 2002 Ohio 3781, 2002 Ohio App. LEXIS 3829 (Franklin) ("A contrary conclusion would prevent a trial court from sanctioning a litigant who intentionally files actions over which the trial court lacks subject matter jurisdiction solely for the purpose of harassing the opposing party." Id. at ¶ 7.). Accord Goff v. Ameritrust Co., Nos. 65196, 66016, 1994 Ohio App. LEXIS 1916, at *25 (Cuyahoga May 5, 1994) ("Even in the absence of subject matter jurisdiction, as in the present case, a trial court retains inherent authority to impose Civ. R. 11 sanctions.").
Sanctions - The remedies available - Revised Code 2323.51: Under ORC 2323.51, sanctions may include the payment "to any party to the civil action who was adversely affected by frivolous conduct" of "court costs, reasonable attorney's fees, and other reasonable expenses incurred in connection with the civil action . . . ." ORC 2323.51(B)(1). The movant for 2323.51 fees "'must affirmatively demonstrate that he or she incurred additional attorney's fees as a direct, identifiable result of defending the frivolous conduct in particular.'" Stohlman v. Hall, 158 Ohio App.3d 499, 2004 Ohio 5219, 817 N.E.2d 118, at para. 8 (Cuyahoga) (quoting Wiltberger v. Davis, 110 Ohio App.3d 46, 54, 673 N.E.2d 628, 633 (Franklin 1996). ORC 2323.51 does not, however, authorize an award based on stress or lost time, or for “miscellaneous.” Orbit Elecs., Inc. v. Helm Instrument Co., 167 Ohio App.3d 301, 2006 2317, 855 N.E.2d 91 (Cuyahoga).
The Supreme Court has expressly held that the "reasonable expenses incurred" may properly include the fees incurred in prosecuting a motion for ORC 2323.51 sanctions. Ron Scheiderer & Assocs. v. City of London, 81 Ohio St.3d 94, 689 N.E.2d 552 (1998) (syllabus). But while a court has the discretion to include expenses incurred in prosecuting a 2323.51 motion, there is no requirement that a court do so. Stohlman supra. Moreover, if the "party adversely affected by frivolous conduct" is a pro se litigant, he or she is not entitled to attorney fees -- ORC 2323.51 "provides for attorney fees, not compensation for pro se litigants." State ex rel. Freeman v. Wilkinson, 64 Ohio St.3d 516, 517-18, 597 N.E.2d 126, 127 (1992) (nonlawyer litigant; query whether the same rule applies when the pro se litigant is an attorney).
Ohio intermediate appellate and lower court decisions answering our query when the pro se litigant is a lawyer have been mixed. There is one appellate decision, Mikhael v. Gallup, 2006 Ohio 3917, 2006 Ohio App. LEXIS 3884 (Summit); it holds that attorney fees could be awarded because (1) unlike Freeman, the recipient was an attorney and (2) the lawyer was representing, in addition to himself, his law firm and clients whom he had represented in the underlying case and who were codefendants. The trial court decisions are split. The earlier one, Hillyer v. Roth, 74 Ohio Misc.2d 127, 660 N.E.2d 534 (C.P. Lucas), concluded that Freeman required that attorney fees could not be awarded, even if the pro se litigant is an attorney. The most recent case is McClure v. Fischer Attached Homes, 146 Ohio Misc.2d 70, 2008 Ohio 2677, 889 N.E.2d 612 (C.P. Clermont), and it sides with those decisions permitting recovery of attorney fees. Note that in all of these cases awarding fees, the lawyer was representing not only himself but also his firm; there does not appear to be an Ohio case where a lawyer, proceeding pro se, sought recovery of 2323.51 fees only on his own behalf.
Pursuant to ORC 2323.51(B)(3), the amount of attorney fees awarded shall not exceed (a) in a contingent-fee case, an amount corresponding to reasonable fees had the party been represented on an hourly-fee or other noncontingent-fee basis; (b) in cases other than those where the fee is contingent, the attorney fees that were reasonably incurred by the party. A party seeking sanctions pursuant to ORC 2323.51 may, pursuant to division (B)(1), file a motion for sanctions not more than 30 days after entry of final judgment. See Soler v. Evans, St. Clair & Kelsey, 94 Ohio St.3d 432, 763 N.E.2d 1169 (2002) (syllabus one) ("judgment" in statute means a final appealable order); Kudukis v. Mascinskas, 2005 Ohio 2465, 2005 Ohio App. LEXIS 2347 (Cuyahoga) (applying Soler; rejecting argument that statutory period for filing motion runs from last appellate decision). Under the prior version of the statute, courts held that, in the absence of a motion pursuant to ORC 2323.51(B)(2), sanctions under the statute could not be imposed. Huffman v. Medina County Child Support Enforcement Agency, 2004 Ohio 729, 2004 Ohio App. LEXIS 680 (Medina); Corder v. Ohio Dep't of Rehab. & Corrs., 114 Ohio App.3d 360, 683 N.E.2d 121 (Franklin 1996). The 2005 version of (B)(2) expressly authorizes sanctions pursuant to motion under (B)(1) “or on the court's own initiative."
The court may not award sanctions under ORC 2323.51 without first holding a hearing on the issue. ORC 2323.51(B)(2). Shields v. Englewood, 172 Ohio App.3d 620, 2007 Ohio 3165, 876 N.E.2d 972, at para. 50 (Montgomery) ("if attorneys fees are to be ultimately awarded, then a hearing indeed must be held in accordance with subsections (a), (b), and (c) of R.C. 2323.51(B)(2)"); Young v. Russ, 2005 Ohio 3397, 2005 Ohio App. LEXIS 3144 (Lake) (reversing trial court’s order finding 2323.51 violation without hearing); Winkler Bldg. Partnership v. Fairview Shipping Center Corp., 2003 Ohio 7073, 2003 Ohio App. LEXIS 6424 (Cuyahoga) (sanctions award without hearing reversed; “[a] court may not award sanctions without first holding a hearing to allow the parties to present evidence in support of or in opposition to an award of attorney fees and the amount of the award.” Id. at para. 12); Burrell v. Kassicieh, 128 Ohio App.3d 226, 231, 714 N.E.2d 442, 446 (Seneca 1998) ("[w]hen a court awards attorney fees pursuant to R.C. 2323.51, a hearing must be held).
As to whether the court may deny an ORC 2323.51 motion for sanctions without holding a hearing, compare, e.g., Sidenstricker v. Miller Pavement Maint., Inc., 2001 Ohio 4111; 2001 Ohio App. LEXIS 4793 (Franklin Oct. 25, 2001) (it may: citing case law), State Farm Ins. Cos. V. Peda, 2005 Ohio 3405, 2005 Ohio App. LEXIS 3152 (Lake) (no hearing required where issue to be sealed “is a legal issue which could be determined solely by recourse to the pleadings, briefs, and applicable law,” id. at para. 31); Wilson v. Lynch & Lynch Co., L.P.A., 99 Ohio App.3d 760, 651 N.E.2d 1328 (Geauga 1994); (same; argument that claims not warranted by existing law is “clearly one which the trial court could fully review without benefit of a hearing” id. at 771, 651 N.E.2d at 1335); and Seifert v. Polaris Joint Voc. Sch., No. 65840, 1994 Ohio App. LEXIS 5240, at *8 (Cuyahoga Nov. 23, 1994) (it may "if it determines that a hearing is perfunctory, meaningless, and redundant"), with Borowski v. State Chem. Mfg. Co., 97 Ohio App.3d 635, 647 N.E.2d 230 (Cuyahoga 1994) (it may not; citing prior Eighth District cases). One court, in dictum, apparently thought that ORC 2323.51 "expressly require[s] a hearing when declining to impose sanctions," but there is no such language in the statute. See Goff v. Ameritrust Co., Nos. 65196, 66016, 1994 Ohio App. LEXIS 1916, at *30 (Cuyahoga May 5, 1994). [This may well be a typographical error; perhaps what the court said (or intended to say) was: "unlike the frivolous conduct statute, R.C. 2323.51, Civ. R. 11 does not expressly require a hearing when deciding to impose sanctions," id. (emphasis added), which would be a correct statement of the law.] Virtually all of the authority supporting the view that a hearing is required, even when the motion is denied, came from the Eighth District Court of Appeals. That line of authority was jettisoned by the Eighth District in Pisani v. Pisani, 101 Ohio App.3d 83, 654 N.E.2d 1355 (Cuyahoga 1995), where the court cited an extensive list of its prior decisions holding that a hearing was required, and found them out of step with every other appellate district that had considered the issue:
In order to reconcile our own decisions and those of our sister appellate courts, we now hold that a hearing is mandatory under R.C. 2323.51 only when sanctions are imposed and is not necessary when the court determines, upon consideration of the motion and in its discretion, that it lacks merit.
Id. at 88, 654 N.E.2d at 1358. Of the many subsequent Eighth District opinions following Pisani, see, e.g. Beal v. Allen, 2002 Ohio 4054, 2002 Ohio App. LEXIS 4246 (Cuyahoga). But if the party seeking sanctions demonstrates “actual merit” the court has a duty to conduct a hearing on the motion. Mitchell v. Reserve Area Agency, 2004 Ohio 4353, 2004 Ohio App. LEXIS 3952, at para. 14 (Cuyahoga) (so construing Pisani).
What if the movant has demonstrated "arguable merit" for her sanctions motion? The answer in such cases, at least in Franklin and Summit counties, is that a hearing must be held; "'the trial court may deny an oral hearing only to those motions which "on their face reveal the lack of a triable issue"'"), Donaldson v. Todd, 174 Ohio App.3d 117, 2007 Ohio 6504, 881 N.E.2d 280 (Franklin), at para. 9 (quoting from Cortext Ltd. v. Pride Media, Ltd., 2003 WL 22434592 ( Ohio App. Franklin); arguable merit present; hearing required); DeCarlo v. Estate of Maxwell, 167 Ohio App.3d 131, 2006 Ohio 3116, 854 N.E.2d 230 (same; “[t]he only way a court is excused from [holding a hearing] is if it finds no basis whatsoever for the imposition of sanctions.” Id. at para. 6.).
Sanctions - The remedies available - Appellate Rule 23: OH App R 23 states that the court of appeals may direct "appellant to pay reasonable expenses of the appellee including attorney fees and costs." See, e.g., Tessler v. Ayer, 108 Ohio App.3d 47, 669 N.E.2d 891 (Hamilton 1995) (attorney fees and costs awarded); Contel Credit Corp. v. Rosenblatt, 43 Ohio App.3d 113, 539 N.E.2d 708 (Cuyahoga 1988) (payment of attorney fees ordered). In Riley v. Supervalue Holdings, Inc., 2005 Ohio 6996, 2005 Ohio App. LEXIS 6318 (Hamilton), the court awarded attorney fees in an amount of $2,500; Judge Painter dissenting in part because “[i]f fees are awarded at all, they should at least approximate the amount actually expended – which, according to counsel’s affidavit, was $31,035.46.” Id. at para. 31.
