[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Brockler, Slip Opinion No. 2016-Ohio-657.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in an
     advance sheet of the Ohio Official Reports. Readers are requested to
     promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
     South Front Street, Columbus, Ohio 43215, of any typographical or other
     formal errors in the opinion, in order that corrections may be made before
     the opinion is published.



                         SLIP OPINION NO. 2016-OHIO-657
                      DISCIPLINARY COUNSEL v. BROCKLER.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
      may be cited as Disciplinary Counsel v. Brockler, Slip Opinion No.
                                    2016-Ohio-657.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct—One-
        year suspension, stayed on conditions.
     (No. 2015-0280—Submitted May 6, 2015—Decided February 25, 2015.)
   ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
                                 Court, No. 2014-030.
                             _______________________
        Per Curiam.
        {¶ 1} Respondent, Aaron James Brockler of Lakewood, Ohio, Attorney
Registration No. 0078205, was admitted to the practice of law in Ohio in 2004. In
an April 7, 2014 complaint, relator, disciplinary counsel, charged Brockler with
engaging in professional misconduct while he served as the assistant Cuyahoga
County prosecutor assigned to a murder case. Specifically, relator alleged that
                            SUPREME COURT OF OHIO




while investigating the shooting death of Kenneth “Blue” Adams, Brockler created
a fictitious Facebook account and used it to contact the alibi witnesses of Damon
Dunn, who had been indicted for the murder.
        {¶ 2} The parties entered into stipulations of fact and submitted 15
stipulated exhibits. After a two-day hearing, a panel of the Board of Professional
Conduct issued a report finding that Brockler’s use of the fictitious Facebook
account to contact the alibi witnesses involved dishonesty, fraud, deceit, or
misrepresentation, and that it prejudiced the administration of justice.         It
recommended, however, that we dismiss an alleged violation arising from certain
statements that Brockler made to the media.
        {¶ 3} Citing substantial mitigating evidence and finding that Brockler’s
misconduct was an isolated incident in an otherwise notable legal career, the panel
recommended that he be suspended for one year, fully stayed on conditions. The
board adopted the panel’s report in its entirety, and neither party has filed
objections. We adopt the board’s findings of fact and conclusions of law and
suspend Brockler from the practice of law in Ohio for one year, fully stayed on
conditions.
                                   Misconduct
        {¶ 4} Before he was indicted, Dunn denied any involvement in Adams’s
death and told Cleveland police that at the time of the murder, he was with his
girlfriend, Sarah Mossor, and her friend Marquita Lewis. Brockler did not believe
Dunn’s alibi was true, but Mossor and Lewis refused to talk with him on numerous
occasions when he identified himself as the assistant prosecutor assigned to the
case.
        {¶ 5} As part of his investigation, Brockler listened to recordings of
telephone calls that Dunn had made from the Cuyahoga County Jail. On the
morning of December 14, 2012, he listened to a recording of a heated conversation
in which Dunn and Mossor argued over Dunn’s fear that Mossor would not be a




                                        2
                                January Term, 2016




reliable witness and Mossor’s belief that Dunn had not been faithful to her. Mossor
suspected that Dunn had had a romantic relationship with a woman named “Taisha”
and indicated that if her suspicion was true, she would end her relationship with
Dunn. Believing that Mossor’s relationship with Dunn was near a breaking point,
Brockler saw an opportunity to exploit her feelings of distrust and get her to recant
her support for Dunn.
       {¶ 6} Recalling a Facebook ruse he had used in a prior case, Brockler
planned to create a fictitious Facebook identity to contact Mossor. He attempted to
obtain assistance from several Cleveland police detectives and the chief
investigator in the prosecutor’s office, but they were not available. Believing that
time was of the essence, Brockler decided to proceed with the Facebook ruse on his
own approximately one hour after he heard the recording of Mossor and Dunn’s
conversation. He created a Facebook account using the pseudonym “Taisha Little,”
a photograph of an African-American female that he downloaded from the Internet,
and information that he gleaned from Dunn’s jailhouse telephone calls. He also
added pictures, group affiliations, and “friends” he selected based on Dunn’s
telephone calls and Facebook page.
       {¶ 7} Posing as Little, Brockler simultaneously contacted Mossor and
Lewis in separate Facebook chats. He falsely represented that Little had been
involved with Dunn, that she had an 18-month-old child with him, and that she
needed him to be released from jail so that he could provide child support. He also
discussed Dunn’s alibi as though it were false in an attempt to get Mossor and Lewis
to admit that they were lying for Dunn (or would lie for him in the future) and to
convince them to speak with the prosecutor.
       {¶ 8} After chatting for several hours, Brockler sensed that Mossor and
Lewis were suspicious, so he shut down the chat and deleted the fictitious account.
He testified that he printed copies of the chats and placed them in a file—with the
intent to provide copies to defense counsel—before he deleted the account, but




