[Cite as Disciplinary Counsel v. McCormack, 133 Ohio St.3d 192, 2012-Ohio-4309.]




                     DISCIPLINARY COUNSEL v. MCCORMACK.
                    [Cite as Disciplinary Counsel v. McCormack,
                        133 Ohio St.3d 192, 2012-Ohio-4309.]
Attorneys—Violations of Code of Judicial Conduct and Rules of Professional
        Conduct—One-year suspension, stayed on conditions.
 (No. 2011-2055—Submitted January 18, 2012—Decided September 26, 2012.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                     Discipline of the Supreme Court, No. 10-086.
                                  __________________
        Per Curiam.
        {¶ 1} Respondent, Thomas Arthur McCormack of Cleveland, Ohio,
Attorney Registration No. 0015570, was admitted to the practice of law in Ohio in
1979.    McCormack served as a magistrate in the Medina County Court of
Common Pleas, Domestic Relations Division, until May 2009. On October 11,
2010, relator, disciplinary counsel, charged McCormack with multiple violations
of the current and former Code of Judicial Conduct1 and the Rules of Professional
Conduct arising from his conduct as the magistrate presiding over multiple
hearings in a postdecree domestic-relations case.
        {¶ 2} The parties waived a hearing and submitted this matter to a panel of
the Board of Commissioners on Grievances and Discipline on their stipulations as
to facts, mitigating factors, exhibits, and violations of the Code of Judicial
Conduct, as well as their joint motion in support of a six-month, fully stayed
suspension. The panel found that there was clear and convincing evidence to


1. McCormack was charged under both the current and former versions of the Code of Judicial
Conduct because the charged conduct occurred before and after March 1, 2009, the effective date
of the current code.
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prove the stipulated violations and recommended that the board adopt the parties’
stipulated sanction. The board adopted the panel report in its entirety.
       {¶ 3} We adopt the facts and violations as stipulated by the parties, but
based upon our concerns about the current state of McCormack’s mental health,
the absence of direct evidence from the professionals who had provided his early
treatment, and the brief period of treatment he had received from the psychiatrist
who testified in his behalf, we find that a one-year suspension, all stayed on
conditions, is the appropriate sanction for McCormack’s misconduct.
                                   Misconduct
       {¶ 4} In his role as a magistrate, McCormack was assigned to hear a
postdecree motion to modify child support filed on November 26, 2007, in the
matter of Sejka v. Sejka, Medina C.P. No. 06 DR 0097, and 13 additional motions
filed by the parties through April 6, 2009, that covered various issues including
custody, child support, visitation, and spousal support. During that span of time,
McCormack conducted hearings on six separate days. At four of the six hearings
McCormack conducted in the Sejka matter, he conducted himself in an impatient,
undignified, and discourteous manner that was highly prejudicial to the
administration of justice.
       {¶ 5} At a July 17, 2008 hearing, which was a continuation of a hearing on
a motion to modify child support, McCormack goaded attorney Joseph Stafford,
Mr. Sejka’s counsel, during his opening statement. McCormack asked whether
Stafford would like to address contempt motions first, but when Stafford agreed
that they could proceed with a contempt motion, McCormack responded, “You’re
whining and taking up our time, which is part of the reason we don’t get to your
client’s case.” And when Stafford mentioned the prior testimony of one of Mr.
Sejka’s witnesses, McCormack chided him for not properly subpoenaing the
witness. Following an exchange with Stafford about discovery matters, Stafford
asked McCormack to recuse himself, and McCormack replied, “Absolutely not.




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Here, do you understand? I don’t care. I really don’t care. You’re right. I don’t
care, Okay? [Your client] thinks the whole world’s unfair. It’s far beyond me.”
       {¶ 6} McCormack laughed and made a face at some of the questions that
Stafford asked Ms. Sejka on cross-examination, and when Stafford stated that he
did not find the laughter appropriate, McCormack replied, “I find it to be
absolutely appropriate.”   McCormack answered a question that Stafford had
directed to Ms. Sejka and then accused Stafford and his client of complaining
when Stafford stated that McCormack’s conduct made it difficult to question the
witness. While Ms. Sejka was on the witness stand, McCormack questioned Mr.
Sejka, who was seated at the counsel table, about his mortgage and his daughter’s
activities and then engaged in a general discussion with Mr. Sejka, Stafford, and
Stephen Bailey, Ms. Sejka’s counsel, in what Stafford described as a “free for
all.” At some point, Ms. Sejka asked if she could step down from the witness
stand, and McCormack granted her request, but it is unclear whether the attorneys
had finished questioning her. Thereafter, McCormack stated that he wanted to
continue the hearing to the next day, and after a discussion with the attorneys, the
hearing was continued to July 23, 2008.
       {¶ 7} On July 23, however, rather than continuing with the hearing on
modification of child support, McCormack began a hearing on school placement,
even though no motion on that issue was before the court. McCormack overruled
Bailey’s objections to trying that issue without notice. After Bailey had cross-
examined Mr. Sejka, McCormack asked the guardian ad litem for the parties’
daughter if she had any questions. He permitted the guardian to lecture counsel
and the parties on their behavior, and after she had stated that counsel and the
parties made her ill, McCormack replied, “Here, you’re walking down the street.
You run into somebody in a wheelchair, handicapped. Do they make you sick?”
The guardian replied, “No,” and McCormack responded, “Oh, these gentlemen
here, this is what they’re capable of. Obviously, this is what they’re capable of,