Appellate courts have the power to impose sanctions under this provision sua sponte. Siemienkowski v. State Auto Mut. Ins. Co., 2006 Ohio 4122, 2006 Ohio App. LEXIS 4072 (Cuyahoga); Contel Credit Corp. v. Rosenblatt, 43 Ohio App.3d 113, 539 N.E.2d 708 (Cuyahoga); see Mitchell v. Backer, 135 Ohio App.3d 775, 735 N.E.2d 919 (Hamilton 1999); Sarossy v. Sarossy, No. 67943, 1995 Ohio App. LEXIS 1627 (Cuyahoga Apr. 20, 1995). (Compare Thom’s Inc. v. Rezzano, Nos. 54641, 54671, 54691, 1988 Ohio App. LEXIS 4538 (Cuyahoga Nov. 10, 1988) (sua sponte imposition of OH Civ R 11 sanctions without hearing reversed; hearing required).) But, in the court’s discretion, a post-sanction evidentiary submission typically is allowed concerning the reasonableness of the amount of the Rule 23 sanction to be imposed. Siemienkowski; Mitchell; Sarossy. If the appellate court does not act sua sponte, numerous decisions reflect the view that Rule 23 sanctions will not be considered in the absence of a motion to impose same. E.g., Barbato v. Mercy Med. Center, 2005 Ohio 5219, 2005 Ohio App. LEXIS 4725 (Stark); Carrollton Exempted Village School Dist. v. Ohio Ass’n of Public School Employees, 2004 Ohio 1385, 2004 Ohio App. LEXIS 1247 (Carroll); In re Estate of Wilhelm, 2003 Ohio 4468, 2003 Ohio App. LEXIS 3963 (Mahoning); Richards v. Beechmont Volvo, 127 Ohio App.3d 188, 711 N.E.2d 1088 (1998) (Hamilton) (“A paragraph in a responsive brief is insufficient to raise the issue before this court, and we therefore decline to consider it.” Id. at 192, 711 N.E.2d at 1091.). Even when the sanctions issue is presented by motion, the appellate courts consider the matter to be within their own sound discretion and apparently do not hold a hearing or take evidentiary submissions, e.g., Cominsky v. Malner, 2004 Ohio 2202, 2004 Ohio App. LEXIS 1954 (Lake), other than on the reasonableness of the sanction to be imposed, e.g., Stuller v. Price, 2003 Ohio 6826, 2003 Ohio App. LEXIS 6127 (Franklin).
Sanctions - The remedies available - Supreme Court Rule XIV(5)(A): SCt R XIV(5)(A) provides that an appropriate sanction may include "an award to the opposing party of reasonable expenses, reasonable attorney fees, costs or double costs, and any other sanction the Supreme Court considers just." At least two of the nine cases invoking the rule since its promulgation in 1997 have imposed sanctions against the offending attorneys. See State ex rel. Kreps v. Christiansen, 88 Ohio St.3d 313, 725 N.E.2d 663 (2000) (sanctions imposed sua sponte against attorney-appellant acting pro se; appellees ordered to submit detailed documentation of their counsel's expenses and attorney fees that have been or will be paid by appellee-judges, the city of Toledo, and/or Lucas County in connection with the appeal); State ex rel. Grendell v. Davidson, 86 Ohio St.3d 629, 716 N.E.2d 704 (1999) (motion to impose sanctions on relators' attorneys granted; respondents ordered to submit detailed bill and documentation of "expenses and approximate amount of compensation and fringe benefits, if any, of their counsel that have been or will be paid by the state in connection with the legal services rendered in defending against the frivolous claims raised by relators." Id. at 636, 716 N.E.2d at 711). Three other cases imposed sanctions on the same pro se litigant, but it is unclear whether he was an attorney. See State ex rel. Howard v. Doneghy, 102 Ohio St.3d 355, 2004 Ohio 3207, 810 N.E.2d 958 (attorney fees and expenses); State ex rel. Howard v. Indus. Comm'n, 101 Ohio St.3d 1465, 2004 Ohio 819, 804 N.E.2d 39 (attorney fees); State ex rel. Howard v. Zimmerman, 99 Ohio St.3d 1535, 2003 Ohio 4753, 795 N.E.2d 676 (mandamus action found frivolous; all pending motions filed by relator stricken; relator prohibited from filing additional documents in previously decided related cases; clerk ordered not to accept further appeals or original actions by relator unless accompanied by required docket fee and security for costs). In the other SCt R XIV(5) cases, sanctions were imposed on parties: State ex rel. Forsyth v. Brigner, 86 Ohio St.3d 585, 715 N.E.2d 1164 (1999) (in forma pauperis status abused; clerk ordered not to accept further appeals or original actions unless accompanied by required docket fee and security deposit); Edbow, Inc. v. Franklin County Bd. of Revision, 86 Ohio St.3d 1207, 712 N.E.2d 757 (1999) (reasonable attorney fees awarded to appellee); Office of Disciplinary Counsel v. Pagac, 80 Ohio St.3d 1451, 686 N.E.2d 524 (1997) (unspecified motion of respondent found frivolous; motion stricken and respondent, a previously disbarred attorney presumably acting pro se, sanctioned in amount of $500, to be paid into Attorney Registration Fund); Smith v. Serva-Portion, Inc., 78 Ohio St.3d 1504, 679 N.E.2d 5 (1997) (in forma pauperis status abused; appeals dismissed and clerk ordered not to accept additional appeals by appellant unless accompanied by required docket fee).
Sanctions - A cautionary note: Use of the sanction weapon must be undertaken with care; otherwise, it can turn around and inflict injury on the would-be beneficiary of the initial sanctions motion or action. A case in point is Powell v. Squire, Sanders & Dempsey, 182 F.3d 918, 1999 U.S. App. LEXIS 16854 (6th Cir. 1999) (table). Powell had its genesis in an underlying action in Ohio state court in which Huntington Bank sued Powell for defamation. In response, Powell's lawyer, Mazer, filing on Powell's behalf an action in federal court against Huntington, its lawyer (Alexander), and Alexander's law firm, alleged that the defamation suit was an abuse of process, constituted malicious prosecution, and violated ORC 2323.51. The district court granted Alexander's motion for judgment on the pleadings; it held that no colorable claim for abuse of process or malicious prosecution had been alleged and that an ORC 2323.51 frivolous-conduct claim could not be pursued in federal court. Alexander's lawyer then filed a motion for sanctions against Mazer pursuant to Fed R Civ P 11, which the district court granted; the court found that the assertion of the malicious prosecution and abuse of process claims was not reasonable and was done for the purpose of harassment and intimidation in an effort to interfere with Alexander's representation of Huntington. (See 990 F.Supp. 541 (S.D. Ohio 1998) (setting hearing as to nature and extent of sanctions).) While the court of appeals vacated that portion of the sanction characterized as imposing a "perpetual penalty" (by making the suspension of payment of a $10,000 monetary sanction payable to the Clients Security Fund of Ohio contingent on Mazer's obtaining a written opinion from a member of the Columbus Bar Association before filing any future malicious-prosecution or abuse-of-process action against a lawyer based on the lawyer's representation of a client), a $1,000 sanction imposed against Mazer, payable to Alexander, was sustained. The Sixth Circuit found that the claims asserted in retaliation against Alexander "utterly lacked any basis in [Ohio] law." 1999 U.S. App. LEXIS 16854, at *10.
- Primary Ohio References: none
- Background References: ABA Model Rule 3.1
- Commentary: ABA/BNA § 61:117; ALI-LGL § 57; Wolfram § 11.2
The primary civil avenues used against lawyers by opposing litigants who feel themselves victimized by abusive conduct are suits for malicious prosecution and abuse of process. Nationally there are special rules limiting lawyer liability for malicious prosecution (see 1 Restatement (Third) of the Law Governing Lawyers § 57(2) (2000)) and abuse of process (id. at cmt. d); these rules, and how they compare with Ohio law, are discussed at section 1.1:520. In this connection, it should be remembered that Ohio has a general rule immunizing lawyers from liability to nonclient third parties not in privity with the client, unless the lawyer acts maliciously. See Scholler v. Scholler, 10 Ohio St.3d 98, 462 N.E.2d 158 (1984) (syllabus one), and the cases applying the Scholler rule, discussed at section 1.1:410. The Scholler rule is consistent with the malice element of the malicious prosecution tort; its application to abuse of process is more problematic. See discussion at sections 1.1:410 and 1.1:520.
The risk that misuse of such actions can itself give rise to sanctions should again be noted. Haupricht v. Davis Farm Services, Inc., No. F-95-013, 1995 Ohio App. LEXIS 4819 (Fulton Nov. 3, 1995), involving frivolous claims for malicious prosecution and abuse of process, is such a case. Therein appellant had sued Davis and its lawyer, based on the defendants' earlier attempts to collect on a debt from appellant; appellant had obtained credit to purchase farm supplies from Davis by signing a security agreement falsely pledging as collateral farm machinery that he did not own. Not surprisingly, the trial court granted defendants' motions for summary judgment on the abuse of process and malicious prosecution claims and then granted monetary sanctions against appellant's lawyer in response to defendants' motions under ORC 2323.51 and OH Civ R 11. The court of appeals affirmed. And see the discussion of Powell v. Squire, Sanders & Dempsey, 182 F.3d 918, 1999 U.S. App. LEXIS 16854 (6th Cir. 1999) (table), at the end of section 3.1:300.
Abuse of process: The elements of the tort of abuse of process in Ohio are:
(1) a legal proceeding has been set in motion in proper form and with probable cause;
(2) the proceeding has been perverted to attempt to accomplish an ulterior purpose for which it was not designed; and
(3) direct damage resulted from the wrongful use of process.
Yaklevich v. Kemp, Schaeffer & Rowe Co., L.P.A., 68 Ohio St.3d 294, 626 N.E.2d 115 (1994) (syllabus one). As will be seen below, almost all of the subsequent case law has taken the Yaklevich syllabus at its word and refused to allow abuse-of-process suits unless they are predicated on the existence of probable cause to bring the underlying action. The decision itself, however, is difficult to square with the syllabus -- the Court in Yaklevich actually held the complaint sufficient to withstand a OH Civ R 12(B)(6) motion to dismiss, even though it alleged that the prior proceeding had been commenced without probable cause. See further discussion of this aspect of Yaklevich in section 1.1:520 at "Abuse of process – Probable cause requirement."
