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Ohio Legal Ethics Narrative
Ohio Rule 3.5 differs significantly from MR 3.5.
In addition to instances of new or different language, the format has been changed. There are only two divisions, (a) and (b), rather than the four subparts of MR 3.5 (a)-(d). Division (a) of the Ohio Rule contains six subdivisions, some of which restate, in whole or in part, paragraphs (a)-(d) of the Model Rule. Division (b) of the Ohio Rule has no counterpart in the Model Rule; it is taken from former OH DR 7-108(G).
The changes incorporated into Ohio Rule 3.5(a) are as follows:
MR 3.5(a) is
now Ohio Rule 3.5(a)(1).
Ohio Rule 3.5(a)(2) is new and prohibits a lawyer from lending anything of value or giving anything of more than de minimis value to a judicial officer, official or employee of a tribunal. It is adapted from former OH DR 7-110(A).
Ohio Rule 3.5(a)(3) replaces MR 3.5 (b) and precludes ex parte communication with a judicial officer or other official about the merits of the case (3.5(a)(3)(i)) or with a juror or prospective juror during the proceeding unless authorized to do so by law or court order. 3.5(a)(3)(ii). See former OH DR 7-108(A) & (B) and 7-110(B).
Ohio Rule 3.5(a)(4)(i)-(iii) is substantively identical to MR 3.5(c)(1)-(3).
Ohio Rule 3.5(a)(5) is identical to MR 3.5(d).
Ohio Rule 3.5(a)(6) has no
counterpart in the Model Rule. It corresponds to former DR
Ohio Rule 3.5(b) requires the lawyer to reveal to the tribunal known improper conduct by or toward a juror, prospective juror, or a family member of a juror or prospective juror. This division has no Model Rule analog and restates the substance of former OH DR 7-108(G).
The following sections of the Ohio Code of Professional Responsibility are listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 3.5(a): DR 7-106(C)(6), 7-108(A) & (B), & 7-110.
The following section of the Ohio Code of Professional Responsibility is listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 3.5(b): OH DR 7-108(G).
- Primary Ohio References: Ohio Rule 3.5(a)(1) & (2)
- Background References: ABA Model Rule 3.5(a)
- Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 7.151-7.152, 8.21
- Commentary: ABA/BNA § 61:801; ALI-LGL §§ 113(2), 115; Wolfram §§ 11.3, 11.4
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 § 7.151 (1996).
Ohio Rules 3.5(a)(1) and (2) address the proper relationship between a lawyer on the one hand, and the judges, officials, employees of a tribunal, and sitting and prospective jurors, on the other. The thrust of these provisions is to control lawyer conduct that might compromise the integrity and impartiality of the tribunal.
To this end, Rule 3.5(a)(1) bars a lawyer from seeking to influence "a judicial officer, juror, prospective juror, or other official by means prohibited by law." The two categories commonly categorized as improper influence are those proscribed by criminal law (primarily bribery) and by the Ohio Code of Judicial Conduct (OH CJC), e.g., OH CJC Canon 2(C)(5). See Rule 3.5 cmt. . Division (a)(2) specifically prohibits a lawyer from lending anything of value or giving anything of more than de minimis value to "a judicial officer, official, or employee of a tribunal." See section 3.5:210. Division (a)(1) is substantively the same as MR 3.5(a); division (a)(2) is similar to former OH DR 7-110(A).
As indicated by Laws. Man. of Prof. Conduct (ABA/BNA) § 61:804 (2006), many of the disciplinary cases arising under MR 3.5(a) (comparable to Ohio Rule 3.5(a)(1)) have dealt with bribery of one form or another, which in Ohio involves conduct "with purpose to corrupt." (See ORC 2921.02(A).) In contrast, there is no such intent requirement in Ohio subdivision (a)(2) -- any loan, or any gift of more than de minimis value, to the designated persons is a violation, irrespective of the motive of the lawyer doing the loaning or giving. Other differences between the two subdivisions are that only (a)(2) deals with loans or gifts to court "employees" and only (a)(1) deals with improper influence directed at "juror[s] [or] prospective juror[s]." While "or other official" in (a)(1) is not expressly limited to an official of a tribunal and thus could be thought to be more broadly construed, the reading set forth in Laws. Man. on Prof. Conduct (ABA/BNA) § 61:803 (1992) seemed a reasonable one:
Both the title "Impartiality and Decorum of the Tribunal," and the placement of Rule 3.5 with other rules regarding advocacy seem to indicate that "other official" should be narrowly construed to apply to officials employed by or constituting a "tribunal," though the Comment does not so indicate.
(Unfortunately, this sensible analysis was deleted in the 2006 update; in its stead, the new discussion, with one exception, still supports a tribunal-related construction of “other official.” The exception is an Illinois disciplinary proceeding involving bribery of legislators (In re Pappas, 442 N.E.2d 142 (Ill. 1982)), which the Manual cites as supporting its statement that MR 3.5 “is also frequently invoked when the charge involves bribery of a government official other than a judge.” § 61:807 (2006). The difficulty with the Manual’s citation of Pappas is three-fold: First, the operative phrase “other official” nowhere appears in Ill. Rule 3.5. Second, Illinois did not adopt its version of the Model Rules until 1990, eight years after the Pappas decision; third, not only does Pappas not cite MR 3.5, it makes no mention of any ethics rule.)
A more persuasive reason for such the narrow reading may be found in the use of the identical phrase in the prohibition in subdivision (a)(3)(i) against ex parte communications with "a judicial officer or other official." Comment  leaves no doubt that this language deals with communications "with persons serving in an official capacity in the proceeding." Rule 3.5 cmt.  (emphasis added). And see Rule 3.5 cmt. , clearly indicating that the subject matter here is "improper influence upon a tribunal." See also 2 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 31.4 (3d ed. Supp. 2004-2) (title of section is "Improperly Influencing a Judge, Juror, or Other Court Official"). (It might be further noted that since all of the other persons listed in division (a)(1) are clearly associated with a tribunal, the reading of "other official" should likewise be so limited. See 2A Norman J. Singer & J.D. Shambie Singer, Sutherland Statutory Construction § 47.17 (7th ed. 2007) (ejusdem generis).)
In sum, while both subdivisions (a)(1) and (a)(2) are closely related and in some instances may overlap (i.e., bribing a judge), each polices distinct conduct in an effort to achieve the general goal of the integrity of the tribunal.
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 §§ 7.152, 8.21 (1996).
Giving or lending anything of value: Ohio Rule 3.5(a)(2), its comments, and the Task Force commentary related thereto, raise the question of what was intended in terms of prohibited loans or gifts. The Rule itself distinguishes between a lawyer "lend[ing] anything of value" and a lawyer "giv[ing] anything of more than de minimis value." The basis for the distinction is nowhere explained. Nor does this language, contrary to the Task Force statement in its Ohio Code Comparison to Rule 3.5, "restate" the OH DR 7-110(A) prohibitions. 7-110(A) made no "de minimis" distinction between loans and gifts; instead, there was a flat ban on both, de minimis or otherwise. The water is further muddied by the Task Force's comment, in its ABA Model Rule Comparison to Rule 3.5, that under "the Ohio Rule . . . a lawyer can never give or loan anything of more than de minimis value to a judicial officer, juror, prospective juror, or other official," which of course is not what the Rule says. This mistake is repeated later in the ABA Model Rule Comparison, but this time, instead of saying that both loans and gifts are subject to the de minimis exception, the ban is stated in absolute terms, ignoring the de minimus exception for gifts: "it is never justified for a lawyer to make a gift or loan to a judge, hearing officer, magistrate, official, or employee of a tribunal." To be on safe ground here, one must return to the language of the Rule -- no loans; no gifts of more than de minimus value. And, as set forth below, with respect to the provisions of the OH CJC, the absolute safest ground is no gifts or loans at all.
Comment  notes that as used in division (a)(2) "de minimis"
means an insignificant item or interest that could not raise a reasonable question as to the impartiality of a judicial officer, official, or employee of a tribunal.
Ohio Rule 3.5 cmt. . The comment provides no guidance on the level of gift that might trigger the "reasonable question" threshold.
Two other sources, the Ohio Code of Judicial Conduct (OH CJC) and the Ohio Ethics Law (see ORC 102.03(D)-(F)), may provide some guidance by analogy. Most pertinent is the OH CJC, referenced in Rule 3.5 cmt  and "with which an advocate should be familiar," id.; it looks at gift-giving from the judge-recipient perspective.
OH CJC Canon 2(C)(5) would appear to preclude a judge from accepting "a gift, bequest, favor, or loan from anyone," with listed exceptions, including "[o]rdinary social hospitality" and special occasion (wedding, etc.) gifts from relatives or friends. Canon 2(C)(5)(c) & (d). Also excluded is "[a]ny other gift, bequest, favor, or loan" but "only if the donor is not a party or other person who has come or is likely to come or whose interests have come or are likely to come before the judge . . . ." OJC Canon 2 (C)((5)(h) (emphasis added). There will be lawyers, of course, who do not fit within in the no-gift/loan category set forth in subdivision (c)(5)(h), but as to the many lawyers who do fit, the bar (other than social hospitality) would seem to be absolute, with no de minimis exception.
Given these conflicting signals, it remains to be seen just how Rule 3.5(a)(2) will be interpreted. Under the literal language of the Rule, a lawyer must steer clear of loaning anything to court personnel, whereas gifts of de minimis value are arguably acceptable, despite the more restrictive provisions of OH CJC Canon 2(C)(5)(h) discussed above. On the other hand, aiding judges in violation of the CJC by not following its more restrictive standard does not seem to us to be the wisest course; the safest route would be to avoid such gifts altogether, de minimis or otherwise. This course also would be consistent with the admonition requiring a lawyer "to avoid contributing to a violation of [the CJC]." Rule 3.5 cmt. .
