[Cite as Ohio State Bar Assn. v. Evans, 137 Ohio St.3d 441, 2013-Ohio-4992.]




                     OHIO STATE BAR ASSOCIATION v. EVANS.
[Cite as Ohio State Bar Assn. v. Evans, 137 Ohio St.3d 441, 2013-Ohio-4992.]
Judge misconduct—Violation of the Code of Judicial Conduct and the Rules for
        the Government of the Bar—One-year suspension, all stayed.
  (No. 2013-0231—Submitted March 13, 2013—Decided November 19, 2013.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                    Discipline of the Supreme Court, No. 12-059.
                                  ____________________
        Per Curiam.
        {¶ 1} Respondent, Judge David Dean Evans of Gallipolis, Ohio,
Attorney Registration No. 0002043, was admitted to the practice of law in Ohio in
1972.    He currently serves as judge of the general and domestic-relations
divisions of the Court of Common Pleas of Gallia County. Relator, Ohio State
Bar Association, charged Judge Evans with professional misconduct for failing to
disqualify himself from a case in which the judge had an admitted conflict with
defense counsel.
        {¶ 2} The       parties     submitted    a    consent-to-discipline    agreement
recommending that Judge Evans be publicly reprimanded.                     The Board of
Commissioners on Grievances and Discipline rejected the agreement and
remanded the matter for further proceedings before a three-member panel of the
board. On remand, the parties waived a hearing, submitted stipulations of fact
and misconduct, and jointly recommended a stayed six-month suspension. The
panel, and later the board, adopted the parties’ stipulations and recommended
sanction. No objections have been filed.
        {¶ 3} While “we ordinarily accept the panel’s and board’s conclusions as
to the propriety of an attorney’s conduct or the appropriate sanction, and to that
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extent, our decisions reflect deference to their expertise,” as the ultimate arbiter of
misconduct and sanctions in disciplinary cases, we remain free to exercise our
independent judgment. Disciplinary Counsel v. Kelly, 121 Ohio St.3d 39, 2009-
Ohio-317, 901 N.E.2d 798, ¶ 11. Given the judge’s serious ethical violations and
the significant harm caused by his misconduct, we impose a fully stayed one-year
suspension.
                                    Misconduct
       {¶ 4} The Gallia County public-defender commission, through a separate
public-defender corporation, employed Robert W. Bright to represent indigent
criminal defendants in the Gallia County Common Pleas Court. As the only judge
of the general division of that court, Judge Evans presided over all felony cases in
which Bright was appointed counsel.
       {¶ 5} In the matter that led to this disciplinary proceeding, Bright
represented a defendant who had initially agreed to enter into a plea agreement
but during the plea hearing had decided against it. Moments later, the defendant
changed his mind again, but at that point, Judge Evans refused to accept the plea.
Judge Evans again refused to accept the plea agreement three days later when
Bright and the county prosecutor jointly requested that the judge allow a plea
change.
       {¶ 6} Bright thereafter filed an 18-page motion requesting that Judge
Evans accept the plea agreement and characterizing the judge’s refusal to do so as
“an   abuse    of   discretion”   and    “unreasonable    and/or    arbitrary   and/or
unconscionable.”     Although irrelevant to the pending matter, Bright also
criticized, at length, some of Judge Evans’s other courtroom practices, such as the
judge’s alleged use of a “drop-dead date” for pleas. Judge Evans later described
Bright’s motion as “scathing” and showing Bright’s “bias toward and contempt
for the court,” and he sent a copy of the motion to disciplinary counsel.




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       {¶ 7} Judge Evans also issued an entry overruling Bright’s motion and
sua sponte removing Bright as counsel in the matter. The entry stated:


                  The Court finds that while Defense Counsel’s attitude
       toward the Court as expressed in the instant motion may not rise to
       the level of Professional Misconduct or to the level of being
       contemptuous, it certainly is not acceptable behavior. By such
       conduct he has created conflict with the Court whereby in this case
       or for that matter any other case in the future, when he does not
       agree with a decision or ruling by the Court, instead of being
       critical     by   accusation   of   being   arbitrary,   unreasonable,
       unconscionable or of abusing discretion, he simply may accuse the
       court of being bias [sic] or prejudice [sic] as it relates to him. The
       Court must not only avoid any impropriety, bias or prejudice but
       must avoid any appearance of such. The expressions and attitudes
       of Defense Counsel as exhibited and announced in the instant
       motion toward this Court compromises [sic] the Court’s ability to
       avoid any appearance of bias [or] prejudice, or to be fair and
       impartial as it relates to Defense Counsel regardless [of] how hard
       it tries or what strides it makes toward guaranteeing that there
       would be no bias, prejudice and that it would be fair and impartial.
                  The Court finds in this case due to the conflict Defense
       Counsel has created with this Court and to protect the rights of
       Defendant, that Defense Counsel, Robert W. Bright should be
       relieved of further responsibility for representation of Defendant
       and that substitute counsel should be appointed.