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okay?” McCormack continued to explain that the parties would fight “no matter
what.”
         {¶ 8} During this hearing, McCormack failed to rule on several of
Stafford’s objections, admonished Bailey to shut up, and accused him of being a
liar. When McCormack threatened to hold Bailey in contempt, Bailey simply
replied, “Your honor.” Respondent then found Bailey in contempt, but at the
conclusion of the hearing, he merely admonished Bailey.
         {¶ 9} Bailey also asked McCormack to note on the record that the
proceedings had heightened the tension between the parties.            McCormack
responded:


                I’m going to tell you what, Mr. Bailey. I’m going to tell
         you what. I didn’t have a psychiatrist in here testifying that this
         kid’s going downhill because of some proceedings in this Court.
         Those two people sitting there did it all by themselves, and to
         suggest otherwise is specious and nonsense, okay, and if that’s the
         way you want to go, okay.


He also questioned Ms. Sejka extensively while she was on the witness stand and
became argumentative with her, saying: “So it’s a concern for you. It’s not a
concern for [your daughter]”; “Well, I really don’t get it. Pardon me for being
stupid”; and “If [your daughter] goes to another school she won’t be able to have
that, nonsense.”
         {¶ 10} A hearing was scheduled for December 16, 2008, to address
various motions of the parties, but the testimony elicited during the hearing that
day was never tied to a particular motion.         Soon after the hearing began,
McCormack instructed the parties to leave the room so that counsel could discuss
settlement. On the record, Greg Moore (attending in Stafford’s stead), Bailey, the




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guardian, and McCormack discussed the parties’ behavior, attitudes, and other
issues, including the factors to be considered in determining child support.
       {¶ 11} When the parties reentered the courtroom, McCormack asked them
what they wanted, and Mr. Sejka stated that he wanted shared parenting.
McCormack engaged in a lengthy discussion with Ms. Sejka about her former
husband’s feelings and motivations, focusing entirely on shared parenting without
any mention of the motion to modify child support that was before the court.
After Ms. Sejka expressed her frustration with the process and stated that custody
had not been an issue until she asked for additional child support, McCormack
said, “You’re empowered by being the custodian, and you intend to remain that.
That will remain to be seen on the 9th.”        Ms. Sejka sought to explain her
comment, but McCormack replied,


       Here, stop, control your client, counsel.      You know, I’m not
       listening to anyone else in this courtroom. She don’t want to settle
       it, okay? I entered into this as a result of counsel talking about
       settlement. She don’t [sic] want to settle it, fine, but I don’t want
       to hear about how I’m taking something away from her from
       inquiring into settlement. I find that offensive and paranoid.


To which Bailey replied, “No, it’s not paranoid,” and the recording of the hearing
ended abruptly.
       {¶ 12} On April 10, 2009, McCormack conducted a hearing on an
emergency motion for custody that had been filed by Mr. Sejka. While Ms. Sejka
was on the witness stand, McCormack questioned Mr. Sejka, who was seated at
counsel table and was not under oath, about drug tests that had recently been
taken by the parties, asking whether he had revealed the results of those tests to a
third party. Stafford referred to someone who had complained to the court about



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earlier proceedings and how those complaints had influenced McCormack’s
demeanor during the hearing. McCormack became offended, and while laughing,
said, “I like that. I like that. Here’s what we’re going to do. I’m vacating the
[April 6, 2009] order [granting Mr. Sejka’s ex parte emergency custody motion]
and I’m shutting down this hearing and mother’s parenting time will proceed.”
Stafford objected, noting that he had additional witnesses, but McCormack
replied:


       Here, here, I really don’t care. What you need to do now is take
       this up to my judge, okay, and explain to her how I did it all
       wrong. Six months from now when you get that hearing, we’ll see
       how I dealt with it, and if it doesn’t go well, you can spend the
       next two years taking it up to the Court of Appeals. You accuse
       me of something like that ever again, Mr. Stafford, and I will hold
       you in contempt and it will cost you a lot of money to get out of
       jail * * * allow me to assure you * * *.