While many, if not most, of the abuse-of-process suits against lawyers arguably involve abusive litigation tactics, in only a handful has the claim survived. And even these few are suspect in one way or another. In Bayer v. Neff, 95- L-044, 1995 Ohio App. LEXIS 5897 (Lake Dec. 29, 1995), the court, reversing the trial court, found the following allegations sufficient to overcome a motion to dismiss:
"During approximately the last three (3) years [appellee] [defendant lawyer] has engaged in a pattern of behavior including, but not limited to, conspiring with * * * the Neffs [his clients] to file a civil lawsuit against [appellant] and then dismissing same [sic]; by personally bringing criminal charges against [appellant]; and by making false accusations about [appellant] to the Lake County Sheriffs Department and the Zoning Inspector."
Id. at *6 (other than "[appellee]," "[appellant]," and “[sic],” bracketed material added). The court also held that appellant's response to the lawyer's motion for summary judgment should have precluded the granting of that motion, in that his affidavit stated that the lawyer "'acted in bad faith, frequently on his own behalf, and maliciously * * *,'" id. at *13 (emphasis in original), along with further lengthy quotations from the affidavit, at the end of which the court merely concludes that "[t]hese submissions are sufficient to overcome a summary judgment obstacle on the abuse of process claim." Id. at *16-17. In neither the dismissal nor the summary-judgment context did the appellate court provide one word of analysis on the three Yaklevich elements or how they were met here. (The only judge that addressed the Yaklevich requisites was Judge Christley in dissent; she persuasively argued that appellant's submissions "are most emphatic about what can only be interpreted as a lack of probable cause." Id. at *21.)
The only other post-Yaklevich abuse-of-process case allowed to proceed against an attorney is Thompson v. R&R Service Systems, Inc., Nos. 96APE10-1277, 96 APE10-1278, 1997 Ohio App. LEXIS 2677 (Franklin June 19, 1997). Abusive litigation practice was certainly alleged in Thompson, where the defendant attorney was claimed to have invoked criminal process as a means of obtaining a civil remedy (return of a van) more promptly. The trial court directed a verdict for the defendants, including the attorney, at the close of plaintiffs' case. Reversing, the court of appeals found that the use of criminal proceedings to achieve a civil remedy was a subversion of the process, citing and quoting former OH EC 7-21. Thus, "[a]ppellants have presented sufficient evidence to at least raise a jury question regarding the perversion of the criminal process for an improper, collateral purpose," id. at *37; the issue of whether probable cause existed to pursue the criminal action was also held to be a jury question. So far, so good. Inexplicably, the court also found that an "attorney may be liable for abuse of process only if the attorney acts maliciously, with an ulterior motive separate and apart from the client's interest." Id. This extra hurdle for attorney cases was tacked on even though the otherwise applicable Yaklevich test, which the court quoted, was itself a case in which the abuse-of-process defendant was a law firm. Compounding the problem, after adding the extra test, the court proceeded to ignore the second part of it. While it certainly can be persuasively argued that the defendant attorney acted maliciously, it seems most unlikely that her efforts to get the van returned to her clients constituted "an ulterior motive separate and apart from the client's interest." The Thompson case is further discussed this section infra at "Malicious criminal prosecution."
See also Luciani v. Schiavone, 210 F.3d 372, 2000 U.S. App. LEXIS 5842 (6th Cir. 2000) (table), where the court of appeals reversed a summary judgment for the defendant lawyer and his firm on the abuse-of-process claim because a jury could infer that the defendants were using the underlying Ohio separation action as a "bargaining chip" to obtain custody arrangements, support provisions, and property settlement, none of which the Ohio court had power to order. "Alternatively, a jury could infer that Mr. Schiavone [the lawyer] was attempting to obtain actual judgments from the Ohio court that it had no power to grant." Id. at *17. On remand, the district court denied the lawyers' renewed motion for summary judgment. Luciani v. Schiavone, No. C-1-97-272, 2001 U.S. Dist. LEXIS 25918 (S.D. Ohio Jan. 2, 2001). The lower court held, first, that a jury could reasonably find that all three Yaklevich factors, including the first, were satisfied, because the Ohio court had jurisdiction over the separation action and thus the fact finder could conclude that the Ohio action was initiated with probable cause. The defendants argued further on remand, however, that as lawyers they were immune from liability to a third party under Scholler. Without stopping to consider whether Scholler applies to a case arguably controlled by the Yaklevich rule, the district court determined that since plaintiffs were not in privity with defendants' client, they must show that defendants acted maliciously. The court concluded that plaintiffs may well be able to do so:
[T]he Court agrees that an attorney who attempts to obtain relief from a court that he knows to be powerless to grant it acts in bad faith. The Court concludes, therefore, that Plaintiffs may establish that Defendants acted in bad faith, and, therefore, maliciously, when they perverted the Ohio proceeding by seeking relief that the Ohio court could not grant. The Court concludes, therefore, that Defendants are not entitled to summary judgment with respect to Plaintiffs' claim for abuse of process.
Id. at *19.
All of the other Ohio abuse-of-process cases against lawyers that we found have failed, because of an inability to meet one or another of the Yaklevich requisites, even though in most of these cases one might fairly describe the alleged conduct of the lawyer(s) as abusive litigation practice. For example, in Gugliotta v. Morano, 161 Ohio App.3d 152, 2005 Ohio 2570, 829 N.E.2d 757 (Summit), an attorney sued a former client for defamation, and the former client counterclaimed, alleging, inter alia, abuse of process. The trial court denied the lawyer's motion for directed verdict on the abuse-of-process counterclaim, but the court of appeals held that the defendant's counterclaim failed as a matter of law, because
"[a]buse of process does not lie for the wrongful bringing of an action, but for the improper use, or 'abuse' of process" once a proper claim has been commenced. [citation omitted].
Id. at ¶ 50. According to the court, defendant's argument that the lawyer threatened litigation to coerce defendant to retract her complaints to the BBB and the Akron Bar Association Board of Grievances (the foundation of the lawyer's defamation action) was the undoing of the abuse-of-process claim: Defendant's "own argument that [the lawyer] used the threat of litigation as a tool of coercion serves to defeat her claim of abuse of process," id. In other words, in the Gugliotta court's view, the former client was arguing that the action was improperly brought and thus failed the first prong of the Yaklevich syllabus. It seems equally plausible, however, that the former client was attempting to argue that the "process" was abused by the filing of the defamation complaint for an ulterior purpose that perverted the proceeding, in satisfaction of the second prong of the Yaklevich test. In any event, there is no direct discussion by the court of a critical issue under the first prong -- whether the defamation action had been brought with probable cause.
Another case finding no liability for abuse of process by an attorney is Willis & Linnen Co., L.P.A. v. Linnen, 163 Ohio App.3d 400, 2005 Ohio 4934, 837 N.E.2d 1263 (Summit), where the court found that the underlying contempt proceeding was brought with probable cause, but that there was no perversion of the process: the lawyer "did not seek to achieve through the use of the courts anything that those courts were powerless to order." Id. at para. 23. (See further discussion of Willis Linnen below.) Accord Ahlers v. Pettinelli, 2006 Ohio 1199, 2006 Ohio App. LEXIS 1090 (Cuyahoga) (judgment on pleadings for defendant lawyers affirmed; "Ahlers cannot demonstrate that Pettinelli initiated the execution to accomplish an ulterior purpose for which it was [not] designed." Id. at para. 13 (bracketed material added).).
In Wolfe v. Little, No. 18718, 2001 Ohio App. LEXIS 1902 (Montgomery Apr. 27, 2001), defendants were alleged to have perverted the proceedings by improperly subpoenaing plaintiffs for deposition, submitting a false affidavit, and communicating with the court ex parte. The court found these assertions wanting, because, according to the Wolfe court, the perversion-for-an-ulterior-purpose element must be one attempting to gain an advantage outside the proceeding, whereas plaintiffs' ulterior purpose allegation (deprivation of due process rights) concerned perversion of the proceeding to gain an advantage in the proceeding itself. Diametrically opposed to this conclusion is Willis & Linnen Co., L.P.A. v Linnen, 163 Ohio App.3d 400, 2005 Ohio 4934, 837 N.E.2d 1263 (Summit), where the court found no perversion of the process because "there is no evidence, or even allegation, that [the lawyer/counterclaim-defendant] sought any collateral advantage during the contempt proceedings." Id. at para. 24 (emphasis by the court). These cases are further discussed in section 1.1:520.
Cases in which the plaintiff alleged that the filing of the underlying action was frivolous, and thus abusive, obviously fail to meet the first Yaklevich element of an action filed with probable cause. E.g., Ahlbeck v. Joelson, No. L-96-413, 1997 Ohio App. LEXIS 3519 (Lucas Aug. 8, 1997) (affirming OH Civ R 12(B)(6) dismissal). Accord Nationwide Ins. Enters. v. Progressive Specialty Ins. Co., No. 00 AP-1474, 2001 Ohio App. LEXIS 3314 (Franklin July 26, 2001) (dismissal affirmed where complaint alleged that underlying action in Kentucky was initiated improperly and without probable cause by defendant lawyer who had prior knowledge that the Kentucky court was without jurisdiction).
In Tilberry v. McIntyre, 135 Ohio App.3d 229, 733 N.E.2d 636 (Cuyahoga 1999), the probable cause element was present in defendant's seeking of sanctions in the underlying action (even though the sanctions order was reversed on appeal), but failed on the second element: "we conclude that the Tilberrys failed to present evidence that 'defendants have done anything more than carry out the process in the federal court to its authorized conclusion.'" Id. at 241, 733 N.E.2d at 644 (quoting language from Yaklevich). Summary judgment for defendants was affirmed. Accord Havens-Tobias v. Eagle, 2003 Ohio 1561, 2003 Ohio App. LEXIS 1512 (Montgomery) (12(B)(6) dismissal affirmed; plaintiffs failed to allege second element, perversion for ulterior purpose); Moffitt v. Litteral, 2002 Ohio 4973, 2002 Ohio App. LEXIS 5000 (Montgomery) (probable cause present but no perversion for ulterior purpose: even though not ultimately successful, legal proceeding to set aside transfer of title to vehicle was set in motion for legitimate purpose rather than one for which system not designed: "The court had power to void the transfer if it concluded it was a fraudulent conveyance." Id. at ¶ 69.)