With respect to the language of the Rule itself, two aspects of Rule 3.5(a)(2) deserve special mention. First, the Rule speaks to acts directed not only at decision-makers in adjudications, but also any official or employee of a tribunal. Giving a thing of more than de minimis value to a clerk, bailiff, or secretary may still have an impact on the proceeding and, therefore, is barred. See, under the former OHCPR, Cleveland Bar Ass'n Op. 114 (Dec. 17, 1974).
Second, as noted, the Rule bars a lawyer from giving anything of more than de minimis value to a judge, official, or employee of a tribunal, but prohibits all lending to such persons, de minimis or not. Thus, a small birthday gift to a life-long friend who serves in such a capacity is no longer a violation under the terms of the Rule, as it was under a literal reading of OH DR 7-110(A), which made no distinction based on the value of the loan or gift. See Cleveland Bar Ass'n Op. 114, at 4 (Dec. 17, 1974) (finding improper "[a]ny gift, no matter how small, and even if only in the nature of a Christmas gratuity"). Nor is the Rule limited to actions directed toward those before whom the lawyer has a pending action. But cf. OH CJC Canon 2(C)(5)(h), discussed above, providing judges limited leeway in accepting gifts and loans, other than from parties and other persons (i.e., lawyers) who have or who are likely to come before the judge. That leeway was certainly exceeded in one case, where the judge over a period of years accepted professional football tickets from a lawyer who appeared before him, in violation of OH CJC Canon 2(C)(5)(h). Office of Disciplinary Counsel v. Lisotto, 94 Ohio St.3d 213, 761 N.E.2d 1037 (2002) (public reprimand for violation of Canon; respondent judge subsequently paid lawyer for tickets after realizing error in accepting them).
Under the literal wording of Rule 3.5(a)(2), any assistance given to a judge running for election also would appear to be barred. However, the Code of Judicial Conduct specifically provides that while a judge or candidate for judicial office cannot personally solicit or accept campaign funds, a committee can be formed for this purpose, which committee may solicit campaign contributions from lawyers who are not employees of the court or doing contractual business with the court. OH CJC Canon 7(C)(2)(a)(i).
Receiving any thing of value when lawyer/public official knows it is given to influence public acts: Former OH DR 8-101(A)(3) prohibited a lawyer who is a public official from accepting any thing of value when he or she knows or it is obvious that the thing is offered for the purpose of influencing public acts. This provision of the Code was not carried forward to the new Rules; such conduct would now be covered from an ethics standpoint by the provisions of Rule 8.4; it also may constitute a violation of state substantive law, such as ORC 102.03(D) & (E) of the Ohio Ethics Law. See also ORC 2921.43 (soliciting or receiving improper compensation). See generally sections 8.4:300, :400 (at "Misconduct in other governmental settings"), :500, :1000.
Improper influence of a tribunal: Former OH DR 8-101(A)(2) addressed matters before a tribunal and provided that the lawyer/public official could not:
[u]se his public position to influence, or attempt to influence, a tribunal to act in favor of himself or of a client.
As is the case with former OH DR 8-101(A)(3) (see supra), this provision is not a part of the new Ohio Rules and would be policed by the provisions of Rule 8.4, and, perhaps, Rule 1.11(d)(1). Again, see generally sections 8.4:300, :400 (at "Misconduct in other governmental settings"), :500, :1000.
Obvious examples of conduct that would violate Rule 3.5(a)(1) as it applies to jurors and prospective jurors would be efforts at jury tampering, such as bribing a juror (prohibited by ORC 2921.02) or juror intimidation (prohibited by ORC 2921.03). But division (a)(1) is not limited to criminal conduct; it extends to improper ex parte contact as well. See 2 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 31.4, at 31-5 (3d ed. 2001). Such contact is expressly prohibited ("unless authorized . . . by law or court order") by Rule 3.5(a)(3(ii) and will be considered in the next section, dealing with impermissible ex parte communication.
- Primary Ohio References: Ohio Rule 3.5(a)(3)
- Background References: ABA Model Rule 3.5(b)
- Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 7.131-32, 7.153
- Commentary: ABA/BNA § 61:801; ALI-LGL § 113(1); Wolfram § 11.3.3
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 §§ 7.131-32, 7.153 (1996).
Communication with judicial officers or other officials in pending cases: Ohio Rule 3.5(a)(3)(i) prohibits a lawyer from communicating ex parte with
a judicial officer or other official as to the merits of the case during the proceeding unless authorized to do so by law or court order.
Comment  makes clear that the persons with whom a lawyer may not communicate ex parte during a proceeding are those "serving in an official capacity in the proceeding, such as judges, masters, magistrates, or jurors [see Rule 3.5(a)(3)(ii), discussed below], unless authorized to do so by law, court order, or these rules." Rule 3.5 cmt. .
Unlike the prohibition regarding gifts or loans in Rule 3.5(a)(2), subdivision (a)(3)(i) is more limited. First, it applies only "during the proceeding." Second, it implicates only ex parte communications between a lawyer and "persons serving in an official capacity in the proceeding." (Rule 3.5 cmt. ). Third, only communications "as to the merits of the case" are controlled. Finally, the Rule does not ban such communications, but limits the instances in which they may occur to those authorized "by law or court order."
With respect to the first limitation, the Rule applies only to ex parte communications during the proceedings of a case. In addition to classic civil or criminal litigation matters, the phrase also encompasses proceedings before administrative tribunals, arbitration panels, and the like. See Rule 1.0(o). Accord ABA, Annotated Model Rules of Professional Conduct 341 (6th ed. 2007) (commentary).
While neither the Rule nor the comment expressly so states, the "proceedings" about which the Rule is concerned should be, and in all probability are, limited to adversary proceedings. This is consistent with the view stated by the Task Force in its Ohio Code Comparison that 3.5(a)(3) "incorporates the prohibitions on improper ex parte communications contained in . . . DR 7-110(B)," which did expressly describe the context of the prohibition as "[i]n an adversary proceeding." E.g., under the Code, Disciplinary Counsel v. Tomlan, 118 Ohio St.3d 1, 2008 Ohio 1471, 885 N.E.2d 895 (speaking to judge “about the merits of a pending adversarial proceeding without notice to opposing counsel and without legal justification. . . . violated DR 7-110(B),” id. at para. 31). See also 2 Restatement (Third) of the Law Governing Lawyers § 113(1) cmt. d, at 192 (2000) (prohibition applies to judicial officers authorized to rule on "a disputed matter"). Such an interpretation would take matters such as uncontested divorces, or an agreed distribution, out of the scope of the Rule. Even in an adversary proceeding, Wolfram argues that undisputed matters, such as a stipulated discovery schedule, should not be within the scope of the Rule. As he notes,
[t]here is no reason why every trip to a courthouse should be simultaneously duplicated by a lawyer from the other side if the matter is not or no longer in dispute.
Charles W. Wolfram, Modern Legal Ethics § 11.3.3, at 606 (1986). Accord 2 Restatement (Third) of the Law Governing Lawyers § 113(1) cmt. d, at 192 (2000) (prohibition applies to communications "about a disputed matter"). And a lawyer, whose client concedes an amount owing but not knowing to whom, who pays money into court pursuant to the interpleader provisions of OH Civ R 22, would seem likewise to fall outside the scope of Rule 3.5(a)(3)(i), since the client is taking no position as to how the money should be distributed. On the other hand, an ex parte proceeding for a TRO, where an adversary exists but is absent, is presumably within the ambit of the Rule, but, pursuant to its terms, such communications are nonetheless acceptable because they are "authorized . . . by law" (OH Civ R 65(A)). See Millstein v. Millstein, 2002 Ohio 4783, 2002 Ohio App. LEXIS 4854, at para. 205 (Cuyahoga) (rejecting ex parte argument; court notes that an applicable local rule expressly provides that TROs "'will be granted on an ex parte basis . . . .'"). Accord 2 Restatement (Third) of the Law Governing Lawyers § 113(1) cmt. e (2000). See also section 3.3:800, concerning the enhanced duty of disclosure in authorized ex parte proceedings.
Second, the Rule restricts only communications made by a lawyer to "a judicial officer or other official." See generally Cordero v. Vasquez, No. C.A.L-87-205, 1988 Ohio App. LEXIS 2808 (Lucas July 15, 1988) (after lawyer for plaintiff-mother initiated ex parte communication with trial judge to discuss pending child-custody case, trial judge overruled referee's report and recommendation and ordered custody to mother. Citing former OH DR 7-110 and corresponding ex parte provisions of OH CJC, appellate court vacated judgment for this and other errors.). See Glassman v. Offenberg, No. 67334, 1995 Ohio App. LEXIS 5388 (Cuyahoga Dec. 7, 1995), where the court referred to Local Domestic Relations Division Rule 6(A), "which prohibits ex parte communications between an attorney and either the judge or referee who is presiding over the case. Id. at *11 (emphasis added).) The Restatement view is that the prohibition against communications with a "judicial officer" applies to
a judge, master, hearing officer, arbitrator, or other officer authorized to rule upon evidence or argument about a disputed matter.