                                         3
                             SUPREME COURT OF OHIO




those copies were never found. He attended five pretrial conferences from January
through April 2013 but did not disclose the circumstances or content of his
conversations with Mossor or Lewis.
       {¶ 9} Brockler was scheduled to take an extended medical leave beginning
April 16, 2013, and assistant prosecutor Kevin Filiatraut was assigned to handle the
Dunn case in his absence. Brockler gave his file to Filiatraut, reviewed the case
with him, and attended a pretrial conference with him. Brockler also disclosed that
he might need to be a witness at trial because both Mossor and Lewis had told him
they would not support Dunn’s alibi, although they were afraid to say so in court.
Brockler did not disclose how he obtained that information.
       {¶ 10} On the second day of Brockler’s leave and less than one week before
Dunn’s trial, a police detective gave Filiatraut several documents, including a
transcript of Lewis’s chat with “Taisha Little” (obtained from Lewis) and Lewis’s
written statement about the chat. Filiatraut immediately made the documents
available to defense counsel and began to investigate Little.
       {¶ 11} Although Filiatraut quickly informed Brockler about this new
information, Brockler waited nearly three weeks to disclose that he was “Taisha
Little.” Upon learning of Brockler’s ruse, Filiatraut reported this information to his
superiors. The prosecutor’s office withdrew from the case and the court appointed
the attorney general to serve as a special prosecutor. Shortly after Brockler returned
from his medical leave in June 2013, his employment was terminated.
       {¶ 12} Soon thereafter, Brockler spoke with reporters from the Cleveland
Plain Dealer and a local television affiliate in response to Cuyahoga County
Prosecuting Attorney Timothy McGinty’s statements that Brockler was fired for
his unethical conduct in creating false evidence, lying to witnesses and another
prosecutor, and damaging the prosecution’s chances in a murder case in which an
innocent man was killed at work.




                                          4
                                 January Term, 2016




       {¶ 13} The subsequently published article and broadcasted interview
included statements by Brockler—which he does not dispute—to the effect that (1)
prosecutors have long engaged in ruses to obtain the truth, (2) his firing was an
overreaction because he only did what the police should have done, (3) he engaged
in an investigative ruse to uncover the truth and keep a murderer behind bars, (4)
the public was better off because of his actions, (5) if he had not taken these actions,
a murderer might be walking the streets, (6) he promised the victim’s mother that
he would not let a horrible killer walk out of the courthouse to kill someone else,
and (7) McGinty chose to follow the technical rules of ethics, while he chose to
protect the public.
       {¶ 14} Approximately one year after Brockler’s termination, Dunn was
convicted of aggravated murder, murder, felonious assault, and having weapons
while under disability. The parties stipulated in January 2015 that his conviction
was on appeal, but it has since been affirmed, see State v. Dunn, 8th Dist. Cuyahoga
No. CR-12-568849-A, 2015-Ohio-3138.
       {¶ 15} Brockler admitted that the Facebook ruse violated the plain language
of Prof.Cond.R. 8.4(c) (prohibiting a lawyer from engaging in conduct involving
dishonesty, fraud, deceit, or misrepresentation), but he urged the board to carve out
an exception for “prosecutorial investigation deception.”
       {¶ 16} Noting that a comment to Prof.Cond.R. 8.4 already recognizes an
exception for lawyers who supervise or advise nonlawyers about lawful covert
investigative activities, and that this court has found in two cases that lawyers in
private practice violated the analogous provisions of DR 1-102(A)(4) by personally
engaging in investigatory deceptions, the board refused to carve out a broader
exception to the rule. See Prof.Cond.R. 8.4, Comment 2A; Columbus Bar Assn. v.
King, 84 Ohio St.3d 174, 702 N.E.2d 862 (1998) (finding that two attorneys
engaged in dishonest conduct by conspiring for one of them to place a phone call
while posing as someone else in order to generate evidence in furtherance of a