McCormack then refused to allow Stafford to proffer information for the record
and terminated the hearing.
       {¶ 13} On May 29, Judge Mary Kovack of the Medina County Court of
Common Pleas, Domestic Relations Division, declared a mistrial in the Sejka
postdecree matter, stating that McCormack had “failed to allow the parties
meaningful opportunity to present testimony and evidence on the issues” and
indicating that the record before her did not allow her to resolve the pending
issues. Further, the judge found that McCormack had improperly conducted a
hearing on school placement when there was no motion pending on that issue and
when the parties had no notice of the nature of the hearing.




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                                January Term, 2012




       {¶ 14} The parties stipulated and the panel and board found that the
conduct that occurred before March 1, 2009, violated former Canon 1 of the Code
of Judicial Conduct (requiring a judge to uphold the integrity and independence of
the judiciary), Canon 2 (requiring a judge to respect and comply with the law and
act at all times in a manner that promotes public confidence in the integrity and
impartiality of the judiciary), Canon 3(B)(4) (requiring a judge to be patient,
dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with
whom the judge deals in an official capacity, and to require similar conduct of
lawyers, staff, court officials, and others subject to the judge’s direction and
control), and Canon 3(B)(8) (requiring a judge to dispose of all judicial matters
promptly, efficiently, and fairly and to comply with the guidelines set forth in the
Rules of Superintendence for the Courts of Ohio).
       {¶ 15} The parties further stipulated and the panel and board found that
McCormack’s conduct after March 1, 2009, violated Jud.Cond.R. 1.2 (requiring a
judge to act in a manner that promotes public confidence in the independence,
integrity, and impartiality of the judiciary and to avoid impropriety and the
appearance of impropriety), 2.2 (requiring a judge to uphold and apply the law
and to perform all duties of the judicial office fairly and impartially), 2.5(A)
(requiring a judge to perform judicial and administrative duties competently and
diligently and to comply with guidelines set forth in the Rules of Superintendence
for the Courts of Ohio), 2.6(A) (requiring a judge to accord every person who has
a legal interest in a proceeding, or that person’s lawyer, the right to be heard
according to law), 2.6(B) (permitting a judge to encourage parties to a proceeding
and their lawyers to settle matters in a dispute but prohibiting a judge from
coercing any party into settlement), and 2.8(B) (requiring a judge to be patient,
dignified, and courteous to litigants, jurors, witnesses, lawyers, court staff, court
officials, and others with whom the judge deals in an official capacity, and to
require similar conduct of lawyers, court staff, court officials, and others subject



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to the judge’s direction and control). The parties also stipulated and the panel and
board also found that McCormack’s conduct violated Prof.Cond.R. 8.4(d)
(prohibiting a lawyer from engaging in conduct that is prejudicial to the
administration of justice).
       {¶ 16} The record demonstrates that McCormack conducted himself in an
undignified and discourteous manner, treated the litigants and their counsel with
disdain, permitted the guardian ad litem to lecture the parties on the record,
terminated hearings before the parties had presented all their evidence and had
made a record of their objections, acted on his own whims rather than inquiring
into the best interests of the child, failed to resolve any of the matters pending
before him for more than a year and a half, and failed to conduct hearings in a
manner that would permit the judge assigned to the case to resolve those issues in
his stead. We therefore adopt the facts as stipulated by the parties and found by
the panel and board.
                                     Sanction
       {¶ 17} 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 BCGD Proc.Reg. 10(B). Disciplinary Counsel v. Broeren, 115 Ohio
St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21.
       {¶ 18} The parties stipulated and the board found that the following
mitigating factors are present: (1) McCormack does not have a prior disciplinary
record, (2) he provided full and free disclosure during the investigation and
demonstrated a cooperative attitude in the disciplinary proceedings, and (3) he has
been diagnosed with a mental disability by a qualified health-care professional
and received treatment from Dr. Scott Martin, a psychiatrist, who has opined that