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       {¶ 8} Judge Evans next filed entries removing Bright as appointed
counsel in 63 other criminal cases—even though none of the defendants in any
case had requested Bright’s removal as their counsel. The entry in each case
stated that “Attorney Robert W. Bright is relieved of further obligation due to the
conflict he has created with the Court” and “due to the Court’s inquiry to the
Office of Disciplinary Counsel, Supreme Court of Ohio regarding Mr. Bright’s
conduct.”
       {¶ 9} Judge Evans’s actions removed Bright’s entire caseload, and
within a month of the judge’s entries, the Gallia County public defender
terminated Bright’s employment, reasoning that it had “no other options,” since
Bright could not practice in Judge Evans’s courtroom.          Disciplinary counsel
ultimately decided against filing any charges against Bright based on Judge
Evans’s grievance.
       {¶ 10} The parties stipulated, the board found, and we agree, that Judge
Evans’s conduct violated Jud.Cond.R. 2.11 (requiring a judge to disqualify
himself or herself in any proceeding in which the judge’s impartiality might
reasonably be questioned, including circumstances in which a judge has a
personal bias or prejudice concerning a party or a party’s counsel) and Gov.Bar R.
V(11)(E) (requiring that all proceedings and documents relating to the review and
investigation of grievances be private). Relator did not pursue Count III of its
complaint, and the board recommends dismissal of that charge. Accordingly,
Count III is hereby dismissed.
                                     Sanction
       {¶ 11} In determining the appropriate sanction for judicial misconduct, we
consider the ethical duties violated, the injury caused, the existence of aggravating
and mitigating circumstances listed in BCGD Proc.Reg. 10(B), and our precedent.
Disciplinary Counsel v. Campbell, 126 Ohio St.3d 150, 2010-Ohio-3265, 931
N.E.2d 558, ¶ 53, citing Disciplinary Counsel v. Sargeant, 118 Ohio St.3d 322,




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2008-Ohio-2330, 889 N.E.2d 96, ¶ 28, and Disciplinary Counsel v. Evans, 89
Ohio St.3d 497, 501, 733 N.E.2d 609 (2000).
                      1. Duties violated and injuries caused
       {¶ 12} “It is of utmost importance that the public have confidence in the
integrity and impartiality of the judiciary.” Disciplinary Counsel v. Allen, 79
Ohio St.3d 494, 495, 684 N.E.2d 31 (1997). For this reason, Jud.Cond.R. 2.11
requires that a judge disqualify himself or herself from a case in which he or she
has a personal bias or prejudice “concerning a party or a party’s lawyer” and also
from “any proceeding in which the judge’s impartiality might reasonably be
questioned.”
       {¶ 13} Here, in Judge Evans’s own words, Bright’s motion created a
“conflict” with the judge that “compromise[d] the Court’s ability to avoid any
appearance of bias [or] prejudice, or to be fair and impartial * * * regardless [of]
how hard it tries.”    The judge’s language indicates an actual personal bias
concerning Bright—or at the very least, the existence of an appearance of bias or
partiality. See, e.g., Wilson v. Commonwealth, 272 Va. 19, 28-30, 630 S.E.2d 326
(2006) (judge exhibited personal bias against an attorney by attempting to remove
him as attorney for the defendant and peremptorily removing the attorney from
the court-appointed-attorney list). Even if we concede that Bright’s motion was
inappropriate or disrespectful to Judge Evans, there is no dispute that Judge
Evans—not Bright—unilaterally declared that a conflict existed. Contrary to the
plain language of Jud.Cond.R. 2.11, Judge Evans cured the conflict by removing
Bright as counsel in 64 cases, rather than by disqualifying himself. And in further
violation of his ethical duties, Judge Evans, in his entries removing Bright,
implied that Bright was the subject of a disciplinary investigation, even though
disciplinary matters must be kept private and confidential until there has been a
finding of probable cause or certification of a complaint. Gov.Bar R. V(11)(E).