There are two abuse-of-process cases involving lawyers decided prior to the Supreme Court's decision in Yaklevich; in both, summary judgment for the defendant lawyer was reversed under the Scholler malice exception to lawyer immunity from liability to nonclients. The first is Pheils v. Garber-Lawrence Publishing Group, Inc., No. L-92-418, 1993 Ohio App. LEXIS 5914 (Lucas Dec. 10, 1993) (numerous allegedly harassing lawsuits filed by defendant lawyer against plaintiff, in at least one of which notice by publication was sought using an address known by the lawyer to be erroneous; the lawyer sought thereby to prevent the defendant from learning of the suit and defending it; this was use of process for an improper purpose; court found issue of fact existed on Scholler malice issue). And in Petrey v. Simon, 19 Ohio App.3d 285, 484 N.E.2d 257 (Hamilton 1984), the evidence showed that the lawyer was on actual notice that appellant was not the correct party named as the defendant in the underlying action and that he persisted with the case even after learning that appellant's name and social-security number were different from that of the party sought. The court made no effort to differentiate the separate claims of malicious prosecution and abuse of process; instead, the court held that summary judgment in the lawyer's favor was improper under the malice exception to the Scholler immunity rule.
Malicious civil prosecution: Generally,
[i]n order to state a cause of action for malicious civil prosecution in Ohio, four essential elements must be alleged by the plaintiff: (1) malicious institution of prior proceedings against the plaintiff by defendant, (2) lack of probable cause for the filing of the prior lawsuit, (3) termination of the prior proceedings in plaintiff's favor, and (4) seizure of plaintiff's person or property during the course of the prior proceedings.
Robb v. Chagrin Lagoons Yacht Club, Inc., 75 Ohio St.3d 264, 265, 662 N.E.2d 9, 10 (1996) (syllabus) (nonlawyer defendant). The rule is the same when such a suit is brought against lawyers. See Kelly v. Whiting, 17 Ohio St.3d 91, 94-95, 477 N.E.2d 1123, 1127 (1985) (claim against, inter alia, plaintiff's ex-wife's lawyer and his law firm, based on allegedly malicious issuance of writ requiring malicious-prosecution plaintiff to show cause why he should not be held in contempt for failure to comply with child nonsupport order; motion to dismiss nongovernmental defendants affirmed for failure to meet the third and fourth factors set forth above). While one prior Supreme Court lawyer case, Border City Sav. & Loan Ass'n v. Moan, 15 Ohio St.3d 65, 472 N.E.2d 350 (1984) (per curiam), seemed to limit the tort to the first three elements, Border City has been ignored in subsequent malicious-civil-prosecution cases against lawyers; the four-part test set forth above in Robb and Kelly or a special variation applied in cases involving lawyer defendants (see below) has been regularly applied. See, e.g., Ahlbeck v. Joelson, No. L-96-413, 1997 Ohio App. LEXIS 3519 (Lucas Aug. 8, 1997) (claim based on allegedly frivolous adversary complaint filed by defendant lawyer in bankruptcy proceeding, but summary judgment in defendant's favor affirmed for failure to meet fourth element, seizure of person or property). In an earlier case applying the now-accepted test, Petrey v. Simon, 19 Ohio App.3d 285, 484 N.E.2d 251 (Hamilton 1984), summary judgment for the defendant attorney was reversed where the seizure-of-property prong was satisfied as a result of wrongful attachment of plaintiff's wages. The underlying action, instituted by defendant lawyer Simon, sought an order holding his client's ex-husband in contempt for failure to comply with a child support order in favor of the client. Plaintiff was not the ex-husband and was not a party to the prior action; nor did he have any notice or opportunity to defend. Relying on Scholler v. Scholler, 10 Ohio St.3d 98, 462 N.E.2d 158 (1984), the appellate court found that a genuine issue of fact existed as to the factors of malice and good faith, given evidence that Simon was on actual notice that he was pursuing the wrong party and had even gone so far as to obtain the wage assignment by substituting plaintiff's social-security number for that belonging to her ex-husband, given Simon by his client.
A number of cases in which a lawyer is the malicious-prosecution defendant have stated two of the four elements (malice and lack of probable cause) in a fashion tailored to attorneys:
In view of the attorney's ethical responsibility of zealous representation it must be shown that the attorneys either acted maliciously or that they knew, by clear and convincing evidence, that their client was motivated solely by actual malice. It must also be shown that they did not have a good-faith basis for believing that the civil or criminal proceeding was warranted under existing law, or under a good-faith argument for the extension, modification, or reversal of existing law. This is, essentially, the "probable cause" element as it applies to attorneys.
As in all other actions of malicious prosecution, the appellant bore the burden of providing that his person or property was seized in the course of the proceedings, and that the proceedings were terminated in his favor.
Woyczynski v. Wolf, 11 Ohio App.3d 226, 229, 464 N.E.2d 612, 617 (Cuyahoga 1983) (defendant attorneys had good cause to file both criminal and civil complaints on behalf of their client; summary judgment for defendant attorneys affirmed). Abusive litigation practice cases generally in accord with Woyczynski include: Thompson v. R&R Serv. Sys., Inc., Nos. 96APE10-1277, 96 APE10-1278, 1997 Ohio App. LEXIS 2677, at *19 (Franklin June 19, 1997) (malicious criminal prosecution case using Woyczynski test; see discussion at "Malicious criminal prosecution," this section infra); Cipriani v. Stephanoff, No. 56250, 1990 Ohio App. LEXIS 114 (Cuyahoga Jan. 11, 1990) (using Woyczynski test; summary judgment for defendant lawyer reversed; genuine issue of material fact existed as to whether she acted with malice in having plaintiff's driver's license wrongfully suspended in attempt to execute on prior judgment against plaintiff); Shore, Shirley & Co. v. Kelley, 40 Ohio App.3d 10, 531 N.E.2d 333 (Cuyahoga 1988) (using Woyczynski test; upholding jury verdict against defendant attorney; $15,000,000 counterclaim, filed by attorney with malice and without probable cause in prior municipal-court action for professional fees in the amount of $2,432.82 and dismissed therein, proximately caused cancellation of claimant accounting firm's malpractice insurance and other damages).
For an attorney case in which both the general four-part test and the Woyczynski adaptation of it for lawyer misconduct were utilized in the course of reversing summary judgment for the defendant attorney, see Butts v. Bjelovuk, 129 Ohio App.3d 134, 717 N.E.2d 381 (Cuyahoga 1998) (court found that conflicting evidence created genuine issue of material fact as to whether defendant acted maliciously and without probable cause in bringing action for eviction and rent against nonlessee, who as malicious-prosecution plaintiff had satisfied other two elements of tort -- termination of prior action in her favor and seizure of property through garnishment of her bank account). The court in Vitrano v. CWP Ltd. P'ship, No. 19516, 1999 Ohio App. LEXIS 6179 (Summit Dec. 22, 1999), likewise referred to both versions of the test in a case allegedly brought without probable cause, but affirmed the trial court's dismissal of the complaint for want of an allegation that the prior action terminated in plaintiff's favor.
Malicious criminal prosecution: The elements of civil liability in Ohio for malicious criminal prosecution are the same as those for malicious civil prosecution, except that it is now established that the former does not require seizure of person or property. Trussell v. Gen. Motors Corp., 53 Ohio St.3d 142, 559 N.E.2d 732 (1990) (disapproving Woyczynski on the necessity-of-seizure point; nonlawyer defendant). Accord Froelich v. Ohio Dep't of Mental Health, 114 Ohio St.3d 286, 2007 Ohio 4161, 871 N.E.2d 1159 ("The tort of malicious prosecution in a criminal setting requires proof of three essential elements: (1) malice in instituting or continuing the prosecution, (2) lack of probable cause, and (3) termination of the prosecution in favor of the accused,'" id. at para. 10, quoting the Trussell syllabus; nonlawyer defendant). See Willis & Linnen Co., L.P.A., v. Linnen, 163 Ohio App.3d 400, 2005 Ohio 4934, 837 N.E.2d 1263 (Summit) (summary judgment for lawyer/counterclaim-defendant on malicious-criminal-prosecution claim, because lawyer had probable cause for contempt proceedings in underlying action against counterclaimant). See also 1 Restatement (Third) of the Law Governing Lawyers § 57 cmt. e, at 433 (2000). Ohio malicious-criminal-prosecution cases involving lawyers as defendants have used the lawyer-tailored tests in determining whether the lawyer defendant acted with malice and without probable cause in an abusive-litigation-tactics context. See Thompson v. R&R Serv. Sys., Inc. Nos. 96APE10-1277, 96 APE-1278, 1997 Ohio App. LEXIS 2677 (Franklin June 19, 1997) (reversing directed verdict for defendant lawyer on malicious-criminal-prosecution claim, where lawyer and his clients had pursued criminal prosecution against plaintiff in order to obtain purely civil relief (regaining possession of clients' van) in contract dispute that should have gone to arbitration in any event; evidence presented from which jury could find that attorney acted maliciously and knew her clients were motivated by malice). See also Pollack v. Kanter, 68 Ohio App.3d 673, 589 N.E.2d 443 (Cuyahoga 1990), a case decided one month before Trussell came down, involving seizure of the person of the plaintiff. In Pollack, plaintiff alleged that defendant lawyers forwarded to the prosecutor a letter written by plaintiff; as a result, plaintiff was arrested and indicted for extortion, which indictment was later nolled. The appellate court held that the complaint was sufficient to state a claim; the trial court's dismissal under OH Civ R 12(B)(6) was reversed. For a case in which the general Trussell rule was applied in affirming dismissal and summary judgment in favor of the defendant lawyer, see Bayer v. Neff, No. 95- L-044, 1995 Ohio App. LEXIS 5897 (Lake Dec. 29, 1995) (failure to satisfy termination-of-prosecution-in-favor-of-accused element, even though, after trial court's dismissal of plaintiff's malicious-prosecution suit, his conviction for aggravated menacing was reversed and on retrial he was acquitted; "appellant's premature filing of the complaint and/or subsequent failure to request that the trial court stay the proceeding until the [criminal] appeal was resolved, was fatal to the instant appeal regarding this issue. The trial court, at the time that it disposed of appellant's case, only had before it appellant's conviction." Id. at *11.).