2 Restatement (Third) of the Law Governing Lawyers § 113(1) cmt. d, at 192 (2000). Although the Restatement does not take a position on the issue of ex parte "communications with officials with decision-making authority in nonadjudicative matters, such as a legislator or the policymaking head of a governmental department," id., it seems reasonably clear from the language of 3.5(a)(3)(i) that such contacts would not be within the scope of the Rule, which covers contacts with "a judicial officer or other official" serving in "the proceedings, such as judges, masters, magistrates, or jurors." Rule 3.5 cmt. . But see Ohio Rule 3.9, requiring conformance with Rule 3.5 by advocates in nonadjudicative proceedings. Likewise, communications to court employees are not included; nor are communications with judges or other officials before whom the case is not pending or communications with the same judge on behalf of a separate client about a different proceeding -- the Rule deals with "the case" and "the proceeding," not some other case or proceeding. See Howard v. Simon, 18 Ohio App.3d 14, 480 N.E.2d 99 (Cuyahoga 1984) (former OH DR 7-110(B) did not prohibit ex parte communication with judge in pending matter concerning related but different proceeding). The Ohio Code of Judicial Conduct, with certain exceptions, prohibits a judge from participating in ex parte communications "concerning a pending or impending proceeding." OH CJC Canon 3(B)(7). See Office of Disciplinary Counsel v. Karto, 94 Ohio St.3d 109, 760 N.E.2d 412 (2002) (Canon violated where respondent judge contacted prosecutor and asked him to bring felony charges against juveniles against whom delinquency complaint had been filed by employee of juvenile probation department as result of respondent's ex parte conversation with employee.)
While by its terms Rule 3.5(a)(3)(i) applies to any lawyer who engages in prohibited ex parte communications, it seems implicit from the make-up of the Rule and its exceptions that it is directed only at a lawyer involved in "the proceeding." See Howard v. Simon supra. But even a lawyer not so involved may violate other provisions of the OHCPR by communicating or attempting to cause another to communicate with a judge concerning a pending case. This may well explain why the Supreme Court did not invoke former OH DR 7-110(B) in Office of Disciplinary Counsel v. Detty, 96 Ohio St.3d 57, 2002 Ohio 2992, 770 N.E.2d 1015 (respondent, romantically involved with plaintiff in divorce case, attempted, both directly and through another judge, to exert political pressure on judge in effort to change way things were going before judge's magistrate in the divorce case; respondent's conduct violated OH DR 1-102(A)(5) and (6): "it is improper for an attorney not representing a party in the case to directly or indirectly communicate with a judge to influence the outcome of pending litigation." Id. at ¶ 5.).
Third, unlike MR 3.5(b), Rule 3.5(a)(3)(i) is concerned (as was former OH DR 7-110(B)) only with communications "as to the merits of the case"; communication on other topics remains permissible. This phrase, however, is ambiguous. It clearly addresses communications addressed to substantive issues in an action, but does it extend to purely procedural matters as well? (Of course, the distinction between substance and procedure is not absolute -- some procedural motions, like summary judgment motions, may deal with the merits of the case directly and others do so indirectly, such as those addressing evidentiary issues that shape how the merits of the cause will be established.) For example, would ex parte discussion of a motion to dismiss for lack of personal jurisdiction fall within the Rule? It does involve the merits of the case, in the sense that it speaks to whether the action should proceed in the forum, but it does not speak to whether the substantive claim has merit. Wolfram strongly takes the view that the
exception for nonmerits communications should be strictly limited to communications that are neither about the factual or legal issues in the case nor about matters that a reasonable lawyer would consider important for tactical or strategic reasons. The nonmerits exception should not be employed to differentiate between various phases of the proceeding.
Charles W. Wolfram, Modern Legal Ethics § 11.3.3, at 605 (1986).
In the analogous section of the Code of Judicial Conduct, ex parte communications concerning a pending or impending proceeding are banned in general, but an exception is made as follows: "Where circumstances require, ex parte communications for scheduling, administrative purposes, or emergencies that do not address substantive matters or issues on the merits are permitted if the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication." OH CJC Canon 3(B)(7)(a). See State v. Crawford, No. 88-C-18, 1989 Ohio App. LEXIS 3056 (Columbiana July 27, 1989) (ex parte conversation concerning discovery request is permissible where conversation was had only to correct clerical error in judge's order). Clearly, the spirit of Rule 3.5(a)(3)(i) is best met by limiting ex parte communications to the sort authorized in the Code of Judicial Conduct. Compare In re Disqualification of Williams, 74 Ohio St.3d 1248, 657 N.E.2d 1352 (1993) (ex parte communication initiated by judge with party's law director, not for scheduling or ministerial purposes, but concerning substantive matter of party's likelihood of contributing to settlement; disqualification ordered "[t]o avoid even the appearance of impropriety," id. at 1250, 657 N.E.2d at 1353), with In re Disqualification of Christiansen, 88 Ohio St.3d 1211, 723 N.E.2d 1100 (1999) (affidavit of disqualification denied where judge had settlement discussion with representative of defendant after parties had previously authorized judge to conduct ex parte settlement discussions with representatives of each party, even though "the more appropriate approach would have been to include counsel for the defendants in the settlement discussion with the corporate agent," id. at 1212, 723 N.E.2d at 1101).
While case law on this issue is sparse, a decision by the Tenth District Court of Appeals is instructive with respect to OH CJC Canon 3(B)(7)(a). McDermott v. Tweel, 151 Ohio App.3d 763, 2003 Ohio 885, 786 N.E. 2d 67 (Franklin), was a medical malpractice case in which a trial setting before a visiting judge was postponed because the judge was scheduled to sit for one week only and it was estimated that the case would take two weeks to try. After plaintiff's counsel left the courthouse, defense counsel appeared before the originally assigned judge to seek direction on how to proceed, given the visiting judge's inability to try the case. The trial court's entry indicated that defense counsel was told by the judge that the trial would be rescheduled, but that the court would move the rescheduled date if it was not a good date for plaintiff. After summary judgment was granted to the two doctor defendants, plaintiff appealed; her first assignment of error was that the court's ex parte meeting with defense counsel was improper and prejudicial to her. In rejecting this assignment of error, the court of appeals relied directly on the language of OH CJC Canon 3(7)(a) and held that
the trial court's entry of April 10, 2002, plainly states that the only matters discussed during the ex parte meeting between it and defense counsel related to the scheduling of a new trial date and a cutoff date for the filing of motions. Further, the trial court explicitly indicated that it was willing to reschedule the trial date to accommodate plaintiff's schedule if necessary. Plaintiff does not suggest that substantive matters were discussed during the meeting but asserts that he [sic she] was prejudiced by the trial court's decision to extend the time for filing motions without input from plaintiff's counsel, in that such extension allowed defendants to file the motions for summary judgment which ultimately led to the dismissal of her claims. The trial court's extension of the motions deadline applied to plaintiff as well as defendants and, in fact, plaintiff availed herself of the extension by filing a motion for partial summary judgment. The fact that the trial court's decision to extend the time for filing motions ultimately led to the dismissal of plaintiff's claims on the merits, while perhaps prejudicial to plaintiff in the broadest sense of the word, was not unfairly prejudicial.
Id. at para. 23 (emphasis by the court; bracketed material added). See also Westfield Cos. v. O.K.L. Can Line, 2003 Ohio 7151, 2003 Ohio App. LEXIS 7151 (Hamilton) (Painter, J.), where, in a nondisciplinary context, the court found that the trial judge's ex parte communication to the jury, in which he made disparaging remarks about trial counsel, constituted prejudicial error. While both parties could have been prejudiced by the comments, the court noted that plaintiff-appellant, as the party with the burden of proof, suffered more. See id. at ¶¶ 52-55. A case that seems out of step with the substantive or "on the merits" limitation is Codero v. Vazquez, No. C.A.L.-87-205, 1988 Ohio App. LEXIS 2808 (Lucas July 15, 1988), where the court interpreted the OH CJC to restrict ex parte communications regardless of their impact: "What is actually discussed by the trial court during an ex parte conference is irrelevant." Id. at *8.
The Ninth District Court of Appeals held that sending a judge a copy of a grievance, filed with the local bar association against opposing counsel and apparently stemming from opposing counsel's conduct in the case, was not a communication on the merits of the cause and, hence, fell outside the former OH DR 7-110 prohibition. Carter v. Payer, No. 16765, 1994 Ohio App. LEXIS 5129 (Summit Nov. 9, 1994). Nor was communicating ex parte with the judge on behalf of another client about a different case. Howard v. Simon, 18 Ohio App.3d 14, 480 N.E.2d 99 (Cuyahoga 1984). ("Howard does not allege that the merits of [his] case were discussed." Id. at 17, 480 N.E.2d at 103.).
In contrast, ex parte communications by the lawyer to the acting judge assigned to the matter at issue, made after his client had been convicted and sentenced to 30 days in jail, with the purpose of obtaining mitigation of the sentence, would constitute a communication "as to the merits of the case." While not addressing the "merits" issue explicitly, the court in City of Garfield Heights v. Wolpert, 122 Ohio App.3d 287, 701 N.E.2d 734 (Cuyahoga 1997), affirmed a finding of indirect contempt against the lawyer based on his incessant telephone calls to the judge and conversations with the judge on two or three occasions on the subject. The appellate court cited former OH DR 7-110 as prohibiting "ex parte communications with judges, officials, and employees of a tribunal" (the reference to "employees" is in error), and concluded that
we 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. See also Wolfe v. Little, No. 18718, 2001 Ohio App. LEXIS 1902 (Montgomery Apr. 27, 2001) (in context of finding no ulterior purpose as required for abuse of process claim, appellate court said of underlying allegation of contact with trial judge by other side, resulting in entry increasing judgment for other side from $25,000 to $300,000, that "an ex parte communication with the trial court is completely inappropriate and could possibly subject the attorney to disciplinary action, if proven," id. at *9).
