Disciplinary Counsel v. Grimes - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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Office of Disciplinary Counsel v. Grimes.
[Cite as Disciplinary Counsel v. Grimes (1993), Ohio
St.3d .]
Attorneys at law -- Misconduct -- Public reprimand -- Engaging
in conduct adversely reflecting on one's fitness to
practice law -- Engaging in undignified or discourteous
conduct degrading to a tribunal.
(No. 93-455 - - Submitted April 6, 1993, -- Decided July
7, 1993.)
On Certified Report by the Board of Commissioners on
Grievances and Discipline of the Supreme Court, No. 92-44.
In a complaint filed August 17, 1992, relator, Office of
Disciplinary Counsel, charged respondent, Richard E. Grimes of
Norwalk, Ohio, Attorney Registration No. 0006381, with two
counts of misconduct including, inter alia, violations of DR
1-102(A)(6) (engaging in conduct adversely reflecting on one's
fitness to practice law) and 7-106(C)(6) (engaging in
undignified or discourteous conduct degrading to a tribunal).
Respondent admitted most of the factual allegations of the
complaint, but denied that his actions constituted misconduct.
The parties waived hearing in this matter, and a panel of the
Board of Commissioners on Grievances and Discipline of the
Supreme Court considered the case upon the parties' agreed
stipulation of facts and recommendation that respondent be
publicly reprimanded.
The stipulation shows that respondent was admitted to the
practice of law in 1977 and has been associated with the law
firm of Miller & Fegen Co., L.P.A., since 1978. One of the
partners of that firm, Michael R. Fegen, is the part-time Huron
County Prosecuting Attorney, and respondent has served as a
part-time assistant prosecutor since 1985. In that capacity,
he was assigned to prosecute the Norwalk City Law Director, who
was indicted on July 15, 1991. The parties stipulated that the
case was "controversial, received substantial publicity, and
was a source of disagreement among members of the local bench
and bar."
As to Count I of the complaint, the stipulation provides
that the prosecutor's office filed charges in May 1991 against

a nineteen-year-old individual for contributing to the
delinquency of a minor. No prosecutors were available on the
scheduled hearing date and the juvenile court judge, Thomas E.
Heydinger, refused a request for continuance, requiring the
prosecutor's office to file a motion for dismissal on July 11,
1991.
On or about July 19, 1991, a reporter for The Lorain
Journal contacted respondent regarding the above case and,
during the course of their conversation, respondent referred to
Judge Heydinger as a "sonofabitch." The reporter's published
article quoted respondent as stating: "Your source is that
sonofabitch Heydinger. Why don't you get your information from
him?" Respondent has since made a public apology to the judge.
As to Count II, the stipulation provides that Fegen, in
his private practice, filed a case against the Ohio Bureau of
Motor Vehicles ("OBMV") in Norwalk Municipal Court. The
municipal court judge, John S. Ridge, had previously expressed
his concern that it was a conflict of interest for Fegen to
represent private clients in such cases. On the day preceding
the hearing, respondent arranged for another attorney, not
associated with his office, to handle the case. This attorney,
although present on the date of hearing, had not filed a notice
of appearance, and Judge Ridge insisted that someone from
Fegen's office appear. Fegen was out of the county on that
particular date, so respondent complied with the judge's
request. The indicted city law director was also present at
the hearing, representing OBMV, and respondent believed that
the law director's indictment was one of the underlying reasons
for being summoned to Judge Ridge's courtroom.
Judge Ridge began the hearing by questioning respondent as
to Fegen's whereabouts. Respondent expressed confusion about
being summoned to court when arrangements had already been made
for another attorney to handle the case and referred to the
judge's inquiry as a "silly game" and a "charade." Judge Ridge
confirmed with the other attorney that he had been contacted to
handle the case, and then continued to question respondent as
to Fegen's apparent conflict:
"THE COURT: Okay, and Mr. Fegen is the
Huron County prosecutor, and was at the time you filed
this action; is that correct?
"MR. GRIMES: I guess you're, you have an
inept ability for the obvious, Your Honor.
"THE COURT: Mr. Grimes, do you and your
Prosecutor's office understand the code of ethics, professional
ethics?
"MR. GRIMES: I find it fascinating that
we're questioning that, given the fact that that man sitting
right there is under indictment, representing the State of Ohio.
"THE COURT: Mr. Grimes, speak to me,
not Mr. Weinman.
"MR. GRIMES: I made an observation. I
made an observation, I find it incredibly fascinating.
"THE COURT: Mr. Grimes, first off,
first off we're not addressing any other case than this one.
"MR. GRIMES: But you're the judge
sitting on both cases, Your Honor."
The exchange between the court and respondent continued