Rule 11 violation: It is settled in Ohio that civil liability cannot be grounded on abusive litigation practice in violation of OH Civ R 11. In Border City Sav. & Loan Ass'n v. Moan, 15 Ohio St.3d 65, 472 N.E.2d 350 (1984), the Supreme Court held that the language of OH Civ R 11 "does not provide the basis for a civil action against the attorney who violates this rule." Id. at 67 n.1, 472 N.E.2d at 352 n.1. Accord Goff v. Ameritrust Co., Nos. 65196, 66016, 1994 Ohio App. LEXIS 1916 (Cuyahoga May 5, 1994); Mitchell v. Whitaker, 33 Ohio App.3d 170, 514 N.E.2d 937 (Cuyahoga 1986); Bales v. Hack, 31 Ohio App.3d 111, 114, 509 N.E.2d 95, 99 (Clark 1986) (rule does not "bestow upon the wounded party a civil action for damages." citing and following Border City). While there appears to be no case law on point, presumably civil liability likewise cannot be independently grounded on violation of ORC 2323.51, OH App R 23, or SCt R XIV(5).
A comment is in order with regard to the Border City discussion of the meaning of OH Civ R 11's "appropriate action" language (a lawyer violating the Rule "may be subjected to appropriate action"). The Supreme Court said "appropriate action" was "simply a reference to a disciplinary proceeding brought under the Rules for the Government of the Bar." 15 Ohio St.3d at 67 n.1, 472 N.E.2d at 352 n.1. But surely this is incorrect. As the Court further noted in the same footnote, the Staff Notes contemplated "appropriate court disciplinary action" (emphasis added). We believe this is a reference, not to violation of the OHCPR, but rather to "willful violation of Rule 11," as the Staff Notes state. As the court in Mitchell v. Whitaker put it, OH Civ R 11 "authorizes a court to impose sanctions in the course of an action under its supervision." 33 Ohio App.3d at 172, 514 N.E.2d at 939. See Kemp, Schaefer & Rowe Co., L.P.A. v. Frecker, 70 Ohio App.3d 493, 497, 591 N.E.2d 402, 404 (Franklin 1990) ("appropriate action" may include imposition of sanction of attorney fees for willful violation). It must be conceded, however, that some courts continued to quote the Border City language that "appropriate action" referred to Gov Bar R disciplinary proceedings. See Millikin v. Good Samaritan Hosp. & Health Ctr., No. 13770, 1993 Ohio App. LEXIS 3692 (Ohio App. Montgomery July 22, 1993). This issue was effectively put to rest by the 1994 amendment to OH Civ R 11, which expressly provides that an attorney may be subjected to appropriate action, "including an award to the opposing party of expenses and reasonable attorney fees incurred in bringing any motion under this rule." The Supreme Court Rules Advisory Committee commentary on the 1994 amendment notes the Border City statement ("arguably . . . dicta") but concludes that the amendment "merely codifies existing practice . . . ." Page’s Ohio Rev Code Ann, Civil Rules, 76 (1994).
See further discussion of civil liability for violation of OH Civ R 11 at the end of section 1.1:410.
- Primary Ohio References: ORC 2705
- Background References: ABA Model Rule 3.1
- Commentary: ABA/BNA § 61:1201; ALI-LGL § 105; Wolfram §§ 12.1.3, 13.3.7
Ohio Rule 3.4(c) deals with a lawyer's knowing disregard of "an obligation under the rules of a tribunal." This provision, and the disciplinary cases dealing with its Code analog, former OH DR 7-106(A), are discussed in section 3.4:400.
Out-of-court contempt - In general: In addition to section 3.4:400, the subject here -- "complying with law and tribunal rulings" -- also partially overlaps other sections of rule 3.1, such as section 3.1:300, dealing with judicial sanctions for abusive litigation practice. In contrast to section 3.1:300, which is concerned primarily with sanctions expressly authorized by court rule or statute, this section examines the vehicle potentially available to a court whenever a lawyer violates a court ruling -- utilization of the contempt power. This power is sometimes expressly incorporated into procedural rules (see, e.g., OH Civ R 37(B)(1), (2)(d), 45(E), 53(C), 56(G)), but it need not be so. The contempt power is inherent in the courts, and is "as ancient as the laws themselves." Schick v. United States, 195 U.S. 65, 69 (1904) (quoting Blackstone's Commentaries). It is also the subject of statutory provisions in many states, including Ohio. See ORC Ch. 2705 (enacted in its original form in 1834). Although there is uncertainty nationally whether the existence of statutory provisions dealing with contempt should preempt the court's inherent contempt powers, see Daniel J. Meador, Inherent Judicial Authority in the Conduct of Civil Litigation, 73 Tex. L. Rev. 1805, 1818 (1995), it is clear that the statutory provisions do not supersede the inherent power in Ohio. See, e.g., the following contempt cases involving nonlawyers: State ex rel. Bitter v. Missig, 72 Ohio St.3d 249, 252, 648 N.E.2d 1355, 1357 (1995) ("The court of appeals possesses both inherent and statutory authority to compel compliance with its lawfully issued orders."); Burt v. Dodge, 65 Ohio St.3d 34, 35, 599 N.E.2d 693, 694 (1992) ("A common pleas court has both inherent and statutory power to punish contempts.).
(Special note should be taken of the opinion of the court in the nonlawyer case of In re Contemnor Caron, 110 Ohio Misc.2d 58, 744 N.E.2d 787 (C.P. Franklin 2000), which is an encylopedic treatise on the law of contempt in Ohio (as well as Anglo-American contempt law generally). If you have an issue relating to contempt in Ohio, Caron should be consulted.)
Disobedience of court orders can, of course, occur either in, near, or away from, the courtroom. As noted in Laws. Man. on Prof. Conduct (ABA/BNA) § 61:1201 (1998):
Courts frequently exercise their contempt power to control and punish the misbehavior of lawyers in court. Less frequently, courts use their contempt power to punish conduct that takes place outside the courtroom, such as disobedience of court orders.
Direct contempt involving lawyer misconduct in or near the courtroom, which includes but is not limited to violation of court orders or rulings, is discussed in section 3.5:400. The present section examines indirect contempt, where the lawyer, outside the presence of the court, fails to obey one or more of its rulings or orders with respect to discovery or the like. See In re LoDico, 2005 Ohio 172, 2005 Ohio App. LEXIS 165 (Stark) (discussing the direct/indirect distinction at para. 35). Most of these kinds of cases involve criminal contempt -- that is, a sanction that is punitive and intended to vindicate the court's authority, typically as punishment for prior disobediance -- rather than civil contempt, where the sanction is designed to coerce compliance with the court's order. Perhaps the leading case setting forth the civil/criminal distinction is Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441-43 (1911). The Gompers dichotomy is generally followed in Ohio lawyer contempt decisions. E.g., In re LoDico, 1999 CA00159, 2000 Ohio App. LEXIS 2851 (Stark June 26, 2000); Catholic Soc. Servs. v. Howard, 106 Ohio App.3d 615, 666 N.E.2d 658 (Cuyahoga 1995); In re Davis, 77 Ohio App.3d 257, 602 N.E.2d 270 (Montgomery 1991). See In re Subpoena Duces Tecum Served on Attorney Potts, 100 Ohio St.3d 97, 2003 Ohio 5234, 796 N.E.2d 915 (characterizing as criminal contempt lawyer's refusal to obey order to submit documents for in-camera review, where trial court "fined him $250, and ordered him to serve ten days in the county jail." Id. at para. 6). See also State ex rel. Benbow v. Runyan, 99 Ohio St.3d 410, 2003 Ohio 4127, 792 N.E.2d 1124 (rejecting lawyer's argument that he was entitled to writ of prohibition from court of appeals to prevent trial court from proceeding with criminal-contempt proceedings against him because complaint of his client had been dismissed with prejudice after adverse jury verdict against it; "even when a trial court has unconditionally dismissed a case, the court retains jurisdiction to consider the collateral issue of criminal contempt." Id. at para. 7.). Accord State ex rel. Amhed v. Costine, 100 Ohio St.3d 36, 2003 Ohio 4776, 795 N.E.2d 672 ("Trial courts may consider collateral issues like criminal contempt and Civ.R. 11 sanctions despite a dismissal." Id. at para. 5.); State ex rel. Corn v. Russo, 90 Ohio St.3d 551, 740 N.E.2d 265 (2001) (while civil contempt proceeding is rendered moot upon settlement or dismissal of underlying action (citing Gompers), criminal contempt, being separate and independent proceeding, can be pursued by court after dismissal of underlying case; nonlawyer contemnor).
A succinct (perhaps a bit too succinct) formulation of direct/indirect civil/criminal contempt distinctions is found in In re Contempt of Heffernan, 117 Ohio App.3d 499, 2008 Ohio 3685, 895 N.E.2d 215 (Cuyahoga): “A criminal contempt order serves the purpose of punishing the offender and vindicating the court’s authority, while a civil contempt order attempts to coerce compliance with the court’s directives. Indirect contempt occurs outside the court’s presence. Direct contempt is misbehavior that occurs in the court’s presence and that obstructs the due and orderly administration of justice.” Id. at para. 20 (citations omitted).
For an example of indirect civil contempt in a criminal case, see In re Original Grand Jury Investigation, 89 Ohio St.3d 544, 733 N.E.2d 1135 (2000) (lawyer ordered by court to comply with subpoena and turn over to grand jury letter containing threats against others written by client to his brother; lawyer refused and was held in civil contempt under ORC 2705.02, with an ongoing daily fine of $25 until he complied with order. Court of appeals held that lawyer had obligation to turn over letter but that contempt citation would be vacated upon lawyer's compliance with order; the Supreme Court affirmed).
A somewhat unique civil-contempt case in a criminal setting was presented in State v. Doe, 101 Ohio St.3d 170, 2004 Ohio 705, 803 N.E.2d 777. In Doe, the contemptous conduct was the refusal by lawyer Lewis to answer grand jury interrogatories after the trial court had ordered her to do so. (The lawyer's refusal was based on privilege, which the Court held had been waived by the deceased client's spouse in accordance with ORC 2317.02(A); see discussion at section 1.6:500.) Arguably this behavior was, like In re Original Grand Jury, an indirect contempt, occurring out of the presence of the court. But a statute makes clear that such a case is to be treated as one for direct contempt, as if in the presence of the court. See ORC 2939.15 ("Court may proceed against witness for contempt"):
If the Court of Common Pleas determines that a witness before the grand jury is required to answer an interrogatory and such witness persists in his refusal, he shall be brought before the court, which shall proceed in a like manner as if such witness had been interrogated and refused to answer in open court.