Fourth, even with respect to communications on the merits directed to presiding officials in the proceeding, the Rule does not prohibit all communication, but only certain ex parte communication. Of course the Rule does not apply to communication in the presence of the other side during the official proceeding, since such communications are by definition not "ex parte" and in any event are clearly authorized by law. Both oral and written communications are permitted, as long as notice appropriate to the circumstances is provided to opposing counsel, or to the adverse party if unrepresented. See Stark County Bar Ass'n v. Arkow, 104 Ohio St.3d 265, 2004 Ohio 6512, 819 N.E.2d 284 (inadequate notice; placement of proposed order in custody case in opposing lawyer's mailbox at court with letter erroneously indicating respondent would seek judge's approval on January 20, rather than intended January 10 date, which was next day, violated former OH DR 7-110(B)). If the lawyer communicates in writing to the tribunal, a copy of the writing should be delivered promptly to the other side. See Ohio State Bar Ass'n Informal Op. 73-10 (Aug. 8, 1973) (submitting to judge confidential trial brief not available to opposing counsel is improper). But see Crawford v. Ribbon Tech. Corp., 143 Ohio App.3d 510, 758 N.E.2d 674 (Franklin 2001) (after ex parte conversation with magistrate by defendant's counsel, magistrate in supplemental decision added attorney fees to sanctions against plaintiff's attorney; attorney's assignment of error based on the ex parte contact rejected because he was "given notice of the conversation, albeit, after the fact. Most important, however, Harwood [plaintiff's lawyer] filed objections to the supplemental decision. Therefore, Harwood was afforded notice and the opportunity to respond and thus was not prejudiced." Id. at 513, 758 N.E.2d at 676.) One would have thought former OH DR 7-110(B) relevant to this decision, and yet neither the court nor (insofar as one can tell from the appellate court opinion) the appellant raised it. From an OH DR 7-110(B) perspective, the decision is almost certainly incorrect -- notice after the fact cannot be "adequate notice" -- but the disciplinary rule appears to have been overlooked by all concerned.
And even ex parte communication with the judge about the merits does not violate the Rule if it is authorized "by law or court order." The obvious example is an application for a temporary restraining order under OH Civ R 65(A).
An interesting and informative article on ex parte communications is Jack M. Weiss, It Depends on the Meaning of "Ex Parte," Litig., Winter 2003, at 27. A more recent discussion of the subject is found in Kathryn A. Thompson, Private Talks, ABAJ, Feb. 2007, at 20 (reviewing MR 3.5(b) and Model Code of Judicial Conduct Canon 3(B)(7)).
Finally, as a postscript to this section, consider the disciplinary decision in Cincinnati Bar Ass'n v. Sauter, 96 Ohio St.3d 136, 2002 Ohio 3610, 772 N.E.2d 620. In Sauter, former OH DR 7-110(B) was neither invoked nor applied (the lawyer was publicly reprimanded for violation of OH DR 1-102(A)(5)), because the case involved a communication running from the court to lawyers involved in the pending case -- not by the judge, but by his lawyer/law clerk. Despite not being within the scope of the rule (or the CJC) for this reason, it nevertheless is a classic example of an improper communication that met all of the other indicia of the rule. First, it concerned an adversary proceeding (a contested valuation appeal in an eminent-domain case); second, it did indeed involve a communication as to the merits of the case -- the clerk gave substantive information to lawyers for the City of Cincinnati appealing the case, shortly before oral argument, as to how they might best argue their appeal); and third, it was done ex parte, without notice to the lawyers on the other side of the appeal. The Sauter case is further discussed at section 8.4:500.
Limitations on communications with jurors and prospective jurors: Particularly before the jury is selected, trial counsel has a substantial interest in obtaining information about prospective jurors in order to conduct an effective voir dire. Unregulated contact with prospective jurors, however, may invade the jurors' legitimate privacy interests or may provide an avenue for undue influence that could undercut a juror's impartiality if selected to serve on the case. To accommodate these competing concerns, the Rule does not restrain investigation of prospective jurors, but prohibits direct ex parte communication with them "during the proceeding," unless authorized by law or court order. Ohio Rule 3.5(a)(3)(ii). Although the Rule does not define this time period, it would by definition have to include that portion of the proceeding during which jurors are "prospective" – i.e., when they have not yet been seated as jurors, but are members of the venire or jury pool from which jurors are drawn. See 2 Restatement (Third) of the Law Governing Lawyers § 115(1) (2000) ("A lawyer may not: (1) except as authorized by law, communicate with or seek to influence a person known by the lawyer to be a member of a jury pool from which the jury will be drawn."). Accord 2 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 31.3 (3d ed. Supp. 2004-2); Laws. Man. on Prof. Conduct (ABA/BNA) § 61:808 (2006).
During trial, because ex parte communication with jurors outside the course of the official proceedings raises the possibility of jury tampering, such communications are barred, again unless specifically authorized by law or court order. Rule 3.5(a)(3)(ii). Under former OH DR 7-108(B), the prohibition extended not only to lawyers connected with the case ((B)(1)), but also precluded any lawyer from communicating with a juror concerning the case. ((B)(2)). The new Rule does not directly address this issue; the strictures of division (a)(3)(ii) (like all of Rule 3.5) are imposed on "[a] lawyer." The Task Force Report and related documents give no indication that the drafters intended a change on this point and the language of the Rule can be read to restate the former practice, since its language "[a] lawyer" could encompass any lawyer, whether directly involved in the proceeding or not. See also Rule 3.5 cmt. .
We are not aware of any Ohio disciplinary cases or ethics opinions dealing with ex parte jury contact.
Juror communication - Other implications: Impermissible contact with jurors is regulated outside the disciplinary process as well. Such activity may warrant a new trial or relief from judgment, see OH Civ R 59(A)(2), 60(B)(3). See generally Howard P. Fink, Arthur F. Greenbaum & Charles E. Wilson, Guide to the Ohio Rules of Civil Procedure §§ 59-7 & 60-8 (2006 ed.). If the behavior constitutes jury tampering, the lawyer will be subject to criminal penalties. See ORC 2921.02 (prohibiting bribery of juror); ORC 2921.03 (prohibiting juror intimidation in civil action or proceeding).
- Primary Ohio References: Ohio Rule 3.5(a)(4)
- Background References: ABA Model Rule 3.5(c)
- Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 7.132
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 § 7.132 (1996).
Ohio Rule 3.5(a)(4) prohibits a lawyer from communicating with a juror or prospective juror after the jury is discharged, if
(i) the communication is prohibited by law or court order;
(ii) the juror has made known to the lawyer a desire not to communicate; [or]
(iii) the communication involves misrepresentation, coercion, duress, or harassment.
Ohio Rule 3.5(a)(4) is an essentially verbatim restatement of MR 3.5(c), which was added to the Model Rule by the 2002 amendments. (See also Ohio Rule 3.5 cmt. , which sheds little additional light on the subject.) As noted in ABA, Annotated Model Rules of Professional Conduct 343 (6th ed. 2007) (commentary),
[t]his subsection permits more post-verdict juror contact than the prior Model Rule, but also affords jurors greater protection than the Model Code's DR 7-108 prohibition against asking jurors questions or making comments that are "calculated merely to harass or embarrass the juror [or] to influence his actions in future jury service."
(Bracketed material added to conform to language of OH DR 7-108.)
In reviewing the three prohibited categories in Rule 3.5(a)(4), (i) there is no Ohio "law" of which we are aware prohibiting such contact; on the other hand, a court can "order" that such contact not take place by rule or in a specific case. See Tasin v. SIFCO Indus., 50 Ohio St.3d 102, 553 N.E.2d 257 (1990) (upholding local rule prohibiting post-verdict contact by counsel (or parties) with jurors). Subdivision (ii) is self-explanatory. Subdivision (iii) is both more and less inclusive than former OH DR 7-108(D). More inclusive in prohibiting "misrepresentation, coercion, duress"; less inclusive in dropping "embarrass[ment]" and communications "calculated . . . to influence [the juror's] actions in future jury service." (These subdivision (iii) distinctions may be much ado about very little.) Finally, the 3.5(a)(4) prohibitions apply to "[a] lawyer," which can be read to mean "any lawyer." The 7-108(D) prohibitions applied only to lawyers "connected" to the case.
- Primary Ohio References: Ohio Rule 3.5(a)(5), (6); ORC 2705
- Background References: ABA Model Rule 3.5(d)
- Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 1.29, 7.107
- Commentary: ABA/BNA § 61:902; ALI-LGL § 105; Wolfram § 12.1.3
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 §§ 1.29, 7.107 (1996).
Two provisions in the Ohio Rules address this issue – Rules 3.5(a)(5) and (6). The former prohibits a lawyer from engaging "in conduct intended to disrupt a tribunal." The latter from engaging "in undignified or discourteous conduct that is degrading to a tribunal." Ohio Rule 3.5(a)(5) had no counterpart in the former OHCPR, whereas Ohio Rule 3.5(a)(6) is analogous to former OH DR 7-106(C)(6).
Initial issues: Three threshold questions emerge in interpreting these provisions. The first is whether they are dependent on the lawyer playing a particular role, as was the case under DR 7-106(C) -- all of the subdivisions of 7-106(C), including (C)(6), were introduced by language limiting their application to conduct of a lawyer "appearing in his professional capacity before a tribunal." Thus, a lawyer committing conduct otherwise violative of 7-106(C)(6) would not breach the rule if, for example, it occurred while acting as a witness in a case, as opposed to "in his professional capacity."