                                           5
                             SUPREME COURT OF OHIO




client’s case); Cincinnati Bar Assn. v. Statzer, 101 Ohio St.3d 14, 2003-Ohio-6649,
800 N.E.2d 1117, ¶ 17 (finding that an attorney engaged in dishonesty, fraud,
deceit, or misrepresentation when she intimidated a deposition witness by creating
the false impression that she possessed compromising personal information that
could be offered as evidence).
       {¶ 17} Instead, the board found that Prof.Cond.R. 8.4(c) requires an
assistant prosecutor to refrain from dishonesty, fraud, deceit, or misrepresentation
when personally engaging in investigatory activity and that Brockler’s Facebook
ruse therefore violated the rule.
       {¶ 18} Brockler argued that his conduct did not violate Prof.Cond.R. 8.4(d)
(prohibiting a lawyer from engaging in conduct that is prejudicial to the
administration of justice) as charged in the complaint because it encouraged
witnesses to come forward and tell the truth. But the board found that his subterfuge
prejudiced the administration of justice because it had the potential to induce false
testimony, injected significant new issues into the case shortly before trial, and
materially delayed the resolution of the case by requiring further investigation and
the appointment of a special prosecutor.
       {¶ 19} Relator’s complaint also alleged that Brockler’s statements to the
media violated Prof.Cond.R. 3.6(a) (prohibiting a lawyer who has participated in
the investigation or litigation of a matter from making extrajudicial statements that
he knows or reasonably should know will be disseminated by means of public
communication and will have a substantial likelihood of materially prejudicing an
adjudicative proceeding in the matter). While the board did not condone Brockler’s
statements, it found that relator failed to carry his burden of proving not only that
the statements were made but that Brockler knew or reasonably should have known
that his statements would have a substantial likelihood of materially prejudicing
Dunn’s trial. Therefore, the board recommended that we dismiss the alleged
violation of Prof.Cond.R. 3.6(a).




                                           6
                                January Term, 2016




                                      Sanction
       {¶ 20} When imposing sanctions for attorney misconduct, we consider
relevant factors, including the ethical duties that the lawyer violated and the
sanctions imposed in similar cases. Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio
St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶ 16. In making a final determination,
we also weigh evidence of the aggravating and mitigating factors listed in Gov.Bar
R. V(13).
       {¶ 21} As an aggravating factor, the board found that Brockler’s deceptions
and misrepresentations in his contacts with Mossor and Lewis resulted in multiple
violations of Prof.Cond.R. 8.4(c) and (d), though it treated them as a single instance
of misconduct. See Gov.Bar R. V(13)(B)(4). The board also found that his
extrajudicial statements to the media, deflecting blame for his own misconduct to
the police department and the prosecutor’s office, undermined the public’s
confidence in the criminal-justice process. See Gov.Bar R. V(13)(A) (requiring the
board to consider all relevant factors in determining the appropriate sanction for a
lawyer’s misconduct).
       {¶ 22} In mitigation, the board found that Brockler did not have a prior
disciplinary record, made a full and free disclosure and cooperated in the
disciplinary process, submitted numerous letters attesting to his good character and
reputation for honesty, and acknowledged that the loss of his “dream job” was a
form of penalty. See Gov.Bar R. V(13)(C)(1), (4), (5), (6). Although Brockler’s
use of deception violated core ethical values, the board also found he was not
motivated by self-interest, because he honestly—albeit erroneously—believed that
his covert use of Facebook was an effective and acceptable tactic akin to more
traditional investigative tactics such as staged drug buys and the use of undercover
informants. See Gov.Bar R. V(13)(C)(2).
       {¶ 23} Despite advocating for a public-policy exception for deceptive
prosecutorial investigation tactics, Brockler admitted that his conduct violated the