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In sum, the judge violated a fundamental principle of our judicial system and
showed disrespect for our attorney-discipline process.
       {¶ 14} Judge Evans’s actions erode the public confidence in the integrity
and impartiality of our judiciary. But his misconduct resulted in a more concrete
injury to Bright, who lost his job as a public defender and his privacy protections
under Gov.Bar R. V(11)(E). The judge’s misconduct also likely harmed Bright’s
clients, who did not request his removal as their counsel.
                      2. Aggravating and mitigating factors
       {¶ 15} The board found the existence of one aggravating factor: Judge
Evans engaged in multiple offenses by filing an entry in 63 pending cases
mentioning the possible disciplinary investigation into Bright’s conduct. See
BCGD Proc.Reg. 10(B)(1)(d). As an additional aggravating factor, we find that
Judge Evans’s misconduct caused harm to Bright and his clients. See BCGD
Proc.Reg. 10(B)(1)(h) (vulnerability of and resulting harm to victims of
misconduct).
       {¶ 16} In mitigation, the board found (1) an absence of a prior disciplinary
record, (2) an absence of a dishonest or selfish motive, (3) full and free disclosure
to the disciplinary board and a cooperative attitude toward the proceedings, and
(4) good character and reputation. See BCGD Proc.Reg. 10(B)(2)(a), (b), (d), and
(e). As to the fourth factor, the parties stipulated that Judge Evans’s character and
reputation “demonstrate his commitment to the judicial system and the citizens he
serves,” but the record lacks any additional evidence supporting this stipulation.
While we have no reason to doubt Judge Evans’s excellent reputation in his
community, we give somewhat less weight to this factor without more evidence to
support it. Compare Disciplinary Counsel v. Elum, 133 Ohio St.3d 500, 2012-
Ohio-4700, 979 N.E.2d 289, ¶ 23 (the judge, in a fully stipulated case, submitted
many letters of reference attesting to his commitment to his community).




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                              3. Applicable precedent
       {¶ 17} Neither the board nor the parties have cited any precedent
supporting their recommendation of a stayed six-month suspension. We find the
following judicial- and magistrate-discipline opinions instructive: Disciplinary
Counsel v. Gaul, 127 Ohio St.3d 16, 2010-Ohio-4831, 936 N.E.2d 28 (stayed six-
month suspension for a judge’s making highly prejudicial and unnecessary
remarks against a defendant and getting the media involved in a case by advising
the media that he was going to issue an Amber Alert to locate a witness even
though he knew he probably did not have the authority to issue such an alert);
Elum (stayed six-month suspension for the judge’s undignified and discourteous
manner toward litigants, unnecessary involvement in a police-department
administrative investigation, and failure to act impartially in and to disqualify
himself from a proceeding involving the police department with which the judge
had a history of conflict); Disciplinary Counsel v. McCormack, 133 Ohio St.3d
192, 2012-Ohio-4309, 977 N.E.2d 598 (stayed one-year suspension for a
magistrate’s pattern of misconduct in a single case, including acting in a
discourteous and undignified manner, treating litigants with disdain, terminating
hearings before the parties had presented all their evidence, and failing to timely
resolve the matter); and Disciplinary Counsel v. Campbell, 126 Ohio St.3d 150,
2010-Ohio-3265, 931 N.E.2d 558, ¶ 53 (one-year suspension with six months
stayed for a judge’s multiple and repeated ethical violations in several matters,
including conducting an improper investigation of a defendant, using undignified
language toward counsel, failing to appoint counsel for an indigent defendant,
making improper remarks from the bench about county commissioners, using his
position as a judge to obtain access to a prosecutor’s file, and improperly placing
a defendant in a holding cell).
       {¶ 18} Judge Evans’s misconduct is comparable to the judicial
misconduct in Gaul and Elum, in which both judges received stayed six-month



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suspensions. However, a significant aggravating factor is present here that was
absent in those cases: i.e., harm to the victims. Indeed, in Gaul, the board found
that the victim of the judge’s misconduct “suffered no actual prejudice.” Gaul,
¶ 75. See also Elum, ¶ 23 (harm to victim was not listed as an aggravating factor).
However, that aggravating factor was present and considered in McCormack, in
which an attorney received a stayed one-year suspension for his misconduct while
serving as a magistrate. McCormack, ¶ 19 (the magistrate’s misconduct “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”). On the other hand, Judge Evans’s misconduct does not rise to the
level of that of Judge Campbell—either in the number of rule violations or the
persistency of the misconduct—who received a one-year suspension with six
months stayed. Therefore, a lesser sanction than was imposed in Campbell is
justified here.
        {¶ 19} Accordingly, we find that the midrange sanction is proper. We
have previously imposed sanctions harsher than that recommended by the board
because of the harm caused by a judge’s misconduct. See, e.g., Disciplinary
Counsel v. Russo, 124 Ohio St.3d 437, 2010-Ohio-605, 923 N.E.2d 144, ¶ 31
(rejecting the recommended sanction of a stayed six-month suspension and
imposing a stayed one-year suspension because “a sanction more rigorous than
the board’s recommendation is required for the harm caused by respondent’s
improprieties”).
                                   Conclusion
        {¶ 20} Judges are subject to the highest standards of ethical conduct.
Russo, ¶ 13, citing Mahoning Cty. Bar Assn. v. Franko, 168 Ohio St. 17, 23, 151
N.E.2d 17 (1958).     Given Judge Evans’s serious ethical violations and the
significant harm caused by his misconduct, and having considered the aggravating
and mitigating factors and sanctions imposed for comparable conduct, we




