[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Rusu, Slip Opinion No. 2019-Ohio-1201.]




                                        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. 2019-OHIO-1201
                         DISCIPLINARY COUNSEL v. RUSU.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
        may be cited as Disciplinary Counsel v. Rusu, Slip Opinion No.
                                   2019-Ohio-1201.]
Attorneys—Misconduct—Violations of the Code of Judicial Conduct and the Rules
        of Professional Conduct, including failing to recuse from cases in which
        judge’s    impartiality    could    reasonably     be   questioned—Significant
        mitigating factors—Public reprimand.
      (No. 2018-1436—Submitted January 9, 2019—Decided April 3, 2019.)
   ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
                                  Court, No. 2018-003.
                                  __________________
        Per Curiam.
        {¶ 1} Respondent, Judge Robert Nathaniel Rusu Jr., of Youngstown, Ohio,
Attorney Registration No. 0062431, was admitted to the practice of law in Ohio in
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1993. He was appointed to the Mahoning County Probate Court in July 2014 and
elected to a full term on that court in November 2014.
       {¶ 2} Relator, disciplinary counsel, filed a two-count amended complaint
with the Board of Professional Conduct on May 16, 2018. That complaint alleged
that among other things, Rusu engaged in professional misconduct by presiding
over numerous cases in which he had previously served as attorney of record and
failing to timely notify multiple clients that he was terminating his representation
following his appointment to the bench. The parties entered into stipulations of
fact, agreed that Rusu had committed two of the alleged rule violations, and agreed
to dismiss a third.    Relator presented evidence regarding two other alleged
violations at a hearing before a panel of the board.
       {¶ 3} The panel made findings of fact and agreed that Rusu’s conduct
violated several rules of the Code of Judicial Conduct that required him to
disqualify himself in any proceeding in which his impartiality might reasonably be
questioned, to avoid impropriety and the appearance of impropriety, and to act at
all times in a manner that promotes public confidence in the independence,
integrity, and impartiality of the judiciary. The panel also found that Rusu failed
to take reasonable steps to protect his clients’ interests after terminating his
representation.    The panel unanimously dismissed two remaining alleged
violations. On those findings and in the presence of one aggravating factor and
seven mitigating factors, the panel recommended that Rusu be publicly
reprimanded for his misconduct.
       {¶ 4} The board issued a report adopting the panel’s findings and
recommended sanction, and neither party has objected to that report. Based on our
independent review of the record, we adopt the board’s findings and publicly
reprimand Rusu for his misconduct.




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                                   Misconduct
 Count One: Presiding over Cases in which Judge Rusu Previously Served as an
                                Attorney of Record
         {¶ 5} Beginning in August 2012, Rusu represented Beth Ann Malone in her
capacity as the executor of her aunt’s probate estate. After the Mahoning County
Probate Court approved the inventory and appraisal that Rusu had filed on
Malone’s behalf, Rusu assisted Malone in distributing the estate assets. As the
remainder beneficiary, Malone’s mother was to receive two timeshares and a cash
distribution of $3,851.53. Malone’s mother disclaimed the timeshares, and they
passed to Malone. After handling the paperwork to accomplish those transfers,
Rusu prepared the final fiduciary’s account.
         {¶ 6} In early January 2014, Malone signed the final accounting and paid
Rusu’s fees, but she informed Rusu’s paralegal that she did not have enough checks
to issue the final distribution to her mother. Malone stated that she would obtain
additional checks and would return with a check for her mother. In late May 2014,
Malone informed Rusu’s paralegal that she had used the estate funds for her own
benefit because she believed that her mother had disclaimed her entire interest in
the estate. The paralegal informed Malone that her mother had disclaimed only her
interest in the timeshares and that Malone would need to replace the money she had
taken from the estate checking account. The following month, Rusu sent Malone a
letter advising her to reimburse the estate funds immediately, but Malone did not
do so.
         {¶ 7} In July 2014, Rusu wrote a letter to Malone informing her that he
would no longer act as her counsel due to his appointment to the bench but that the
other attorneys at his former firm would continue to represent her. He successfully
moved the court to permit the substitution of his former associate, Charlene Burke,
as Malone’s counsel. But Rusu did not report Malone’s misuse of funds to the court