with respondent eventually conceding that it was inappropriate
for his law office to file actions against OBMV.
The parties further stipulated that any inappropriate
statements made by respondent were the "result of emotional
stresses created by a set of unusual circumstances that are
unlikely to recur." Correspondence from Fegen, attached to the
stipulation, corroborated the stress respondent was under from
prosecuting the city law director, and further indicated that
respondent had since returned to "his old affable self." In
addition, Huron County Common Pleas Judge Phillip M. White, Jr.
wrote that respondent was "a responsible, conscientious person
with the highest moral integrity," and was someone who "has
always been courteous and respectful in his behavior before me
individually and as Common Pleas Judge." It was also
stipulated that respondent has no prior disciplinary record.
As to Count I, the panel found that respondent's remark to
the newspaper reporter violated DR 1-102(A)((6) and, as to
Count II, found that respondent's conduct before Judge Ridge
violated DR 7-106(C)(6).1 In considering the appropriate
sanction, the panel noted two other cases involving violations
of DR 7-106(C)(6), in which the respondents were given one-year
suspensions. See Bar Assn. of Greater Cleveland v. Carlin
(1981), 67 Ohio St.2d 311, 21 O.O.3d 195, 423 N.E.2d 477; Bar
Assn. of Greater Cleveland v. Milano (1984), 9 Ohio St.3d 86, 9
OBR 315, 459 N.E.2d 496. The panel distinguished those cases
as involving the repeated use of obscenities and direct,
personal attacks on a judge. Noting that the instant case
involved outside pressures under peculiar circumstances which
were not likely to be repeated, the panel recommended that
respondent be given a suspended six-month suspension. The
board adopted the findings and conclusions of the panel;
however, noting the degree of misconduct committed and the role
played by the municipal judge, recommended that respondent be
publicly reprimanded.

J. Warren Bettis, Disciplinary Counsel, and Dianna L.
Chesley, Assistant Disciplinary Counsel, for relator.
Mark H. Aultman, for respondent.

Per Curiam. We find that respondent committed the
misconduct found by the board and concur with its
recommendation. Respondent is hereby publicly reprimanded.
Costs taxed to respondent.
Judgment accordingly.

Moyer, C.J., A.W. Sweeney, Douglas, Wright, Resnick and
F.E. Sweeney, JJ., concur.
Pfeifer, J., dissents.

FOOTNOTE
1 This rules was inadvertently denominated DR 7-106(B)(6) by
the panel and the board.
Pfeifer, J., dissenting. I would dismiss the complaint
against the respondent. The conduct at issue was not only out
of character but was also inconsequential.
Regarding Count I of the complaint, which of us who have
ever practiced law has not muttered a choice epithet about our

favorite judge? More important, which of us who are judges has
not done something to earn an occasional raspberry? It is
obvious in this case that the respondent did not expect his
mild outburst to be quoted in the newspaper. Respondent
self-administered the appropriate disciplinary measure by
publicly apologizing to Judge Heydinger.
Speaking of judges earning epithets, Judge Ridge baited
the respondent into making the comments that were the basis of
Count II of the complaint. Judge Ridge's actions and comments
were outrageous and precipitated respondent's barbed response.
If anyone were to be reprimanded based upon the facts in Count
II, it ought to have been Judge Ridge.
Finally, I am always concerned to see a lawyer reprimanded
for his speech. Our legal system relies upon vigorous
advocacy, which occasionally leads to spirited interplay
between lawyers and judges. We ought not rule in a way that
may affect that friction.