The second issue is whether the conduct has to occur in court. Once again, under the former rule, this was answered by the introductory language of 7-106(C) -- it had to occur in the context of a lawyer's "appearing . . . before a tribunal." Thus, writing an intemperate letter to the editor criticizing a judge was held to be beyond the reach of the former rule. Crawford County Bar Ass'n v. Nicholson, 66 Ohio St.3d 585, 613 N.E.2d 1025 (1993) (rejecting Board's finding of violation, inasmuch as "DR 7-106(C)(6) governs only conduct by a lawyer 'appearing in his professional capacity before a tribunal.'" Id. at 588, 613 N.E.2d at 1027. While it is unclear from the Nicholson opinion whether the letter concerned cases in which respondent was involved "in a professional capacity," the answer to that question was irrelevant under the court's reasoning, because it did not occur "in appearing . . . before a tribunal." (If such a letter contained knowingly false accusations against a judge, it would have been covered by former OH DR 8-102 (now Rule 8.2(a)). See section 8.2:200.) However, in a 2007 case, the "appearing before a tribunal" language was construed broadly. Thus, in Disciplinary Counsel v. Scurry, 115 Ohio St.3d 201, 2007 Ohio 4796, 874 N.E.2d 521, the Court, although not addressing the "appearing before a tribunal" language directly, found that respondent had violated DR 7-106(C)(6) by telephoning court personnel while in an inebriated state, during which conversations "he rambled on in expletives and incomplete sentences." Id. at para. 10. The unanimous opinion in Scurry rather clearly indicated both that the violative conduct need not occur in the courtroom per se and that it need not be directed to the judge – telephonic misconduct toward court staff, such as court clerks and deputy clerks, was sufficient.
Since the introductory appearing-in-professional-capacity-before-tribunal language from the former disciplinary rule has not been retained, it seems likely that the Scurry reading would be the result under 3.5(a)(6) as well. Whether the same can be said of the result in Nicholson, where the conduct involved statements in a newspaper rather than being made to the court or its personnel, is unclear. Note that the Task Force states in the Ohio Code Comparison to Rule 3.5 that "Rule 3.5(a)(6) corresponds to DR 7-106(C)(6)." While there is little else to point to regarding 3.5(a)(6), there is additional, diametrically opposed, commentary on the in-court/out-of-court issue as it relates to Rule 3.5(a)(5). Compare ABA, Annotated Model Rules of Professional Conduct 346 (6th ed. 2007) (commentary) (stating with respect to the Model Rule counterpart to Ohio Rule 3.5(a)(5) that "[c]onduct need not occur inside the courtroom to be disruptive to a tribunal"), with 2 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 31.6, at 31-8 (3d ed. 2001) ("virtually impossible" that action taken by lawyer outside the courtroom could disrupt tribunal). [We think the ABA has the better of that argument.] In sum, it remains to be seen whether conduct condemned by Ohio Rules 3.5(a)(5) and (6) will be limited to that occurring in a lawyer's professional capacity or his appearance before a tribunal. Probably not.
The third question is whether or not the prohibited conduct must relate to a pending proceeding before a tribunal. The issue might come up if a lawyer criticized a judge generally, without reference to a specific case or about a case now concluded. The language of Comment , referring to the duties set forth in (a)(5) and (a)(6) as being applicable "to any proceeding of a tribunal, including a deposition" (it gives no indication that these duties apply other than in that context), suggests that a pending proceeding must be implicated. The Task Force's ABA Model Rule Comparison to Rule 3.5, however, detailing the difference in focus between subdivisions (a)(5) and (a)(6), is also relevant here:
Rule 3.5(a)(5) addresses a wide range of conduct that, although disruptive to a pending proceeding, may not be directed to the tribunal itself, such as comments directed toward opposing counsel or a litigant before the jury. Rule 3.5(a)(6) speaks to conduct that is degrading to a tribunal, without regard to whether the conduct is disruptive to a pending matter.
As to subdivision (a)(5), this statement clearly supports the view that the disruptive conduct prohibited must relate to a pending proceeding. But regarding (a)(6), the Comparison can be read as indicating that a violation need not concern a pending proceeding, although this is by no means clear, given the language, quoted above, of Ohio Rule 3.5 cmt. .
Elements of violation: Ohio Rule 3.5(a)(5) has two elements. A violation occurs when a lawyer (1) acts intentionally to (2) disrupt a tribunal. Actual disruption need not occur. Ohio Rule 3.5(a)(6), in contrast, does not turn on the lawyer's intent, but requires that undignified or discourteous conduct in question actually be "degrading to the tribunal." Under former OH DR 7-106(C)(6) (the Code analog to 3.5(a)(6)), sanctions often were imposed for inappropriate behavior directed at the judge or other court personnel. Lawyers were sanctioned under this provision for:
disrupting criminal proceedings by insisting that respondent, not court-appointed counsel, was the attorney for defendant, as a result of which respondent was found to be in criminal contempt; at a subsequent hearing held to enable respondent to purge himself of the contempt by committing not to further interfere in the criminal proceedings, respondent refused to do so and accused the judge of collusion with the prosecutor’s office. Columbus Bar Ass’n v. Vogel, 117 Ohio St.3d 108, 2008 Ohio 504, 881 N.E.2d 1244.
a pervasive pattern of egregious behavior disruptive of criminal proceedings in which respondent represented the defendant; conduct "appears to have been an effort to create 'an atmosphere of utter confusion and chaos . . . .' [Quoting from Mayberry v. Pennsylvania, 400 U.S. 455, 462 (1971).] Rather than advancing the pursuit of justice, respondent advanced obstruction, obfuscation, and opprobrium." Disciplinary Counsel v. LoDico, 106 Ohio St.3d 229, 2005 Ohio 4630, 833 N.E.2d 1235, at ¶ 24 (eighteen-month suspension imposed, with last six months conditionally stayed);
making, in court filings, extended and heated accusations of dishonesty and of ignoring of well-established law directed against a panel of the Eighth District Court of Appeals that had ruled against his client, Office of Disciplinary Counsel v. Gardner, 99 Ohio St.3d 416, 2003 Ohio 4048, 793 N.E.2d 425 ("unfounded attacks against the integrity of the judiciary require an actual suspension from the practice of law." Id. at ¶ 36. Six-month suspension imposed);
constantly arguing with and interrupting the judge and showing little or no respect for witnesses, among other violations, by lawyer appearing pro se, Office of Disciplinary Counsel v. Donnell, 79 Ohio St.3d 501, 684 N.E.2d 36 (1997) ("As the board aptly noted, 'This is yet another textbook example of why an attorney should not represent himself.'" Id. at 503, 684 N.E.2d at 38.);
filing seven affidavits of prejudice against a visiting judge who had no prior connection to the litigation or its participants, Office of Disciplinary Counsel v. O'Leary, 67 Ohio St.3d 425, 619 N.E.2d 410 (1993);
accusing the judge of "bullshit," Office of Disciplinary Counsel v. Mills, 93 Ohio St.3d 407, 408, 755 N.E.2d 336, 337 (2001); or of playing a "silly game," Office of Disciplinary Counsel v. Grimes, 66 Ohio St.3d 607, 614 N.E.2d 740 (1993);
calling the judge an alcoholic, Mahoning County Bar Ass'n v. Cregan, 69 Ohio St.3d 550, 634 N.E.2d 1005 (1994);
giving the judge an obscene finger gesture, Crawford County Bar Ass'n v. Nicholson, 66 Ohio St.3d 585, 613 N.E.2d 1025 (1993); and
threatening the judge or court personnel. Mahoning County Bar Ass'n v. Cregan, 69 Ohio St.3d 550, 634 N.E.2d 1005 (1994).
A lawyer entering court with her briefcase displaying a bumper sticker supporting the judge, in a possible attempt to win the judge's favor, violated this provision. Cincinnati Bar Ass'n v. Sullivan, 65 Ohio St.3d 293, 603 N.E.2d 983 (1992). So too did begging on one's knees for mercy for a client. Office of Disciplinary Counsel v. Pagac, 72 Ohio St.3d 341, 650 N.E.2d 423 (1995) (in one instance, attorney Pagac also asked the client's relatives to stand and promise that they would vote for the judge if he granted probation!).
All of these examples would similarly violate Rule 3.5(a)(6); some, as in LoDico and Donnell, would violate Rule 3.5(a)(5) as well.
While the language of the disciplinary rule (like Rule 3.5(a)(6)) addressed only conduct degrading "to a tribunal," it was construed to apply as well to conduct directed toward opposing counsel. Office of Disciplinary Counsel v. Mills, 93 Ohio St.3d 407, 408, 755 N.E. 336, 337 (2001) (berating opposing counsel at hearing before magistrate for having sought continuances "five f_ _ _ _ _ g times."); Office of Disciplinary Counsel v. Levin, 35 Ohio St.3d 4, 517 N.E.2d 892 (1988) (attorney who threatened and addressed opposing counsel with variety of expletives and unprofessional terms during deposition violated numerous provisions of the OHCPR, including OH DR 7-106(C)(6)). Moreover,
threatening another attorney, Office of Disciplinary Counsel v. Levin, 35 Ohio St.3d 4, 517 N.E.2d 892 (1988),
shoving another attorney, Mahoning County Bar Ass'n v. Cregan, 69 Ohio St.3d 550, 634 N.E.2d 1005 (1994), and
including inappropriate comments in the margin of interrogatories, Crawford County Bar Ass'n v. Nicholson, 66 Ohio St.3d 585, 613 N.E.2d 1025 (1993),
all warranted sanction under former OH DR 7-106(C)(6). (In a later disciplinary decision involving Nicholson, the respondent engaged in further disruptive courtroom tactics and thus violated the probation imposed in the 1993 decision. As a result, his six-month suspension was reinstated. See Office of Disciplinary Counsel v. Nicholson, 80 Ohio St.3d 275, 685 N.E.3d 1234 (1997) (accusing the judge of making an obscene finger gesture during respondent's presentation and referring to the female prosecutor as "a scared, whimpy[sic], little girl lawyer," id. at 276, 685 N.E.2d at 1235 (bracketed material by the Court)).