(Emphasis added.) Perhaps this statutory language invests the trial court with authority to proceed with summary contempt proceedings (as to which see section 3.5:400), but in this case the court held a hearing, with Lewis and her lawyer in attendance, and Lewis was given the opportunity to justify her refusal. Lewis offered no evidence, and the court found her in contempt and ordered her confined to jail unless she purged herself of the contempt by answering the questions by noon of the next day. Lewis appealed, and the contempt order was stayed pending disposition of the appeal. In its unanimous affirmance, the Supreme Court stated that the "trial court did not err in finding Lewis in contempt. The judgment of the court of appeals is therefore affirmed." Id. at ¶ 23. Although all of the justices concurred in Chief Justice Moyer's opinion for the Court, in a separate concurring opinion joined by five of the seven justices, Justice Lundberg Stratton argued that while
our judgment technically affirms that Lewis was in contempt . . ., the assertion of attorney-client privilege under these unique circumstances was an issue of first impression in this state. Consequently, unless Lewis continues to refuse to testify despite our ruling, I believe that no sanctions should be imposed on her.
Id. at ¶ 24. With respect, it would appear from the procedural posture of the case that this is exactly what should happen in any event. The contempt order was stayed pending disposition on appeal. It thus seems unlikely in the extreme that the trial court would order Lewis to jail without giving her the opportunity to comply with the Supreme Court's ruling. In that event, sanctions would in all probability be imposed only if "Lewis continues to refuse to testify despite our ruling." Id.
As will be demonstrated by many of the cases discussed in the subdivisions that follow, the general rule is that the sanction of indirect contempt for out-of-court conduct cannot be imposed unless the procedural safeguards of notice and hearing are provided. See ORC 2705.03. The circumstances in which a court may invoke the summary contempt power -- i.e., without hearing or other due process norms -- for direct contempt of court are explored in detail in section 3.5:400. The nuances involved in the direct/indirect and direct/summary contempt distinctions are also reflected in In re Davis, 77 Ohio App.3d 257, 602 N.E.2d 270 (Montgomery 1991), discussed in this section at "Out-of-court contempt - Nonappearance or late appearance for court date" infra.
Out-of-court contempt - Probate matters: There are a number of nondisciplinary cases in which a lawyer has been found in contempt for disobeying a probate court order away from the courtroom. The most recent Supreme Court case in point is In re Guardianship of Jadwisiak, 64 Ohio St.3d 176, 593 N.E.2d 1379 (1992). Jadwisiak involved court approval of settlement proceeds from personal-injury and product-liability actions obtained on behalf of a ward of the court. Martin, Florida co-counsel for the ward, had previously received attorney fees from the settlement proceeds in the product-liability action, and the Ohio probate court, on March 2, 1988, ordered Martin to remit these funds to the Ohio court. Martin refused to comply and was found in contempt. Pursuant to the contempt ruling, Martin could purge himself by paying into court the wrongfully withheld funds, plus 10% interest. Martin did not comply with this order either, and was again found in contempt, with the penalty this time a $250 fine and ten days in prison. The court of appeals affirmed the contempt judgment. In the Supreme Court, Martin argued that the probate court lacked personal and subject matter jurisdiction, that the March 2 order was therefore void, and that contempt cannot be used to enforce an invalid order. The Court, affirming this aspect of the case, held that the probate court had subject matter jurisdiction over the entire amount of the settlement funds, including attorney fees. Pursuant thereto, the probate court had the inherent power to order Martin to remit the ward's settlement proceeds under his control so that that court could carry out its statutory obligation to maintain control over the entire settlement proceeds, which were part of the ward's estate. It followed that its order to compel Martin to return the funds was authorized by law and that the court could properly enforce its order in a contempt proceeding. The probate court's contempt authority, conferred by ORC 2101.23, gives the court the power to punish contempt as it might be punished in the court of common pleas -- as a result, ORC 2705.02(A), disobeyance of a lawful court order, was applicable. Accord In re Kinross, 84 Ohio App.3d 335, 616 N.E.2d 1128 (Hamilton 1992) (same; Jadwisiak followed; appellant lawyer properly found guilty of a first indirect contempt, but the fine imposed -- $500 per day until compliance with order to return funds -- was in excess of that permitted by ORC 2705.05(A)(1); cause therefore remanded regarding amount of fine). But see inherent power cases holding that the court is not bound by the statutory limits, this section infra at "Out-of-court contempt - Sanctions."
A more recent indirect criminal contempt decision in the probate context is In re Hards, 175 Ohio App.3d 168, 2008 Ohio 630, 885 N.E.2d 980 (Lake). The court of appeals in Hards affirmed the trial court’s finding of numerous acts of contempt in violation of ORC 2705.02 by a guardian who refused to obey multiple probate court orders relating to the guardianship and guardianship assets. The guardian’s lawyer was likewise found in contempt; his “culpability resides in the fact that he advised his client, Adams, to disobey court orders to take these actions.” Id. at para. 54. “An attorney who advises or counsels a client to act in defiance of a court’s valid order is liable to contempt.” Id. at para. 56.
A case in which the conduct was found to be a direct contempt, because the conduct was a fraud on the court, is nevertheless treated here rather than in section 3.5:400, inasmuch as it did not involve the subject matter of that section -- disruption of proceedings in the presence of the court; instead, it concerned actions taken out of the presence of the court -- typically categorized as indirect contempt. The case, In re Estate of Wright, 165 Ohio St. 15, 133 N.E.2d 350 (1956), dealt with an administrator of an estate who, without disclosure to the probate court, contracted to represent the heir in connection with the estate. The Supreme Court held that direct contempt is "not confined to a disorderly or obstreperous act in the presence of the court itself" (conduct covered in section 3.5:400), but also includes
conduct obstructing justice in the court itself in failing to make a frank and full disclosure, in failing to give the court full information as to his contract with the sole heir at the time such agreement was entered into, and in failing to obtain the consent of such agreement from all parties concerned in the administration of the estate.
An act need not be in the immediate presence of the court in order to constitute direct contempt, if it tends to obstruct justice or interfere with actions of the court in the courtroom itself.
Id. at 25-26, 133 N.E.2d at 357-58. Since the act was "such as to influence or persuade the court to make orders in its own courtroom, concerning which it probably would have done otherwise had the act not occurred," id., it "interfere[d] with actions of the court in the courtroom itself." Reversing the court of appeals, which had ruled that the contempt was not direct and that the provisions of ORC 2705.02-03 for indirect contempt were therefore applicable, the Supreme Court held that the probate court could penalize the administrator summarily under ORC 2705.01. In fact, however, a "protracted trial" was had on both the motion for vacation of the final account and the matter of contempt, and "all parties were apprised that the matter of contempt of court was being tried along with the matter of the vacation of the final account." Id. at 17, 25, 133 N.E.2d at 352, 357. Thus, as a practical matter, it would appear that the contemnor did receive notice and hearing comparable to that provided for in ORC 2705.03. Moreover, since the hearing was held well after the events giving rise to the charge, there was no "need for speed" -- a factor that some courts have held must be present, in addition to the contempt being direct and an obstruction of justice, before the summary procedures of ORC 2705.01 can be invoked. See, e.g., In re Davis, 77 Ohio App.3d 257, 263-64, 602 N.E.2d 270, 274-75 (Montgomery 1991), discussed this section infra at "Out-of-court contempt - Nonappearance or late appearance for court date." This view on the requisites for summary contempt is also fully explored in In re Contemnor Caron, 110 Ohio Misc.2d 58, 89-97, 744 N.E.2d 787, 809-15 (C.P. Franklin 2000). Further discussion of summary contempt is found in section 3.5:400.
Not surprisingly, cases involving lawyers decided subsequent to Wright cite it in support of the proposition that a direct contempt obstructing justice in the abstract, rather than having an immediate negative impact on in-court proceedings, is sufficient to bring the summary procedures of ORC 2705.01 into play (even though in some of them, as in Wright, a hearing was nevertheless held). Fed. Land Bank Ass'n v. Walton, 99 Ohio App.3d 729, 651 N.E.2d 1048 (Wyandot 1995) (lawyer's filing of memorandum accusing judge of fraud constituted direct contempt; summary punishment affirmed); see State v. Local Union 5760, 172 Ohio St. 75, 173 N.E.2d 331 (1961) (hearing held, but trial court had power to try nonlawyer defendants summarily for interfering with sheriff's attempt to execute court order of replevin).
While the Supreme Court in Wright does not mention a specific rule or order of the probate court violated by the attorney, there can be little doubt that the Court viewed the lawyer as violating settled law relating to administration of estates and representation of conflicting interests:
It is a fundamental principle of law that, where parties having different interests are involved, no lawyer can represent or receive compensation from such parties without a full disclosure, to all parties involved, of his dual representation and the arrangements as to the compensation to be received therefrom.
Every lawyer worthy of the name learns this principle ab initio. . . . It follows that, where one is acting as an administrator of an estate, his sole duty is to its proper administration, and he can not properly have an arrangement to represent a claimant against the estate without a full disclosure of such arrangement to the court and to all persons concerned with the estate, not only as to terms of the arrangement, but as to the compensation he is to receive therefrom.
165 Ohio St. at 23, 133 N.E.2d at 356.
Out-of-court contempt - County courts: County courts, as courts of limited jurisdiction created by statute, have no inherent authority to hold parties in contempt, but only such powers as are expressly conferred on them by statute. State ex rel. Johnson v. County Court, 25 Ohio St.3d 53, 495 N.E.2d 16 (1986). Cf. Cincinnati Bar Ass'n v. Adjustment Serv. Corp., 89 Ohio St.3d 385, 388-89, 732 N.E.2d 362, 366 (2000) ("The board [of Commissioners on the Unauthorized Practice of Law], having been created by rule, has no inherent power to hold in contempt, just as a tribunal created by statute is confined to its statutory powers and has no inherent powers."). The Johnson Court also held that, pursuant to then-existing ORC 1907.371, the provisions of ORC 2705 "apply to county courts except where 'a special provision is made in Chapter 1907 . . . .' Since contempt powers are conferred on county court judges by R.C. 1907.171, they have no authority to discharge contempts under R.C. 2705.02." 25 Ohio St.3d at 56, 495 N.E.2d at 20 (emphasis by the Court).
New legislation regarding the contempt powers of county courts became effective on March 17, 1987. Former ORC 1907.171 and 1907.371 were repealed, and pursuant to ORC 1907.18(B), county courts now have contempt power that, in the absence of any such specific provision in ORC 1907 (ORC 1907.171 having been repealed), may be exercised "in a manner authorized by the Revised Code or common law for the judges of the courts of common pleas." Thus, the provisions of ORC 2705 are now available to county courts, and, arguably, by the statute's reference to "common law," so is the inherent-contempt power.
Out-of-court contempt - Nonappearance or late appearance for court date: Failure to appear at a scheduled hearing by a lawyer having knowledge of the hearing is typically treated as an indirect criminal contempt. E.g., In re Olivito, 2005 Ohio 2701, 2005 Ohio App. LEXIS 2548 (Mahoning); In re Purola, 73 Ohio App.3d 306, 596 N.E.2d 1140 (Auglaize 1991).