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even though the estate was insolvent and the fiduciary’s account was delinquent
before he took the bench.
        {¶ 8} In February 2016, a deputy clerk issued citations to Malone and Burke
ordering them to appear and show cause why they had failed to timely file a status
report regarding the estate. After a hearing, a magistrate issued a decision finding
that no fiduciary’s account had been filed and that Malone did not have the funds
to make the final distribution to her mother. The magistrate recommended that the
court order Burke to file an application for delayed distribution on behalf of Malone
with a proposed promissory note and mortgage on Malone’s property. On April 5,
2016, Judge Rusu adopted the magistrate’s decision in its entirety. In addition,
Rusu later (1) adopted a magistrate’s decision finding that Malone had reached a
settlement agreement to compensate her mother, (2) issued orders withdrawing the
citations for Malone and Burke to appear and show cause, and (3) issued an order
rejecting the fiduciary’s final account because no application for attorney fees had
been filed with the court. A visiting judge presided over the remaining proceedings
in the case.
        {¶ 9} At his disciplinary hearing, Rusu admitted that when the case came
before him as a probate judge, he was aware that he had previously represented
Malone as executor of the estate. He explained that he did not initially believe that
his conduct would create an appearance of impropriety, however, because all the
parties were represented by counsel, had agreed to the resolution of the case, and
had never formally appeared before him.
        {¶ 10} Relator and Rusu have identified approximately 170 additional cases
in which Rusu served as counsel of record and then took some action after
becoming a judge. More than 120 of those actions involved nothing more than a
deputy clerk issuing form letters and notices bearing Rusu’s signature or stamping
Rusu’s signature to accountings after the deputy clerk had reviewed them and had
confirmed that they were complete and correct. In other cases, Rusu waived certain




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annual reporting requirements when conditions were not subject to change over
time, approved settlement distributions that were agreed upon or that were
consistent with previous distributions in the same case, appointed fiduciaries
pursuant to a decedent’s will or the agreement of all interested parties, and approved
guardian or attorney fees (including attorney fees for his former firm) in accordance
with an established fee schedule.
       {¶ 11} Three of the identified cases involved Judge Rusu’s approval of a
magistrate’s decision. In two of those cases, he approved a magistrate’s decision
to withdraw a citation that had been issued to a guardian or fiduciary after the
problem that had caused the citation to be issued was cured. In the third, he
approved a magistrate’s decision to terminate a guardianship at the request of all
involved parties, including the ward’s treating physician.
       {¶ 12} The parties stipulated and the panel and board found that Rusu’s
conduct violated Jud.Cond.R. 1.2 (requiring a judge to act at all times in a manner
that promotes public confidence in the independence, integrity, and impartiality of
the judiciary and to avoid impropriety or the appearance of impropriety) and
2.11(A) (requiring a judge to disqualify himself in any proceeding in which the
judge’s impartiality might reasonably be questioned).        Based on the parties’
stipulations and the evidence presented at the hearing, the panel unanimously
dismissed an additional allegation with respect to this count. See Gov.Bar R.
V(12)(G). We adopt these findings of fact and misconduct.
 Count Two: The Sale of Rusu’s Law Practice and the Termination of His Client
                                    Representations
       {¶ 13} When Rusu was initially appointed and later elected to a full term on
the Mahoning County Probate Court, he owned 49 percent of the outstanding stock
in Lane & Rusu Co., L.P.A. After taking the bench, Rusu notified a number of his
clients with active matters that he was terminating his representation due to his
judicial appointment and offered them the services of other attorneys at his former