It is unclear whether this expansive reading of DR 7-106(C) -- rendering it applicable to conduct directed at opposing counsel -- will continue under Rule 3.5(a)(6), although the ABA Model Rule Comparison language quoted earlier in this section would indicate that, in contrast to division (a)(5), it will not. (Conduct degrading to someone other than a tribunal, however (such as opposing counsel), may well be policed by other Rules, such as Rule 4.4(a).)
Behavior condemned under DR 7-106(C)(6) was often found to violate the more general prohibitions of former OH DR 1-102(A)(5) and (6) as prejudicial to the administration of justice or reflecting adversely on the lawyer's fitness to practice law (now, respectively, Rules 8.4(d) and (h)), and, at times, would arise in a context that violated other provisions of OH DR 7-106 as well. See LoDico supra (conduct also violated OH DR 1-102(A)(5) and (6), and OH DR 7-106(A) and (C)(7)); Office of Disciplinary Counsel v. Levin, 35 Ohio St.3d 4, 517 N.E.2d 892 (1988) (attorney who threatened and addressed opposing counsel with expletives and other unprofessional terms during deposition violated, in addition to 7-106(C)(6), 1-102(A)(5) and (6), and 7-106(C)(2), (5), and (7)). In other instances, conduct degrading to or disruptive of the tribunal was punished under OH DR 1-102(A)(5) and (6) alone. See Office of Disciplinary Counsel v. Pridemore, 28 Ohio St.3d 106, 502 N.E.2d 635 (1986), where the Supreme Court held that a mentally unstable attorney's bizarre courtroom behavior that disrupted a criminal proceeding in which he was not acting as counsel, together with separate erratic and threatening behavior toward various doctors, violated former OH DR 1-102(A)(5) and (6). (The lawyer's courtroom behavior included "telling the court about his health, an alleged wiretap of his telephone, and about his meeting with a Pulitzer prize winner, a political cartoonist, and a close relative of the chief writer of T.V. Guide magazine." Id. at 106, 502 N.E.2d at 635). Appearing before the court in an intoxicated condition, causing the court to have to reschedule the matter, was also held to violate OH DR 1-102(A)(5) and/or (6). Cincinnati Bar Ass'n v. Bregger, 63 Ohio St.3d 374, 588 N.E.2d 781 (1992) (OH DR 1-102(A)(5)); Trumbull County Bar Ass'n v. Landers, 61 Ohio St.3d 88, 572 N.E.2d 677 (1991) (OH DR 1-102(A)(5) & (6)).
Occasionally, as a defense to making inappropriate comments, lawyers have contended that the judge and/or the opposing attorney acted improperly first. This argument has fallen upon deaf ears; according to the Supreme Court, the attorney is not thereby authorized to respond with a temper tantrum of his own. See Office of Disciplinary Counsel v. Mills, 93 Ohio St.3d 407, 755 N.E.2d 336 (2001) (berating magistrate and opposing counsel with obscenities and engaging in tirade violated former OH DR 7-106(C)(6); such response would have been inappropriate even if counsel and magistrate had acted improperly first). The Court similarly rejected arguments that the judge's supposed predilection for vulgarity induced the attorney's comments; disrespect for the court is not excused by a judge's tendency toward profanity. Greater Cleveland Bar Ass'n v. Carlin, 67 Ohio St.2d 311, 423 N.E.2d 477 (1981). [An aptly named respondent, although his first name was not George.] Nor did the Court condone such conduct merely because the case was bitterly contested and the lawyer passionately believed in the client's innocence. Greater Cleveland Bar Ass'n v. Milano, 9 Ohio St.3d 86, 459 N.E.2d 496 (1984). As the Ohio Supreme Court stated in State v. Wilson, 30 Ohio St.2d 312, 314-15, 285 N.E.2d 38, 40 (1972):
No amount of provocation on the part of the judge can be permitted to excuse counsel from the obligation of his oath of office ("I will maintain the respect due to courts of justice and judicial officers"); to excuse him from his duties imposed by the Code of Professional Responsibility; or to condone the acts of counsel if in fact they are themselves contemptuous.
The respondent in LoDico argued that, given the "passion and zeal" inherent in criminal defense representation, "this grievance implicates the unique question of whether criminal defense counsel can be subjected to professional discipline for the conduct described." 106 Ohio St.3d 229, 2005 Ohio 4630, 833 N.E.2d 1235, at ¶ 22. The Court's answer to this "unique question" was not surprising:
Although criminal cases bring responsibility and necessity of a vigorous defense, an attorney is not endowed with a concomitant right to denigrate the court in discharging that responsibility.
. . . No proper defense or strategy warrants the type of misconduct exhibited by respondent.
Id. at ¶¶ 30, 31.
In Toledo Bar Ass'n v. Batt, 78 Ohio St.3d 189, 677 N.E.2d 349 (1997), the Supreme Court disbarred respondent, whose many transgressions included an appearance in his capacity as city solicitor before the Ohio Hazardous Waste Facility Board, where
respondent engaged in contemptuous, undignified, and discourteous conduct. We recognize that an attorney must zealously represent his client, but we also recognize that an attorney has a duty to be civil to opposing counsel and the court. Respondent's bullying tactics toward opposing witnesses, opposing counsel, and the board that are revealed in the record of this hearing have no place in our jurisprudence.
Id. at 192, 677 N.E.2d at 352. In the Court's description of the panel's findings on this count, more detail was provided:
This conduct included using insulting or intemperate language, as well as shouting or screaming at, arguing with, or otherwise harassing the hearing panel, opposing counsel, or witnesses. The respondent publicly called the presiding judge a "marginal incompetent," and implied that panel members were biased, and were responding to political measures.
Id. at 190, 677 N.E.2d at 351. Interestingly, not only were OH DR 7-106(C)(6) and other 7-106(C) subsections invoked, but OH DR 7-101(A)(1) as well, "for failing to avoid offensive tactics and failing to treat with courtesy and consideration all persons involved in the legal process." Id. This was an expansive reading of former OH DR 7-101(A)(1), which stated in this regard merely that by avoiding offensive tactics and treating others with courtesy, the lawyer did not thereby violate her obligation under the Code to represent the client zealously. See section 1.3:200.
Trial conduct of the type discussed here, if engaged in by a prosecutor, can lead to reversal of a criminal conviction for prosecutorial misconduct. See, e.g., State v. Keenan, 66 Ohio St.3d 402, 613 N.E.2d 203 (1993) (criminal conviction overturned for prosecutorial misconduct, which included denigrating defense counsel); State v. Smith, 14 Ohio St.3d 13, 470 N.E.2d 883 (1984) (criminal conviction overturned for prosecutorial misconduct, which included falsely implying that defense counsel suborned perjury).
Contempt: Such disruptive conduct is also regulated by courts through their inherent and statutory contempt power, as well as by Rule 3.5(a)(5). See LoDico supra (conduct resulted in both contempt citation and disciplinary proceedings). In Verbanic v. Verbanic, 70 Ohio St.3d 41, 635 N.E.2d 1260 (1994), a case in which "the record is inundated with examples of how a case should not be tried," id. at 41, 635 N.E.2d at 1261, an attorney was twice held in contempt -- first, for his improper questions and making derogatory comments about the appellee (that he was "queer" and suggesting that he had AIDS) and second, for shoving another attorney during the trial. For this and other extensive misconduct in Verbanic, including violation of former OH DR 7-106(C)(6), and for violations in numerous other matters, the lawyer was permanently disbarred. Mahoning County Bar Ass'n v. Cregan, 69 Ohio St.3d 550, 634 N.E.2d 1005 (1994).
Direct contempt - The standards: The type of contempt relevant here -- lawyer conduct in direct contempt of court -- involves misbehavior in or near the presence of the court that obstructs justice and that often (but, in Ohio, not always) is disruptive of the proceedings. (Indirect contempt by lawyers who, out of the presence of the court, disobey court orders or rulings is discussed in section 3.1:500.) For a detailed analysis of the distinctions between direct/indirect and direct/summary contempt, see In re Contemnor Caron, 110 Ohio Misc.2d 58, 89-97, 744 N.E.2d 787, 809-15 (C.P. Franklin 2000).
An interesting decision involving direct civil contempt in a criminal case is State v. Doe, 101 Ohio St.3d 170, 2004 Ohio 705, 803 N.E.2d 777. In Doe, the lawyer was found in contempt for refusing to answer questions before a grand jury. The issue of direct or indirect contempt was answered in this case by statute -- such a refusal before the grand jury is treated as if the witness had refused to answer in open court. ORC 2939.15. The contempt aspect of the Doe case is examined in detail in section 3.1:500.