                                          7
                             SUPREME COURT OF OHIO




plain language of Prof.Cond.R. 8.4(c) and argued for no more than a stayed six-
month suspension. Relator, in contrast, argued that Brockler should serve an actual
suspension from the practice of law, though he did not suggest any specific
duration.
       {¶ 24} The board acknowledged that misconduct involving dishonesty,
fraud, deceit, or misrepresentation generally warrants an actual suspension from the
practice of law. See, e.g., Disciplinary Counsel v. Karris, 129 Ohio St.3d 499,
2011-Ohio-4243, 954 N.E.2d 118, ¶ 16; Disciplinary Counsel v. Fowerbaugh, 74
Ohio St.3d 187, 658 N.E.2d 237 (1995), syllabus.
       {¶ 25} But the board also recognized that we may deviate from that rule in
the presence of significant mitigating evidence. See Disciplinary Counsel v. Potter,
126 Ohio St.3d 50, 2010-Ohio-2521, 930 N.E.2d 307 (absence of a prior
disciplinary record, efforts to rectify the consequences of the misconduct, full
cooperation in the investigation, self-reporting, and evidence of good character and
reputation apart from the charged misconduct sufficient to stay 12-month
suspension for violating fiduciary duty as the executor of an estate); Disciplinary
Counsel v. Niermeyer, 119 Ohio St.3d 99, 2008-Ohio-3824, 892 N.E.2d 434,
¶ 12-13 (absence of prior misconduct, self-reporting, cooperation in the disciplinary
process, acceptance of responsibility for misconduct, and evidence of good
character and reputation sufficient to stay 12-month suspension for altering a
document to make it appear that it had been timely filed). See also King, 84 Ohio
St.3d 174, 702 N.E.2d 862 (imposing a fully stayed one-year suspension based
upon the presence of significant mitigating evidence); Statzer, 101 Ohio St.3d 14,
2003-Ohio-6649, 800 N.E.2d 1117 (imposing a fully stayed six-month suspension
based upon the presence of significant mitigating evidence).
       {¶ 26} Noting the substantial mitigating factors present in this case—
including the board’s finding that the misconduct was an isolated incident in an
otherwise notable legal career—the board recommends that we suspend Brockler




                                         8
                                 January Term, 2016




for one year, fully stayed on the conditions that he engage in no further misconduct
and that he pay the costs of this action.
        {¶ 27} Having determined that the board’s findings of fact and conclusions
of law are supported by the record and the law, we adopt the board’s report, find
that Brockler’s use of a deceptive investigative technique to contact Dunn’s alibi
witnesses violated Prof.Cond.R. 8.4(c) and (d), and dismiss the alleged violation of
Prof.Cond.R. 3.6(a). We also find that a one-year suspension, fully stayed on the
conditions recommended by the board, is the appropriate sanction for Brockler’s
misconduct.
        {¶ 28} Accordingly, Aaron James Brockler is suspended from the practice
of law in Ohio for one year, fully stayed on the conditions that he engage in no
further misconduct and pay the costs of this proceeding. If he fails to comply with
the conditions of the stay, the stay will be lifted, and he shall serve the full one-year
suspension. Costs are taxed to Brockler.
                                                                Judgment accordingly.
        PFEIFER, KENNEDY, FRENCH, and O’NEILL, JJ., concur.
        O’CONNOR, C.J., dissents with an opinion in which LANZINGER, J., joins.
        O’DONNELL, J., dissents, with opinion.
                                 _________________
        O’CONNOR, C.J., dissenting.
        {¶ 29} The preamble to the Ohio Rules of Professional Conduct, entitled “A
Lawyer’s Responsibilities,” lays out broad obligations, recognizing that “a lawyer
not only represents clients but has a special responsibility for the quality of justice”
and that that responsibility extends “to practicing lawyers even when they are acting
in a nonprofessional capacity.” Prof.Cond.R., Preamble [1], [3]. By imposing a
marginal sanction—a fully stayed one-year suspension—on respondent, Aaron
Brockler, the majority minimizes his significant ethical violations and does so
based upon a myopic view of the Rules of Professional Conduct. The men and