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law firm. However, he remained the attorney of record in a large number of open—
but largely dormant—estates and guardianships. He did not timely notify those
clients of the termination of his representation or give those clients the opportunity
to employ other counsel or request the return of their files. And although firm
associate Charlene Burke purchased Rusu’s 49 percent interest in the firm in April
2015, neither Rusu nor Burke provided written notice of the sale to the firm’s
clients.
           {¶ 14} The panel and board found that this conduct violated Prof.Cond.R.
1.16(d) (requiring a lawyer withdrawing from representation to take steps
reasonably practicable to protect a client’s interest). The panel unanimously
dismissed another alleged violation that purportedly arose from the sale of Rusu’s
ownership interest in his former firm. We adopt the board’s findings with respect
to this count.
                                      Sanction
           {¶ 15} When imposing sanctions for judicial misconduct, we consider all
relevant factors, including the ethical duties that the judge violated, the aggravating
and mitigating factors listed in Gov.Bar R. V(13), and the sanctions imposed in
similar cases. See Disciplinary Counsel v. Elum, 148 Ohio St.3d 606, 2016-Ohio-
8256, 71 N.E.3d 1085, ¶ 9. “The primary purpose of judicial discipline is to protect
the public, guarantee the evenhanded administration of justice, and maintain and
enhance public confidence in the integrity of this institution.” Disciplinary Counsel
v. Russo, 124 Ohio St.3d 437, 2010-Ohio-605, 923 N.E.2d 144, ¶ 14.
           {¶ 16} The sole aggravating factor present in this case is Rusu’s
commission of multiple offenses. See Gov.Bar R. V(13)(B)(4). The parties have
stipulated that four mitigating factors are present—that Rusu has no prior
disciplinary record, did not act with a dishonest or selfish motive, made full and
free disclosure of his actions and demonstrated a cooperative attitude toward the
disciplinary proceedings, and demonstrated his character and reputation for




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significant community involvement as well as his commitment to the judicial
system and the citizens he serves. See Gov.Bar R. V(13)(C)(1), (2), (4), and (5).
The board agreed that these factors are present and also found that Rusu was frank
and open during his testimony before the panel, took responsibility for his actions,
did not actually harm his clients, and has implemented measures to prevent him
from inadvertently presiding over any matter in which he participated in his private
practice.
       {¶ 17} On these facts, the board recommends that we publicly reprimand
Rusu for his misconduct. In support of that recommendation, the board notes that
we have previously publicly reprimanded two judges who presided over cases in
which their impartiality could reasonably be questioned. In Disciplinary Counsel
v. Oldfield, 140 Ohio St.3d 123, 2014-Ohio-2963, 16 N.E.3d 581, we publicly
reprimanded a judge who presided over 53 cases in which a public defender
appeared as counsel both during and immediately after a three-day period when the
public defender was living in the judge’s home and riding to and from the
courthouse with the judge. In Disciplinary Counsel v. Medley, 93 Ohio St.3d 474,
756 N.E.2d 104 (2001), we publicly reprimanded a judge who failed to recuse
himself from a case after he had spoken with the defendant by telephone following
her arrest on a charge of driving under the influence, picked her up at the police
station, and drove her home. We have also publicly reprimanded an attorney who
withdrew from representing a client without taking reasonably practicable steps to
protect the client’s interest. See Trumbull Cty. Bar Assn. v. Masek, 150 Ohio St.3d
9, 2016-Ohio-3350, 78 N.E.3d 817.
       {¶ 18} Nothing in the record indicates that Rusu’s misconduct that is at
issue in this case caused measurable harm to any litigants or resulted in anything
less than the evenhanded administration of justice.        By performing judicial
functions in the same cases in which he had previously represented clients,
however, Rusu created an appearance of impropriety that adversely reflected on the




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independence, integrity, and impartiality of the judiciary—even though many of his
actions were ministerial in nature. And by failing to notify a substantial number of
clients with dormant cases that he was leaving his firm to become a judge, he
deprived those clients of the opportunity to select new counsel of their own
choosing before their cases resumed.
       {¶ 19} Having considered that misconduct, the significant mitigating
factors present in this case, and the sanctions we have imposed for comparable
misconduct, we agree that a public reprimand is the appropriate sanction.
       {¶ 20} Accordingly, Robert Nathaniel Rusu Jr. is publicly reprimanded for
violating Jud.Cond.R. 1.2 and 2.11(A) and Prof.Cond.R. 1.16(d). Costs are taxed
to Rusu.
                                                            Judgment accordingly.
       O’CONNOR, C.J., and KENNEDY, FRENCH, FISCHER, DONNELLY, and
STEWART, JJ., concur.
       DEWINE, J., not participating.
                               _________________
       Scott J. Drexel, Disciplinary Counsel, and Jennifer A. Bondurant, Assistant
Disciplinary Counsel, for relator.
       Montgomery, Rennie & Jonson, L.P.A., George D. Jonson, and Lisa M.
Zaring, for respondent.
                               _________________




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