At a minimum, a direct contempt summarily punishable must obstruct justice (see ORC 2705.01); a number of cases go further and hold that a summary proceeding, which does not provide the basic procedural due process protections, can be justified only when the conduct poses an immediate threat to or disruption of the administration of justice by the court. Thus, on the one hand, there are Ohio cases in which no immediate disruption of the proceedings is apparent but the summary contempt provisions of ORC 2705.01 were nevertheless deemed applicable. On the other, some Ohio cases have held that ORC 2705.01 can be invoked only when there is an imminent threat to or disruption of the administration of justice in the proceedings. In any event, we have come a long way from the circumstances presented in Anonymous, 73 Eng. Rep. 416 (1631), where the prisoner
"threw a brickbat at the said Judge, which nearly missed; and for this an indictment was immediately drawn by Noy against the prisoner, and his right hand cut off and fixed to the gibbet, upon which he was himself immediately hanged in the presence of the Court."
(Quoted in In re Contemnor Caron, 110 Ohio Misc.2d at 107, 744 N.E.2d at 822.) As the Caron court remarked: "Some sanctions for direct contempt are more summary than others." Id.
Direct contempt - The case law: As noted in section 3.1:500 at "Out-of-court contempt - Probate matters," the Ohio Supreme Court has held that the summary procedures of ORC 2705.01 may be used to deal with lawyer contempt that the Court found to be direct and an obstruction of justice, even when the conduct did not occur in the presence of the court and did not pose a threat of immediate disruption of the proceedings. See In re Estate of Wright, 165 Ohio St. 15, 133 N.E.2d 350 (1956) (nondisclosure of material fact by estate administrator constituted fraud on court causing court to enter orders it otherwise probably would not have entered; in such circumstances "there is such an obstruction of justice as to constitute direct contempt," id. at 25, 133 N.E.2d at 357, summarily punishable under ORC 2705.01. Syllabus three). The Court in Wright expressly stated that "a direct contempt of court is not confined to a disorderly or obstreperous act in the presence of the court itself." Id. Another lawyer contempt case in which the Supreme Court approved the use of ORC 2705.01, in circumstances significantly closer to the disruption threshold, is State ex rel. Seventh Urban, Inc. v. McFaul, 5 Ohio St.3d 120, 449 N.E.2d 445 (1983). Seventh Urban involved an in-courtroom assault by a lawyer on the opposing party's president in the presence of court reporters, a bailiff, and an assistant prosecutor, shortly before a court of appeals hearing was scheduled to begin. As a result, the proceeding was delayed for approximately ten minutes. Although (as in Wright) a full contempt hearing was later held (with the court of appeals finding the lawyer in direct criminal contempt), on appeal the Supreme Court rejected the lawyer's argument that his conduct did not obstruct justice and left little doubt that the summary procedures of ORC 2705.01 could have been used. First, citing Wright, the Court noted:
In order to constitute direct contempt, an act need not be in the immediate presence of the court, if it tends to obstruct justice or interfere with the actions of the court in the courtroom itself.
Id. at 122, 449 N.E.2d at 448. Second, given the place, time, and witnesses, the conduct was "an open threat to the orderly procedure of the court," and "[c]onsequently, Schulman's assault of Willis obstructed the administration of justice." Id. at 123, 449 N.E.2d at 448. Finally:
Striking someone who is in a courtroom on court business, the act occurring in the presence of the court's bailiff, marshal, constable or court reporter, is a direct contempt in the constructive presence of the court and may be punished as such.
Id. (emphasis added). The Court gave short shrift to appellant's second argument -- that the evidence did not support a finding that he intended to obstruct justice. Reasoning that since a person is presumed to intend the natural and reasonable consequences of his acts, the Court concluded that the "natural, reasonable and probable consequences of Schulman's voluntary act of striking Willis was the obstruction of justice." Id.
The third Supreme Court case relevant here is State v. Wilson, 30 Ohio St.2d 312, 285 N.E.2d 38 (1972), which affirmed a finding of summary contempt based on a lawyer's innumerable interruptions and refusals to obey the trial court's orders to "sit down" during his representation of two defendants in a capital murder case. While both the majority and the dissent complained of the sparseness of the record, the Court nevertheless concluded:
The record here does show, however, that appellant unnecessarily repeated objections, requests for examination and requests for the maintenance of the record (especially when it was obvious that no interruption or silencing of the reporter occurred or was ordered) and a constant disregard of the court's order to sit down, all of which amounted to disrespect for the court, to disruption of quiet and order, and to actual interruption of the court in the conduct of its business.
Id. at 314, 285 N.E.2d at 40 (emphasis added).
Many court of appeals cases can be cited for the proposition that a finding of direct contempt for obstructing justice ipso facto brings the summary punishment provisions of ORC 2705.01 into play. (The three cases cited are ones in which the contemnor was a lawyer.) E.g., In re Contempt of Morris, 110 App.3d 475, 674 N.E.2d 761 (Cuyahoga 1996); Fed. Land Bank v. Walton, 99 Ohio App.3d 729, 651 N.E.2d 1048 (Wyandot 1995); see City of Cleveland v. Heben, 74 Ohio App.3d 568, 599 N.E.2d 766 (Cuyahoga 1991) (reiterating the imminent-threat-to-administration-of-justice standard, but ultimately not applying it).
Despite the Supreme Court's holding in In re Wright, however, there is a substantial body of post-Wright Ohio case law taking the position that a direct contempt justifying use of the ORC 2705.01 summary procedures must be both conduct in the actual or constructive presence of the court and constitute an imminent threat to the administration of justice. The most detailed exposition of this approach in Ohio is that stated in In re Contemnor Caron, 110 Ohio Misc.2d 58, 744 N.E.2d 787 (C.P. Franklin 2000). As the Caron court put it:
A prevalent misconception exists yet today that direct contempt is synonymous with summary (i.e., without due process) contempt; or to state it differently, that every direct contempt justifies a summary sanction; or to again state it differently, that where the contumacious act is committed "within the presence of the court," it need not constitute an "imminent threat to the administration of justice" to justify a summary sanction. Assuming a contumacious act qualifies as a direct contempt, however, this is simply a precursor to one of the essential issues of present-day contempt law in America -- whether the circumstances of the direct contempt include both essential elements of summary contempt: (a) the "judge's personal knowledge" and (b) the "imminent threat to the administration of justice." . . .
The dual essential elements of summary contempt [citing Ex parte Terry, 128 U.S. 289 (1888); Cooke v. United States, 267 U.S. 517 (1925); In re Oliver, 333 U.S. 257 (1948)] are:
1. A contumacious act committed in open court in the judge's presence and immediate view that results in the judge's personal knowledge and makes further evidence unnecessary for a summary finding of contempt . . . and
2. The contumacious act constitutes an imminent threat to the administration of justice that may result in demoralization of the court's authority unless the court imposes a summary contempt sanction . . . .
110 Ohio Misc.2d at 89-90, 744 N.E.2d at 809 (emphasis by the court; bracketed material added). Another, more recent, case also exhaustively canvassing this issue and reaching the same conclusion as that in Caron is In re LoDico, 2005 Ohio 172, 2005 Ohio App. LEXIS 165 (Stark) (relying extensively on the Caron analysis). See also William F. Chinnock & Mark P. Painter, The Law of Contempt of Court in Ohio, 34 Tol. L. Rev. 309, 321 (2003) (Judge Painter sits on Ohio’s First District Court of Appeals; Judge Chinnock is the author of the Caron decision).
Ohio lawyer cases following this imminent threat approach (all of which cited here except Heben reversed a summary finding of contempt) include LoDico supra (reversing direct summary contempt finding based on lawyer's response to court's question whether lawyer was officially withdrawing: "I'm saying that I can't be effective in representing Mr. Cameron. So however the Court wants to view that, the Court can view that." Id. at ¶¶ 20-22.); State v. Schiewe, 110 Ohio App.3d 170, 673 N.E.2d 941 (Wood 1996); In re Contempt of Rossman, 82 Ohio App.3d 730, 613 N.E.2d 241 (Cuyahoga 1992); In re Davis, 77 Ohio App.3d 257, 602 N.E.2d 270 (Montgomery 1991); State v. Milano, No. 44610, 1983 Ohio App. LEXIS 13733 (Cuyahoga Aug. 4, 1983). See Catholic Soc. Servs. v. Howard, 106 Ohio App.3d 615, 666 N.E.2d 658 (Cuyahoga 1995) (invoking both obstruction and imminent threat standards); see also City of Cleveland v. Heben, 74 Ohio App.3d 568, 575, 599 N.E.2d 766, 770 (Cuyahoga 1991) (Blanche Krupansky, C.J., dissenting) ("while I agree defendant's conduct may have been ill-mannered, his conduct posed no 'actual or imminent' threat to the administration of justice," id. at 575, 599 N.E.2d at 770). The Heben and Rossman cases provide an interesting comparison -- the panel in both cases was comprised of the same three judges; in Heben, summary contempt was affirmed, while in Rossman it was reversed. Judge Krupansky dissented in both cases and in Rossman remarked as follows:
I am amazed that the same majority in Heben as in the case sub judice could affirm the contempt sanction against Heben for making "derogatory statements * * * to the court after it had Heben brought back into the courtroom," with no mention that Heben obstructed the administration of justice, Heben, supra, 74 Ohio App.3d at 573, 599 N.E.2d at 769; yet in the case sub judice the same majority finds Rossman's behavior [attempting to pursue line of questioning in defiance of trial court's order, resulting in delay of voir dire] not to be contemptuous, completely ignoring the statutory law and the case law based on stare decisis. I am truly astounded.