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the mental disability contributed to the cause of the misconduct and that he can
presently practice law in a competent, ethical, and professional manner without
restraint. See BCGD Proc.Reg. 10(B)(2)(a), (d), and (g).
          {¶ 19} The parties did not stipulate to any aggravating factors, and the
board did not find that any aggravating factors are present. We find, however,
that McCormack engaged in a pattern of misconduct involving multiple
offenses—albeit in a single case—and caused harm to vulnerable litigants who
bore the time commitment and expense of multiple hearings for well over a year
without movement toward the resolution of their conflict. See BCGD Proc.Reg.
10(B)(1)(c), (d), and (h).
          {¶ 20} The parties cite a number of cases in support of their
recommendation of a six-month, fully stayed suspension.        They note that in
Cleveland Bar Assn. v. Cleary, 93 Ohio St.3d 191, 754 N.E.2d 235 (2001), we
imposed a six-month suspension on a judge who had offered a pregnant criminal
defendant a quid pro quo arrangement: if the defendant agreed to complete her
pregnancy, she would be sentenced to probation, but if she planned to have an
abortion, she would receive a prison term.        We also imposed a six-month
suspension on a judge who had violated multiple Canons of the Code of Judicial
Conduct when he (1) served as the judge and testified as a witness in a criminal
contempt proceeding, (2) found a woman in civil contempt and sanctioned her
without filing a complaint, advising her of her right to counsel, or memorializing
the proceedings with a journal entry, (3) relied on an outdated statute book to
sentence a juvenile offender and engaged in ex parte communications with the
juvenile-probation department, (4) conducted a probation-revocation hearing
without counsel for the juvenile offenders being present, and (5) failed to recuse
himself after instructing the prosecutor to bring felony charges against the two
offenders. Disciplinary Counsel v. Karto, 94 Ohio St.3d 109, 760 N.E.2d 412
(2002).



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       {¶ 21} The parties, however, observe that the misconduct of Cleary and
Karto was more egregious than that of McCormack because Cleary had
manipulated a criminal defendant’s freedom based on Cleary’s personal beliefs
and Karto’s misconduct occurred in multiple cases involving multiple defendants
and affected the freedom of some criminal defendants. In contrast, they argue,
McCormack’s impatient and discourteous demeanor made it difficult for the
parties and counsel in a single matter to present their evidence and arguments to
the court and delayed the resolution of that case.
       {¶ 22} The parties recognize that we have imposed even more severe
sanctions on judges who have exhibited similar unprofessional, discourteous, and
impatient behavior, but argue that in those cases, the conduct was more egregious
and pervasive and of longer duration than McCormack’s. See, e.g., Disciplinary
Counsel v. Parker, 116 Ohio St.3d 64, 2007-Ohio-5635, 876 N.E.2d 556
(imposing an 18-month suspension with six months stayed on a judge with
narcissistic-personality disorder whose acts of bias, coercion, intemperance, and
dishonesty included jailing a gallery spectator for contempt without cause,
presiding over a defendant’s plea and sentencing after participating in his arrest,
attempting to coerce plea agreements in criminal cases, humiliating a victim of
domestic violence in court, and repeatedly mistreating participants in court
proceedings), and Disciplinary Counsel v. O’Neill, 103 Ohio St.3d 204, 2004-
Ohio-4704, 815 N.E.2d 286 (imposing a two-year suspension with one year
stayed on conditions on a judge who, over a period of more than five years,
engaged in coercive tactics to improperly influence disposition of criminal cases
and engaged in a pattern of misrepresentation and rude, undignified, and
unprofessional conduct that included abusive verbal outbursts, unjustified
expulsions from the courtroom, and berating or humiliating persons in the
presence of others). Furthermore, the parties argue, unlike Parker and O’Neill,




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McCormack has presented mitigating evidence that demonstrates he suffered
from anxiety and posttraumatic-stress disorder at the time of his misconduct.
        {¶ 23} The parties suggest that McCormack’s misconduct is most
comparable to that in Disciplinary Counsel v. Hoague, 88 Ohio St.3d 321, 725
N.E.2d 1108 (2000), in which we imposed a six-month fully stayed suspension on
a judge who misused the authority of his office to summon, intimidate, and
reprimand two persons who he believed had recklessly and erratically driven an
automobile in his presence.
        {¶ 24} While we agree that McCormack’s conduct is not as egregious as
that of Cleary or Karto, or as extreme or pervasive as the conduct of Parker or
O’Neill, we find that it is more serious than the single incident of misconduct at
issue in Hoague. And although the evidence demonstrates that McCormack was
diagnosed with anxiety and posttraumatic-stress disorder following his treatment
for a life-threatening medical condition in 2005 and strongly suggests that his
conditions contributed to cause his misconduct, we have some reservations about
considering McCormack’s mental-health disorders as a mitigating factor in this
case.   Specifically, we find that neither of the treatment professionals who
testified on McCormack’s behalf stated that his mental-health disorders
contributed to cause his misconduct and that the only direct evidence of
McCormack’s mental-health treatment is limited to the few short months
immediately before the parties agreed to the stipulations in this case.
        {¶ 25} Dr. Philip Cusumano, one of McCormack’s physicians, testified
that McCormack was diagnosed with a serious heart condition that required
surgical intervention in August 2005. The following month, he developed an
infection that required additional surgery. He was first diagnosed with anxiety in
October 2005 and was later diagnosed with posttraumatic-stress disorder and
depression. Dr. Cusumano testified that McCormack’s anxiety and stress reaction
responded to medication and psychotherapy but that when he last saw him in