                                            9
                             SUPREME COURT OF OHIO




women who serve as prosecutors in this state are authorized to enforce the law and
administer justice, one of the noblest pursuits an attorney can enjoy. Accordingly,
they must meet or exceed the highest ethical standards imposed on our profession.
Given the significant ethical violations Brockler committed, I cannot implicitly
condone the imposition of a negligible sanction for his egregious misconduct.
       {¶ 30} The substantial evidence of wrongdoing and the aggravating factors
in this case prove that Brockler committed significant violations of the Ohio Rules
of Professional Conduct. Yet faced with Brockler’s glaring disdain for the ethical
responsibilities this court imposes on all attorneys in this state, a majority of this
court imposes only a one-year suspension, fully stayed.
       {¶ 31} In the past, our punishment for lawyers’ conduct involving
dishonesty, fraud, deceit, or misrepresentation has been significantly harsher. We
indefinitely suspended an attorney who had lied to the disciplinary counsel’s
investigator. Cleveland Metro. Bar Assn. v. Gruttadaurio, 136 Ohio St.3d 283,
2013-Ohio-3662, 995 N.E.2d 190, ¶ 2-4. We imposed a one-year suspension, with
six months stayed on conditions, on an attorney who had falsely advised that her
client’s case was being settled. Disciplinary Counsel v. Johnson, 122 Ohio St.3d
293, 2009-Ohio-3501, 910 N.E.2d 1034, ¶ 7, 14. We suspended a lawyer for six
months for attempting to advance his client’s interests with evidence that the lawyer
knowingly fabricated. Cleveland Bar Assn. v. McMahon, 114 Ohio St.3d 331,
2007-Ohio-3673, 872 N.E.2d 261, ¶ 25, 30.
       {¶ 32} The disciplined attorneys in those cases were ordered to serve actual
suspensions, and none of them was a prosecutor. Instead, those cases all involved
civil matters, in which the worst outcome risked by the lawyer’s deception was the
loss of money by a party.
       {¶ 33} In contrast, the stakes in this case involved imprisonment for up to a
life term. Brockler actively hindered the pursuit of justice in a criminal proceeding
on multiple occasions, by lying to alibi witnesses in an effort to make them change




                                         10
                                       January Term, 2016




their statements. He made every effort to hide his deceptive activities until they
were uncovered, and then he refused to admit that his actions were wrong.
         {¶ 34} Failing to require Brockler to serve even a single day of his
suspension does little to establish that this court will ensure the integrity of
prosecutors and the ethical administration of justice. Indeed, none of the cases upon
which the majority opinion relies to support a fully stayed sentence involves a
lawyer lying in a criminal case to the detriment of a criminal defendant and,
ultimately, to the detriment of the public’s faith in our courts and in justice.1
         {¶ 35} The stakes in this case are significantly higher than those in the cases
cited in the majority opinion. The courts are the bulwark of justice, and we must
prove that government is trustworthy and working tirelessly but fairly, ethically,
and honestly in support of justice. To do that, we must require the offices of Ohio’s
prosecuting attorneys to strive for flawless obedience to the ethical rules governing
all lawyers practicing in the state.
         {¶ 36} Despite Brockler’s claims about his training in the prosecutor’s
office, Brockler admits that his actions at issue in this case were not directed by a
supervisor and that whatever a supervisor may have told him in the past does not

