Crawford Cty. Bar Assn. v. Nicholson - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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Crawford County Bar Association v. Nicholson.
[Cite as Crawford Cty. Bar Assn. v. Nicholson (1993) Ohio
St.3d .]
Attorneys at law -- Misconduct -- Suspended six-month
suspension -- Undignified or discourteous conduct
degrading to a tribunal -- Conduct adversely reflecting on
fitness to practice law.
(No. 93-391 - - Submitted April 6, 1993 - - Decided June
30, 1993.)
On Certified Report by the Board of Commissioners on
Grievances and Discipline of the Supreme Court, No. 92-41.
By complaint filed June 22, 1992, relator, Crawford County
Bar Association, charged respondent, Thomas G. Nicholson of
Bucyrus, Ohio, Attorney Registration No. 0039741, with
violations of the Code of Professional Responsibility: inter
alia, DR 7-106(C)(6) (undignified or discourteous conduct which
is degrading to a tribunal), and 1-102(A)(6) (conduct adversely
reflecting on his fitness to practice law).
By answer filed July 7, 1992, respondent denied, in part,
and admitted, in part, the allegations of the complaint. He
asserted that he had not engaged in conduct that was
undignified, discourteous or degrading to a tribunal; that he
had not engaged in sexual innuendo or rudeness to court
officials; that his letter to court officials regarding the
erroneous case number 269 was a joke and was not intended to be
offensive; and that his published letters to the editor
relative to certain judges and a bankruptcy trustee were
expressions of opinion, protected by his right to free speech
guaranteed by the First Amendment to the United States
Constitution; but he admitted he had a misdemeanor assault
conviction.
Testimony and exhibits were presented to a panel of the
Board of Commissioners on Grievances and Discipline of the
Supreme Court on December 2, 1992. The panel found that
respondent had engaged in inappropriate conduct. He admitted
that in the case of United States v. $4,391.08, N.D. Ohio No.
5: 90CV2228, he had inserted a vulgarity in the margin of an
interrogatory. He claimed the comment had been inserted out of

his exasperation at oppresive, irrelevant interrogatories and
that he failed to erase it, prior to submission, through
inadvertence.
During final argument in an intense criminal trial, he
used a rude gesture of the middle finger, which he claimed was
in response to a similar gesture from the judge. Respondent's
gesture was observed by at least one of the jurors, who was
offended by it.
While discussing a pending case in a telephone
conversation with a female court official, he made a gratuitous
comment that he was sitting in his office with his girlfriend
on his lap, caressing her thigh. This comment was offensive to
the court employee.
He wrote to female employees in Judge Henson's court in
response to a notice of assignment that listed a case as No.
269 (rather than the correct No. 500). The letter stated: "I
appreciate your office appointing me as appellate counsel for
Herb Taylor, however you have the wrong case # on the order. I
thought Herb's case # was 500! Of course if you foxy females
who work for Judge Henson are trying to be coy, go ahead and
throw this letter away as I would be glad to do case # two
sixty nine with you! If you know what I mean." This was taken
as sexual innuendoes, but respondent contends it was a joke.
He wrote published letters to the editor criticizing Judge
Bender, because of the judge's refusal to appoint particular
counsel requested by indigent defendants; Judge Christ, because
of his refusal to set bail as required by law; and a bankruptcy
trustee, because of perceived defects in the bankruptcy system
and procedures.
The panel found that respondent used inappropriate and
disrespectful language on the margin on an interrogatory in a
federal case, that respondent admitted using a finger gesture
to a judge, and that his claim that the gesture was in response
to a similar gesture from the judge was unsupported. The panel
found that this conduct violated DR 7-106(C)(6). The panel
also found that respondent's conduct relative to the assault
conviction and sexual innuendo violated DR 1-102(A)(6) because
his actions were inappropriate and unprofessional.
The panel found that respondent violated DR 7-106(C)(6)
with regard to the letter concerning Judge Christ, citing EC
8-6 and observing that a lawyer as a citizen has a right to
criticize officials but must avoid intemperate statements that
tend to lessen public confidence in our legal system. As to
the letter concerning Judge Bender, the panel found only that
respondent had "violated the canons," and cited only EC 8-6,
relying on its characterization of the letter as
"intemperate." In reaching this conclusion the panel did not
state that respondent had violated any Disciplinary Rule. As
to the letter concerning the bankruptcy trustee, the panel
found "no violations of canons," again without referring to the
Disciplinary Rules.
The panel stated that the constitutional question raised
by the respondent was beyond its "authority to determine the
generic constitutionality of the canon in relationship to the
First Amendment." The panel quoted with approval In re Sawyer
(1959), 360 U.S. 622, 646-647, 79 S. Ct. 1376, 1388, 3 L. Ed.2d
1473, 1489: "Obedience to ethical precepts may require

abstention from what in other circumstances might be
constitutionally protected speech." (Stewart, J., concurring in
result.)
The panel's recommended sanction was that respondent
receive a public reprimand and be ordered to comply with
recommendations from a psychologist, and to comply with
reasonable directions of a monitor appointed by relator during
a probationary term of one year.
The board ratified the findings of fact and recommendation
of the panel and further recommended that the costs of these
proceedings be taxed to respondent.

John L. Spiegel and John Andrew Motter, for relator.
Thomas G. Nicholson, pro se.

Per Curiam. The board found that respondent violated DR
7-106(C)(6) on the basis of a letter to the editor. However,
DR 7-106(C)(6) governs only conduct by a lawyer "appearing in
his professional capacity before a tribunal." We find no
violation of DR 7-106(C)(6) as to any of respondent's letters
to the editor. We concur in the rest of the board's findings.
However, we modify the recommended sanctions. Thomas G.
Nicholson is hereby suspended from the practice of law in Ohio
for six months, with the six-month suspension suspended. His
conduct is to be monitored by the Crawford County Bar
Association for a probationary period of one year. Costs taxed
to respondent.

Judgment accordingly.
Moyer, C.J., A.W. Sweeney, Douglas, Wright, Resnick and
F.E. Sweeney, JJ., concur.
Pfeifer, J., not participating.