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April 2009, McCormack was still suffering from these conditions. He believed
that “McCormack probably had a short temper to begin with,” but that “this
tremendous stress he was under fueled those symptoms.” Dr. Cusumano noted a
report that McCormack had outbursts and agitation at home, and he testified that
McCormack would have been particularly susceptible to outbursts of temper that
he could not control when placed in highly stressful circumstances. He did not go
so far as to say that McCormack’s conditions contributed to cause the misconduct
at issue in this case.
        {¶ 26} Although Dr. Cusumano testified about McCormack’s receipt of
and positive response to treatment for his mental-health conditions, he
acknowledged that he had not received any direct communications from the
treating psychologist and concluded that “no news is good news.” He also stated
that he and his colleagues “had to really constantly work on getting [McCormack]
to comply and follow up with any medical regimen, whether it was seeing a
psychologist or whether it was seeing a medical doctor.” Though he did not know
whether McCormack had received continuing treatment for his mental-health
issues, he stated that he would not be surprised to hear that McCormack had
discontinued treatment.
        {¶ 27} Dr. Martin testified that he began treating McCormack on January
7, 2011. McCormack presented himself as having experienced persistent anxiety
for several weeks that caused difficulty sleeping, problems in his relationship with
his wife, and fits of anger and rage. Although Dr. Martin diagnosed him with an
adjustment disorder and anxiety, his symptoms were not severe enough to require
medication. McCormack did, however, begin weekly psychotherapy sessions,
and as he began to gain control over his anger, frustration, and rage, the frequency
of those sessions was reduced to every two weeks. By April 22, 2011, Dr. Martin
reported that McCormack was not significantly impaired at work.             And at
Martin’s August 11, 2011 deposition, he testified that McCormack’s anxiety,




                                        12
                               January Term, 2012




posttraumatic-stress disorder, and depression had fully resolved, that he no longer
had any primary psychiatric diagnosis, and that he is capable of competently,
professionally, and ethically practicing law without the need for any ongoing
psychotherapy or psychopharmacological medication.          But when questioned
about McCormack’s diagnoses and their effect on his work prior to 2011, Martin
testified that he did not know what McCormack was experiencing at that time.
        {¶ 28} Although Dr. Martin did testify that McCormack has fully
recovered from his mental-health disorders, we remain troubled by the relatively
brief duration of his treatment relationship with McCormack—particularly in light
of Dr. Cusumano’s testimony that McCormack was not the most compliant of
patients and the absence of any testimony or other direct evidence from other
mental-health professionals who had treated him since his initial diagnosis in late
2005.
        {¶ 29} Therefore, we find that the proper sanction for McCormack’s
misconduct is a one-year suspension, fully stayed on the conditions that he
commit no further misconduct and that within 60 days of the effective date of this
opinion, he (1) submit to a mental-health evaluation conducted by the Ohio
Lawyers Assistance Program (“OLAP”), (2) enter into an OLAP contract, if
OLAP determines that treatment is necessary, the duration of which shall be
determined by OLAP, (3) complies with all OLAP treatment recommendations,
and (4) serves a period of monitored probation in accordance with Gov.Bar R.
V(9) until the expiration of his OLAP contract or 12 months from the effective
date of this order, whichever occurs later. If McCormack fails to comply with the
conditions of the stay, the stay will be lifted, and McCormack will serve the entire
one-year suspension. Costs are taxed to McCormack.
                                                            Judgment accordingly.
        O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.



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                              __________________
       Jonathan E. Coughlan, Disciplinary Counsel, and Heather H. Coglianese,
Assistant Disciplinary Counsel, for relator.
       Mazanec, Raskin, Ryder & Keller Co., L.P.A., Todd M. Raskin, and
Shawn A. Romer, for respondent.
                            ______________________




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