1
  In Columbus Bar Assn. v. King, the attorney lied to a landlord in a slip-and-fall case in order to
add a slander claim to the complaint of his client, the landlord’s former tenant. 84 Ohio St.3d 174,
175-177, 702 N.E.2d 862. The opinion does not disclose if the landlord ever had to defend the false
slander claim in court or if the deception came out prior to trial. In Cincinnati Bar Assn. v. Statzer,
this court found that a lawyer engaged in subterfuge that intimidated a witness during a deposition
related to a disciplinary investigation for failing to provide a file to a former client. 101 Ohio St.3d
14, 2003-Ohio-6649, 800 N.E.2d 1117, ¶ 2, 16. Disciplinary Counsel v. Niermeyer concerned an
attorney who lied when he backdated a workers’ compensation claim in order to cover up the fact
that he missed a filing deadline. 119 Ohio St.3d 99, 2008-Ohio-3824, 892 N.E.2d 434, ¶ 4. In that
case, the attorney was “almost immediately * * * struck with regret and overwhelmed with guilt”
over his deception. Id. at ¶ 5. In contrast, Brockler steadfastly denied that his actions were unethical.
The deceit in Disciplinary Counsel v. Potter, 126 Ohio St.3d 50, 2010-Ohio-2521, 930 N.E.2d 307,
bears even less resemblance to Brockler’s case. There, Potter’s deception involved giving money
to a friend to purchase, at the fairly appraised value, property from an estate of which Potter was the
executor, with the plan calling for Potter to ultimately become owner of the land. Id. at ¶ 6. While
recognizing that each of these cases involved dishonesty, fraud, deceit, or misrepresentation that
was wholly inappropriate for a lawyer and was a discredit to our honorable profession, the stakes at
issue in these cases were, at most, monetary and wholly inapposite to the circumstances here.




                                                   11
                             SUPREME COURT OF OHIO




excuse his conduct. It is the responsibility of every Ohio lawyer to know and follow
the Rules of Professional Conduct. There is no separate code of conduct that
prosecutors alone get to play by.
       {¶ 37} I am cognizant of Brockler’s desire to serve the public and to do what
is “right” by protecting society from dangerous criminal defendants, just as I am
aware of the intensely difficult nature of such work, which often involves tragic
circumstances, elicits visceral reactions, and presents great risks for both the
accuser and the accused. See Disciplinary Counsel v. LoDico, 106 Ohio St.3d 229,
2005-Ohio-4630, 833 N.E.2d 1235, ¶ 30. Although criminal cases “bring the
responsibility and necessity” of zealous representation, a prosecuting attorney “is
not endowed with a concomitant right to denigrate the court in discharging that
responsibility.” Id.
       {¶ 38} In light of the series of lies and misrepresentations here and the
impact they have on the profession and our communities, I would indefinitely
suspend Brockler’s license to practice law in this state.
                                    CONCLUSION
       {¶ 39} Because I believe that the court’s sanction in this case is entirely
incongruous with Brockler’s behavior, I cannot subscribe to it. For his ethical
misdeeds, I would indefinitely suspend Brockler’s license to practice law in the
state of Ohio. Accordingly, I dissent.
       LANZINGER, J., concurs in the foregoing opinion.
                               _________________
       O’DONNELL, J., dissenting.
       {¶ 40} Respectfully, I dissent.
       {¶ 41} Respondent engaged in unacceptable dishonest conduct that
materially affected the administration of justice, and I would impose an indefinite
suspension.
                               _________________




                                         12
                                January Term, 2016




       Scott J. Drexel, Disciplinary Counsel, and Donald M. Scheetz, Assistant
Disciplinary Counsel, for relator.
       Montgomery, Rennie & Jonson, George D. Jonson, and Kimberly Vanover
Riley, for respondent.
                               _________________




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