82 Ohio App.3d at 739, 613 N.E.2d at 247. There are also nonlawyer cases holding that an imminent threat is necessary before summary contempt procedures can be utilized. E.g., State v. Newman, Nos. 97 CA2507, 2525, 1998 Ohio App. LEXIS 1431 (Scioto Apr. 3, 1998); State v. Conliff, 61 Ohio App.2d 185, 401 N.E.2d 469 (Franklin 1978) ("Displays of ill-mannered conduct are not summarily punishable under the law of direct contempt unless they pose an imminent threat to the administration of justice." Id. at 185, 401 N.E.2d at 470 (syllabus)).
Summary punishment of lawyers for direct contempt that obstructs justice and is explicitly or implicitly immediately disruptive of the proceedings has been upheld in a number of cases. E.g., Bank One Trust Co. v. Scherer, 176 Ohio App.3d 694, 2008 Ohio 2952, 893 N.E.2d 542 (Franklin) (summary conviction of direct criminal contempt affirmed, with exception of penalty, which was found excessive; imminent threat standard applied and found satisfied by lawyer’s refusal to answer court’s questions about conflict of interest issue and other obstructive tactics during hearing; dissent argued that lawyer’s “obstinacy did not pose an imminent threat to the administration of justice. Because the purpose of the hearing was not related to the conflict of interest, and the hearing on scheduled matters had already concluded, the progress of the hearing was not in jeopardy,” id. at para 54; this seems to us an overly rigid view of what constitutes a “hearing”); Scherer v. Scherer, 72 Ohio App.3d 211, 594 N.E.2d 150 (Logan 1991) (conduct obstructed administration of justice in hearing before referee, forcing referee to terminate proceeding); Graham v. Mem'l Hosp., No. 14-88-6, 1990 Ohio App. LEXIS 418 (Union Feb. 7, 1990) (disruptive behavior throughout trial, ultimately resulting in mistrial); In re McGinty, 30 Ohio App.3d 219, 507 N.E.2d 441 (Cuyahoga 1986) (prosecutor's disruption of court's ordered sequence for interviewing witness by intruding on defense counsel's private interrogation, which conduct was witnessed and/or heard by judge, obstructed administration of justice). See In re Gonzalez, 70 Ohio App.3d 752, 591 N.E.2d 1371 (Cuyahoga 1990), where the court of appeals, in affirming a summary contempt order, noted that the lawyer's "outrageous conduct was obstructing justice in the direct presence of the court." Id. at 757, 591 N.E.2d at 1373. The only example given of the lawyer's "outrageous conduct" was his continuing to ask questions, contrary to the trial court's order, about the victim's sexual activity in a rape-of-minor case. The appellate court did note, however, that "[t]he case already had one mistrial and the judge was attempting to protect this trial." Id. Compare City of Cleveland v. Heben, 74 Ohio App.3d 568, 599 N.E.2d 766 (Cuyahoga 1991) (while espousing "imminent threat to the administration of justice" requisite, appellate court affirmed summary finding of contempt based on counsel's derogatory remark ("I have no respect for this Court") that, in the reviewing court's words, "tended to embarrass the court's performance of its functions in the administration of justice," id. at 574, 599 N.E.2d at 769; there was a persuasive dissent).
While the purported invalidity of a court order is generally not a defense to a charge of contempt for defying the order (such issues should be raised by motion or on appeal), at least two Ohio court of appeals cases have held that in the criminal context, where the defense lawyer was subject to the potentially inconsistent obligations of (a) obeying an order in open court to proceed to trial (thereby running the risk of violating former OH DR 6-101(A)(2) and (A)(3)) and (b) protecting her client's constitutional right to effective assistance of counsel, the fact that the order was contrary to law or an abuse of discretion was held to be a defense to the contempt citation. In re Sherlock, 37 Ohio App.3d 204, 525 N.E.2d 512 (Montgomery 1987) (appellate court concluded that if conduct properly held contemptuous, trial court was authorized to impose summary punishment for counsel's refusal to proceed with trial, but contempt finding held improper where refusal based on concern that client would receive ineffective assistance of counsel and that lawyer would be in violation of OHCPR if she proceeded without being prepared); State v. Gasen, 48 Ohio App.2d 191, 356 N.E.2d 505 (Hamilton 1976) (same). Compare State v. Christon, 68 Ohio App.3d 471, 589 N.E.2d 53 (Montgomery 1990) (distinguishing Sherlock because in Christon "appellants were not adequately prepared due solely to their own inaction." Id. at 477, 589 N.E.2d at 57). The same concerns arise on the other side of the aisle, when a prosecutor is confronted with an order that places him in the "untenable position" of either disobeying the court's order or violating his professional responsibility to his client, the state. See State v. Schiewe, 110 Ohio App.3d 170, 177, 673 N.E.2d 941, 945 (Wood 1996) (contempt held improper). Different, but equally compelling, considerations may point to the same result where the lawyer is placed in the position of either obeying a court order to testify at trial or protecting his criminal-defendant client's attorney-client privilege. See State v. McDermott, 72 Ohio St.3d 570, 651 N.E.2d 985 (1995) (court of appeals' reversal of contempt order, imposed for refusal to testify in defiance of trial court order, affirmed; attorney properly refused to disclose confidential client communications as to which there had been no waiver). McDermott is also discussed in section 1.6:520.
Some courts clearly overreach in invoking the summary procedures of ORC 2705.01. Thus, in Catholic Social Services v. Howard, 106 Ohio App.3d 615, 666 N.E.2d 658 (Cuyahoga 1995), the trial court summarily held appellant in contempt for appearing in a hallway near the courtroom, after the court had ordered that appellant not appear before it or be present near the courtroom. The appellate court reversed, finding that there was no evidence that appellant's mere presence in the vicinity of the courtroom obstructed justice or constituted an imminent threat to the administration of justice. (The court of appeals further noted that the trial court's order in effect precluded appellant from practicing in the trial judge's courtroom, and, as such, conflicts with the Supreme Court's exclusive authority to govern the practice of law.)
The ultimate in overreaching may well have occurred in Office of Disciplinary Counsel v. Karto, 94 Ohio St.3d 109, 760 N.E.2d 412 (2002), where the respondent judge, who stated he originally intended only to admonish the alleged condemnor, found her guilty of "civil" contempt for supposedly threatening the judge by making a "popping" noise while pointing her finger at him. "According to the stipulated facts, this proceeding took place without the filing of a complaint or a case number, and without a journal entry memorializing the proceedings. . . . [Respondent] did not advise Smith that she had a right to be represented by counsel . . . ." Id. at 111, 760 N.E.2d at 415. Not surprisingly, the judge was sanctioned for misuse of the contempt power in this (and one other) instance.
Finally, there is a substantial body of case law (both lawyer and nonlawyer) holding that in cases of direct, summary contempt, the "order must contain a clear and complete recital of the facts upon which the finding is based to allow an appellate court to judge its lawfulness." E.g., State v. Sindell, CA No. 2745, 1978 Ohio App. LEXIS 8236, at *3 (Lorain Dec. 13, 1978) (lawyer case; contempt citation reversed and remanded for want of such order); State v. Butler, No. 34574, 1976 Ohio App. LEXIS 7467 (Cuyahoga Feb. 26, 1976) (same).
- Primary Ohio References: Ohio Rule 3.5(b)
- Background References: None
- Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 7.133
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 § 7.133 (1996).
Ohio Rule 3.5(b), which in general mirrors former OH DR 7-108(G), places a duty on the lawyer promptly to report misconduct involving jurors to the tribunal hearing the action. Division (b) requires the lawyer to reveal "improper conduct by a juror or prospective juror, or by another toward a juror, prospective juror, or family member of a juror or prospective juror, of which the lawyer has knowledge." Two aspects of the rule deserve special mention.
First, the rule does not restrict the reporting duty to misconduct that violates Rule 3.5, but speaks more generally to any "improper conduct." One Ohio appellate court under the former OHCPR held that a prosecutor's failure to disclose a prior relationship with a juror violated the predecessor disciplinary rule, OH DR 7-108(G). State v. Mathias, No. 91 CA31, 1994 Ohio App. LEXIS 1458 (Gallia Mar. 31, 1994).
Second, Rule 3.5(b) requires the lawyer to report misconduct by a juror or prospective juror, or misconduct toward a juror, prospective juror or the family of same by "another." It is unclear how broadly "another" should be interpreted in this context. If it includes improper conduct by a client, it may constitute a mandatory disclosure provision overriding the confidentiality provisions of Rule 1.6. It should be noted, however, that the mandatory disclosure provision in Ohio Rule 1.6(c) speaks only in terms of disclosure necessary to comply with Rule 3.3 or 4.1. Under the terms of those Rules, the client misconduct would have to be either fraudulent or criminal (Rule 3.3(b), or illegal (Rule 4.1(b)).
A case in which the duty to report under former OH DR 7-108(G) was raised is Bell v. Mt. Sinai Med. Ctr., 95 Ohio App.3d 590, 643 N.E.2d 151 (Cuyahoga 1994). In Bell, plaintiff-appellant's counsel argued on appeal that the lower court erred in denying his motion for new trial because a senior partner at defense counsel's firm violated this and other provisions of the OHCPR when he failed to inform the court and plaintiff's counsel that a juror had informed a local surgeon in a telephone call that the jury was going to find in favor of one of the defendant doctors. The senior partner had been informed of the telephone call by the local surgeon, who had been called by the juror to seek guidance on issues in the case. The senior partner promptly advised the trial court that the telephone call occurred, but kept the jury-verdict information to himself. Without any real analysis of the issue, the appellate court merely noted that the trial court has wide discretion on ruling on a motion for new trial, which discretion was not abused by its conclusion that there was no attorney misconduct.