If the attorney shows up late, things get more complicated: In Weiland v. Indus. Comm'n, 166 Ohio St. 62, 139 N.E.2d 36 (1956), appellant was late for a jury trial because his car broke down. The trial court found him guilty of contempt in violation of the trial-scheduling order, and the court of appeals affirmed. Reversing, the Supreme Court noted that part of the offense occurred on the drive to the court and thus was an indirect contempt. Appellant was therefore entitled to offer evidence to show extenuating circumstances, which the trial court did not afford. The case was remanded for rehearing. (The Court viewed the act of "entering the court late and after the trial had started," as a direct contempt. Id. at 66, 139 N.E.2d at 39.) Concurring, Judge Stewart would have entered final judgment for appellant:
[W]here a lawyer starts for court at a time when he reasonably expects to be on time, and through an accident, happening without fault on his part, he arrives late, and particularly where he has taken pains to inform the court of his predicament and that he will be late, in my opinion he is no more guilty of contempt of court than would a judge, who was prevented from opening court in time as a result of like circumstances, be guilty of a dereliction of duty.
Id. at 67, 139 N.E.2d at 39. Accord, as to the majority opinion, State v. Butler, No. 34574, 1976 Ohio App Lexis 7467 (Cuyahoga Feb. 26, 1976) (tardiness of lawyer has elements of both direct and indirect contempt). But see State v. Belcastro, 139 Ohio App.3d 498, 744 N.E.2d 271 (Cuyahoga 2000) (without notice or hearing, lawyer found in both direct and indirect contempt for noncompliance with order to be in court within ten minutes after verdict in criminal case; order of direct contempt reversed: "Contemnor's inaccessibility necessarily occurred outside the courtroom. We therefore find that the court erred by classifying contemnor's conduct as a direct contempt"; indirect contempt order remanded for hearing under ORC 2705.03: "This court has consistently held that arriving late to a hearing or not appearing at all constitutes an indirect contempt of the court." Id. at 501, 744 N.E.2d at 273 (citations omitted).). Accord In re Contempt of Heffernan, 177 Ohio App.3d 499, 2008 Ohio 3685, 895 N.E.2d 215 (Cuyahoga) (following the Belcastro language quoted above; reversing trial court; arriving late is not direct contempt and could not be summarily punished; trial court summary finding of direct contempt reversed). Note that under the Weiland rule the direct contempt aspect -- "entering the court late and after the trial had started" -- has the effect of giving the lawyer who never shows up the protections afforded indirect contemnors, whereas the tardy lawyer who does show is faced with a direct contempt charge as well.
The court's decision in In re Davis, 77 Ohio App.3d 257, 602 N.E.2d 270 (Montgomery 1991), is interesting in a number of respects. Davis was summarily found guilty of direct criminal contempt after failing to appear for the trial of his client on the date scheduled; as a result, the court ordered a mistrial. On appeal of his contempt conviction, Davis argued that his conduct did not constitute direct contempt. While the court of appeals recognized that "Ohio has generally treated an attorney's absence from court as an indirect contempt," id. at 266, 602 N.E.2d at 276, the court nevertheless refused to overturn the trial court's finding that this was a direct contempt. This, however, was not the end of the inquiry: The court held that the use of the summary contempt power set forth in ORC 2705.01 requires, not only a direct contempt, "but a palpable need to act immediately." Id. at 267, 602 N.E.2d at 277. Inasmuch as the proceeding had terminated in a mistrial two days before the contempt sanction was imposed summarily,
the court was not faced or presented . . . with a form of court-disrupting misbehavior which constituted an open threat to the orderly procedure of the court and required immediate suppression and punishment to preserve the order of the court's proceedings. . . . The need, if any, for immediate action terminated with the mistrial. There was no longer any "need for speed," which is a concomitant requirement for a summary proceeding. By following a summary procedure the court exceeded its inherent authority, as discussed in Cooke and Oliver [Cooke v. United States, 267 U.S. 517 (1925); In re Oliver, 333 U.S. 257(1948)], supra.
77 Ohio App.3d at 266-67, 602 N.E.2d at 276-77 (emphasis by the court). Pursuant to the Davis analysis, the trial court should have proceeded under ORC 2705.03 instead of ORC 2705.01 and conducted an evidentiary hearing to determine whether or not appellant was in contempt. See further discussion of this issue in section 3.5:400.
In contrast to Davis, the court of appeals in In re Purola, 73 Ohio App.3d 306, 596 N.E.2d 1140 (Auglaize 1991), did follow the general Ohio rule and found that an attorney's failure to appear for a final pretrial as ordered was an indirect criminal contempt. Although the trial court characterized the contempt as direct in its journal entry, the lower court in fact dealt with the contempt as if it were indirect and provided notice of the charge and a full hearing. The appellate court therefore concluded that the trial court's classification of the contempt as direct in its journal entry was harmless error and affirmed.
Out-of-court contempt - Other: As the previous subsections reflect, a wide variety of out-of-court conduct can trigger contempt. A few additional examples involving lawyers include:
Toledo Bar Ass'n v. Ishler, 44 Ohio St.2d 204, 339 N.E.2d 828 (1975). Ishler, having previously been indefinitely suspended and ordered not to practice law in Ohio by the Supreme Court, concocted a scheme whereby he appeared in 61 cases in the Toledo Municipal Court, pursuant to supposed "assignments" of claims purchased by promissory notes, so that he could institute legal proceedings on the claims in his name as assignee, acting as "attorney pro se." As the Supreme Court found, this "was an attempt to do by indirection that which he acknowledged he could not do directly by reason of his indefinite suspension from the practice of law." Id. at 207, 359 N.E.2d at 830. As a result, this "course of conduct contrived to circumvent the July 3, 1974, order of this court indefinitely suspending him from the practice of law in Ohio . . . and as such constitute acts of contempt of this court in violation of R.C. 2705.02(A)." Id.
In re Green, 172 Ohio St. 269, 175 N.E.2d 59 (1961), rev'd, 369 U.S. 689 (1962). In Green, a union lawyer knowingly advised his clients to disobey a temporary restraining order against picketing entered by the common pleas court. A written charge of contempt was lodged against him under ORC 2705.02, and an ORC 2705.03 hearing was held. As a result, he was found in contempt; the Ohio Supreme Court affirmed:
[A]n attorney at law who deliberately advises his clients against whom the order is directed to disobey and disregard it, which they do upon such advice, is guilty of contempt of court and may be punished therefor.
Id. at 269-70, 175 N.E.2d at 60 (syllabus three). (Accord In re Hards, 175 Ohio App.3d 168, 2008 Ohio 630, 885 N.E.2d 980 (Lake) (applying the Green rule to lawyer who advised guardian client to disobey probate court orders).) While the Ohio Supreme Court in Green found "unfortunate" the acrimonious situation that developed between Green and the judge at the hearing, it rejected Green's claim of denial of due process. Reversing, the United States Supreme Court held that it was a violation of due process to convict Green of contempt pursuant to a hearing in which he was not allowed to testify on his own behalf (the Court characterized the hearing as one in which the judge ruled "that the only purpose of the hearing was to sentence petitioner," 369 U.S. at 691) and without an opportunity to establish that the state court was acting in a field reserved exclusively for the NLRB. In re Green, 369 U.S. 689 (1962).
State ex rel. Turner v. Albin, 118 Ohio St. 527, 161 N.E. 792 (1928). Albin involved a scheme to evade the standards for admission to the Ohio Bar. The defendants were charged with a conspiracy in which, in exchange for money, exam results for unsuccessful applicants would be given a passing grade by altering the test results after they had been received in the Supreme Court Clerk's Office. In addition to the candidates for admission, an attorney previously admitted and a former employee in the Clerk's office were involved in the scheme and named as defendants. The Supreme Court noted that the legislature made the bar examination a prerequisite to admission and empowered the Supreme Court to prescribe rules governing same. Thus, in addition to the good moral character requirement, "it is equally important that the processes of selection be executed in an honorable manner, and that they not be defeated or frustrated by fraudulent means." Id. at 534, 161 N.E. at 794. All defendants, having engaged in a fraud on the Court, were found guilty of contempt and, if previously admitted, were disbarred.
In City of Garfield Heights v. Wolpert, 122 Ohio App.3d 287, 701 N.E.2d 734 (Cuyahoga 1997), the court, affirming a finding of indirect contempt, applied ORC 2705.02(A) and concluded:
[W]e know of no rule of practice within our adversary system which authorizes an attorney to make repeated, ex parte telephone calls to the tribunal before which he or she is practicing after being commanded not to do so by the tribunal.
Id. at 293, 701 N.E.2d at 738.
Out-of-court contempt - Sanctions: Typical sanctions for contemptuous failure to comply with a court order are a fine, imprisonment, or both. See, e.g., Zakany v. Zakany, 9 Ohio St.3d 192, 459 N.E.2d 870 (1984) (ten days in jail plus $500 fine; nonlawyer case); In re Purola, 73 Ohio App.3d 306, 596 N.E.2d 1140 (Auglaize 1991) ($100 fine; lawyer case). ORC 2705.05(A) provides that in the case of indirect criminal contempt, penalties are limited to, for a first offense, a fine of not more than $250, imprisonment for a definite term of not more than 30 days, or both; for a second offense, a fine of $500, imprisonment for 60 days, or both; and for a third offense, a $1000 fine, imprisonment of not more that 90 days, or both. E.g., In re Kinross, 84 Ohio App.3d 335, 616 N.E.2d 1128 (Hamilton 1992) (reversing imposition on lawyer of fine that exceeded ORC 2705.05(A)(1) limit for first indirect offense). The court in In re Olivito, 2005 Ohio 2701, 2005 Ohio App. LEXIS 2548 (Mahoning), had it both ways; while recognizing that courts have inherent power to punish for contempt and thus are not bound by the ORC 2705.05(A) limits, it proceeded to find that the trial court's imposition of a 30-day sentence (within the statutory limit for a first offense) was nevertheless unreasonable and an abuse of discretion in the circumstances presented.