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conclude that a stayed six-month suspension, as recommended by the board, is too
lenient and that a stayed one-year suspension is more appropriate. Accordingly,
Judge David Dean Evans is hereby suspended from the practice of law in Ohio for
one year, with the entire suspension stayed on the condition that he commit no
misconduct during the suspension. If Judge Evans fails to meet this condition, the
stay will be lifted and Judge Evans will serve the entire one-year suspension.
Costs are taxed to Judge Evans.
                                                            Judgment accordingly.
          O’CONNOR, C.J., and LANZINGER, KENNEDY, FRENCH, and O’NEILL, JJ.,
concur.
          PFEIFER, J., dissents with opinion.
          O’DONNELL, J., dissents and would impose a six-month suspension,
stayed, as recommended by the board.
                                ____________________
          PFEIFER, J., dissenting.
          {¶ 21} Judges in smaller counties encounter problems that those in larger
counties are able to address rather easily. When a judge in a large county has an
irreconcilable conflict with an attorney, that attorney’s cases can be assigned to
another judge. In smaller counties, especially those like Gallia County that have
only one judge in the general division of the court, that simple resolution is not
possible.
          {¶ 22} Judge David Evans, upon concluding that he and attorney Robert
Bright had an untenable working relationship, filed entries removing Bright from
all cases in which Bright had been appointed as counsel. In my opinion, that was
a reasonable reaction to the problem that he confronted. It was better than having
visiting judges assigned to a host of routine cases, better than having an
antagonistic relationship between a judge and a public defender. Better still




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would have been an amicable reconciliation; but the record suggests that that was
not possible.
       {¶ 23} In the circumstances before us, it is more sensible for the attorney
to give way than the judge. Judge Evans was elected by the people of Gallia
County to serve as their sole judge; however highly skilled, attorney Bright is an
at-will employee. Surely, when an irreconcilable conflict prevents them from
working on cases, the elected judge should supersede the at-will employee.
       {¶ 24} This case is not like the cases to which this court compares it. In
Disciplinary Counsel v. Gaul, 127 Ohio St.3d 16, 2010-Ohio-4831, 936 N.E.2d
28, the judge made prejudicial and unnecessary comments against a defendant and
informed the media that he was going to issue an Amber Alert for a missing
witness when he knew that he probably did not have the authority to issue that
alert. In Disciplinary Counsel v. Elum, 133 Ohio St.3d 500, 2012-Ohio-4700, 979
N.E.2d 289, the judge treated litigants discourteously and unnecessarily involved
himself in an administrative investigation into a police officer’s conduct. In
Disciplinary Counsel v. McCormack, 133 Ohio St.3d 192, 2012-Ohio-4309, 977
N.E.2d 598, the magistrate terminated hearings before all the evidence was
presented and failed to timely resolve the matter before him. In Disciplinary
Counsel v. Campbell, 126 Ohio St.3d 150, 2010-Ohio-3265, 931 N.E.2d 558, the
judge failed to appoint counsel for an indigent defendant, used his position as a
judge to obtain access to a prosecutor’s file, and improperly placed a defendant in
a holding cell. Judge Evans did none of these things. He merely concluded that
he and attorney Bright could not work together and then took steps to ensure that
that fact didn’t result in his appearing to handle cases with prejudice.
       {¶ 25} The parties submitted a consent-to-discipline agreement that
recommended that Judge Evans be publicly reprimanded. That is an appropriate
sanction. Because this court issues a suspension, I dissent.
                              ____________________




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       Eugene P. Whetzel; Nolan, Sprowl & Smith and Edward M. Smith; and
Jason M. Dolin, for relator.
       Montgomery, Rennie & Jonson, George D. Jonson, and Lisa M. Zaring,
for respondent.
                          ________________________




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