In addition to the lawyer cases of Olivito and State ex rel. Turner v. Albin, 118 Ohio St. 527, 527, 161 N.E. 792, 792 (1928) (syllabus two) ("courts have inherent power to impose a penalty reasonably commensurate with the gravity of the offense"), there is a substantial body of Ohio nonlawyer contempt authority holding that the limits of ORC 2705.05(A)(1)-(3) cannot constrain a court's inherent authority to impose the sanction it considers appropriate. E.g., McDaniel v. McDaniel, 74 Ohio App.3d 577, 599 N.E.2d 758 (Cuyahoga 1991) (indirect contempt; "[w]hile [ORC] 2705.05 sets forth the penalties for contempt of court, a court may, pursuant to its inherent powers, punish a contemptuous refusal to comply with its orders, without regard to the statutory penalties," id. at 579, 599 N.E.2d at 759); In re Guardianship of Sechler, Nos. 98AP-1223, -1128, -968, -1107, 1999 Ohio App. LEXIS 2036, at *25 (Franklin May 4, 1999) (collecting cases). See Planned Parenthood Ass'n of Cincinnati, Inc. v. Project Jericho, 52 Ohio St.3d 56, 556 N.E.2d 157 (1990) (in indirect-contempt case, Court stated that if valid order has been issued, "a court has the statutory and inherent power to entertain contempt proceedings and punish disobedience of that order, id. at 61, 556 N.E.2d at 163 (citing ORC 2705.02(A) and Zakany syllabus recognizing both statutory authority and inherent power to punish disobedience of orders with contempt proceedings; Court further held that trial court properly assessed attorney fees against contemnors, even though ORC 2705.02(A)(1)-(3) (not cited) does not include attorney fees in the penalties that may be imposed in cases of indirect contempt). See generally In re Contemnor Caron, 110 Ohio Misc.2d 58, 102, 104, 744 N.E.2d 787, 819, 820 (C.P. Franklin 2000). But see In re Lands, 146 Ohio St. 589, 67 N.E.2d 433 (1946) (even though the contempt power is inherent and not dependent on legislative sanction, "where the General Assembly has prescribed the procedure for the exercise of the power it is the duty of the court to follow such procedure," id. at 595, 67 N.E.2d at 437).
Three subsequent Supreme Court cases have cited Lands on this point. (All of these cases, with the exception of Local 5760, are indirect-contempt cases, like Lands.) The first is State v. County Court, 25 Ohio St.3d 53, 54, 495 N.E.2d 16, 18 (1986) (dictum; "[s]tatutory powers to deal with contempts are merely cumulative and in addition to the inherent authority of the court . . . . However, where a procedure has been prescribed for the exercise of the power to punish contempts by rule or by statute, it is the duty of the court to follow such procedure [citing Lands]."). The second case, City of Cincinnati v. Cincinnati Dist. Council 51, 35 Ohio St.2d 197, 299 N.E.2d 686 (1973), draws a similar power/procedure distinction: On the one hand, compare: "it has been stated that statutory procedures must be followed in indirect contempt proceedings, id. at 202, 299 N.E.2d at 692 (citing Lands); that "R.C. 2705.03 sets forth the procedure which must be followed in indirect contempt proceedings," id. at 203, 299 N.E.2d at 292; and "it is conceded that the General Assembly may prescribe procedure in indirect contempt cases" id. with, on the other hand: "The power to punish for contempt is said to be inherent in the courts and to exist independently from express constitutional provision or legislative enactment," id. at 202, 299 N.E.2d at 691 (citing Local Union 5760); "[i]t is, however, highly doubtful that the General Assembly may properly limit the power of a court to punish for contempt," id. at 207, 299 N.E.2d at 694; and "the power to punish for contempt has traditionally been regarded as inherent in the courts and not subject to legislative control," id. (citing Local Union 5760). The Court subsequently stated in State v. Kilbane, 61 Ohio St.2d 201, 203 n.3, 400 N.E.2d 386, 389 n.3 (1980) (dictum), that "[w]e adhere" to the position in Cincinnati that it is "highly doubtful" the legislature can limit the courts' power to punish for contempt.
The third Supreme Court case invoking Lands on this point is State v. Local Union 5760, 172 Ohio St. 75, 173 N.E.2d 331 (1961), a direct-contempt case, which noted, after quoting the Lands reference to the duty to follow statutory procedures, that "[t]he opinion in that case, however, in no way implies that courts are bound by such statutory procedure in cases of direct or summary contempt." Id. at 80, 173 N.E.2d at 336. But the pertinent syllabus in Local 5760 does not refer to direct or summary contempt; it confirms generally that "[t]he inherent power of a court to punish for contempt of court may not be limited by legislative authority," id. at 75, 173 N.E.2d at 333 (syllabus one).
Based on the foregoing, one can say with some confidence that the inherent power of a court to deal with direct contempt, including the imposition of sanctions and/or the procedures utilized, cannot be limited by the legislature. Given the rather murky state of the case law, the conclusions to be drawn with respect to indirect contempt are stated with less confidence but appear to be as follows: the power to deal with indirect contempt is inherent in the courts; that power cannot be circumscribed by the legislature. In matters of procedure, however, such as the notice, hearing, and bail rights specified in ORC 2705.03-05, legislative requisites must be followed, so long as they are consistent with due process and other constitutional protections.
ORC 2705.06 expressly provides for imprisonment to coerce compliance in cases of civil contempt: "When the contempt consists of the omission to do an act which the accused can yet perform, he may be imprisoned until he performs it." E.g., In re Guardianship of Brisboy, 94 Ohio App.3d 361, 640 N.E.2d 908 (Huron 1994) (imprisonment until repayment ordered is made).
Out-of-court contempt - Abuse: The potential abuse arising from misuse of the court's contempt powers is well illustrated in City of Cleveland v. Geraci, No. 64075, 1993 Ohio App. LEXIS 5997 (Cuyahoga Dec. 16, 1993). In Geraci, the attorney for a defendant who had been cited for a traffic violation complained to a local television station about the slowness of the elevators in the Justice Center. Upon learning of this heinous act, a Cleveland Municipal Court judge had Geraci haled into court and summarily found him guilty of both direct and indirect contempt. Not surprisingly, the Court of Appeals reversed:
The conduct of the appellant did not obstruct the administration of justice. Thus, the trial court erred in finding the appellant guilty of direct contempt . . . .
Id. at *7-8. The finding of indirect contempt was also overturned, because the
failure of the trial court to comply with the mandate of R.C. 2705.03 requires a remand to the trial court for a new hearing with regard to whether the conduct of appellant constituted indirect contempt.
Id. at *10.
Abuse of the contempt power can lead to disciplinary proceedings against the offending judge. This occurred in Disciplinary Counsel v. Cox, 113 Ohio St.3d 48, 2007 Ohio 979, 862 N.E.2d 514, where respondent's conduct was found to have violated various Canons of Judicial Conduct, as well as former DR 1-102(A)(5) (conduct prejudicial to the administration of justice). It all started when James Portis, the alleged contemnor, accompanied his nephew to a hearing in respondent's courtroom. Fines and costs were assessed against the nephew, and they left the courtroom to pay the amount. After the court cashier advised Portis that an additional $200 fee was owing, Portis responded that "judges can be crooks, too." After Portis left the courthouse, the cashier reported the remark to the judge, who ordered the police to arrest Portis. After being locked up for three hours, Portis was brought back before respondent, who accused Portis of indirect contempt. After considerable dialogue, during which it was apparent that Portis did not understand what was happening to him, he ended up pleading no contest, was fined $500 and assessed costs.
Both the panel and the Board recommended a one-year suspension, but the Court, emphasizing the contempt aspect and respondent's lying about it during the disciplinary investigation, found "[t]he recommended sanction too lenient for respondent's egregious conduct" and imposed an indefinite suspension instead. Rather than its proper use in service of the administration of justice, "here, it is obvious that respondent used this [contempt] power merely to intimidate and demean Portis." Id. at ¶ 41.
[R]espondent concedes without explanation that he wrongly advised Portis that Portis had the burden of proving his innocence to the contempt charge. Respondent also had no explanation for why he admonished Portis with the threat "That's what we are going to try and prove against you," implicating his own partiality in the process. Finally, respondent acknowledged that he had insulted Portis by suggesting that he was "too dense to understand" the contempt charge against him.
Id. at ¶ 29.
While this "subversive" conduct "seriously undermined these goals" of the even handed administration of justice and public confidence in the integrity of the judiciary, id. at para. 42, what really set the Court off, we think, were respondent's falsehoods to the relator – representing that he had actually heard the "crook" statement; that it was because of this "direct" contempt that Portis was placed in custody; and that Portis had pleaded no contest but had not been fined.
[A]lthough neither the panel nor the board emphatically denounced respondent's false accounts of the events underlying the Portis contempt citation, we find these untruths intolerable. . . .
That a lawyer who once served as a member of the judiciary in this state would submit dishonest or misleading information during a disciplinary investigation to cover up his misuse of judicial authority is an affront to our entire legal and disciplinary system.
Id. at ¶¶ 43-44.
Out-of-court contempt - Disciplinary proceedings against contemnors: In the group of cases under consideration in section 3.1:500, a few of the examples are disciplinary decisions where sanctions are premised, at least in part, on an underlying determination finding the respondent in contempt for having ignored or violated, away from the courtroom, a court order or ruling. Disciplinary cases of this kind include:
Office of Disciplinary Counsel v. Ewing, 83 Ohio St.3d 314, 699 N.E.2d 928 (1998). In Ewing, respondent disbursed funds held in his lawyer trust account, including payment of legal fees to himself, even though prior orders entered both by the common pleas court and the bankruptcy court specifically prohibited him from doing so. The common pleas court found respondent in contempt for disbursing the funds, and the court of appeals affirmed. For knowingly violating the orders of both courts, respondent was disbarred by the Supreme Court.
Office of Disciplinary Counsel v. O'Leary, 67 Ohio St.3d 425, 619 N.E.2d 410 (1993). Respondent O'Leary acted as the attorney for Bowman, the administrator of an estate. Both respondent and the administrator were removed by the probate court and were ordered to turn over all estate assets and financial records to the new administrator. "However, Bowman and O'Leary defied this order, and on December 18, 1986, Judge Spicer [of the probate court] held them in contempt of court." Id. at 426, 619 N.E.2d at 410. For his disregard of the probate court's order (violating former OH DR 7-106(A)) and numerous other violations of the OHCPR, O'Leary was permanently disbarred.
Cincinnati Bar Ass'n v. Sullivan, 65 Ohio St. 293, 603 N.E.2d 983 (1992). Sullivan concerned respondent's refusal to answer interrogatories after the trial court had granted a motion to compel answers. The court subsequently found Sullivan and her client in contempt for failure to obey the court's discovery order. Respondent and the client were fined $500, plus $100 per day until the interrogatories were properly answered. They never were, and the fines remained unpaid. For this and other misconduct in the course of the litigation, respondent was indefinitely suspended from the practice of law. The Supreme Court also noted that respondent had a prior disciplinary infraction, with respect to which the Supreme Court had ordered her to pay the costs. The Court twice held her in contempt for failing to do so.