Summary
In Bar Assn. of Greater Cleveland v. Milano (1984), 9 Ohio St.3d 86, 88, 8 OBR 315, 317, 459 N.E.2d 496, 498, we quoted from EC 7-36: "`Judicial hearings ought to be conducted through dignified and orderly procedures designed to protect the rights of all parties. Although a lawyer has the duty to represent his client zealously, he should not engage in any conduct that offends the dignity and decorum of proceedings.'"
Summary of this case from Disciplinary Counsel v. DonnellOpinion
No. 83-37
Decided January 25, 1984.
Attorneys at law — Misconduct — One-year suspension — Engagement in undignified or discourteous conduct degrading to court — DR 7-106(C).
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Bar.
The relator, the Bar Association of Greater Cleveland, instituted this disciplinary proceeding by filing a complaint with the Board of Commissioners on Grievances and Discipline ("board") charging respondent, Jerry Milano, with violations of DR 1-102(A)(4), DR 1-102(A)(6), DR 7-102(A)(5) and DR 7-106(C)(6) of the Code of Professional Responsibility. Respondent answered and denied that his conduct constituted a violation of the foregoing Disciplinary Rules.
A hearing was conducted before a three-member panel of the board on August 12, 1983. The panel concluded that respondent's conduct did not violate DR 1-102(A)(4), DR 1-102(A)(5), or DR 1-102(A)(6), but that respondent did violate DR 7-106(C) which provides in part:
"In appearing in his professional capacity before a tribunal, a lawyer shall not * * * (6) [e]ngage in undignified or discourteous conduct which is degrading to a tribunal."
The circumstances surrounding the board's finding are as follows. In 1981, respondent served as co-counsel for one Orlando Morales in Morales' trial on charges of aggravated murder, felonious sexual penetration, and kidnapping. Morales' trial lasted two weeks and was subjected to heightened media and public attention due, at least in part, to the fact that the victim was a fourteen year old girl and that the trial was televised.
Relator's complaint alleges that, over the course of the trial, respondent made several intemperate comments directed toward the trial court. Respondent admits uttering the following statements.
After the jury returned its guilty verdict, the following exchange took place between respondent and the trial court:
"MR. JERRY MILANO: I want to say a little more before you start with your show for your television.
"THE COURT: My show?
"MR. JERRY MILANO: Your show.
"THE COURT: You are now guilty of contempt.
"MR. JERRY MILANO: Do what you have to do.
At the hearing before the panel, a videotape from a Cleveland television station was admitted containing this discussion. This tape reveals that respondent's remarks were made heatedly and in a raised voice. Respondent received a $2,000 fine and a suspended jail term for being in contempt. Respondent did subsequently publicly apologize for his conduct.
The record further discloses that when the trial judge and jury left the courtroom after Morales had been sentenced, respondent read a statement into the record. In this statement respondent claimed that the trial judge "stole the case" and prevented another attorney from being appointed to represent Morales. Regarding the televising of the trial, respondent stated as follows:
"He [the trial judge] then called me in and said that, `I'm going to televise the entire case,' and I said, `Judge, please don't do that. I think it's so unfair to the jurors and the witnesses and whatever we defense lawyers think, it's unfair,' whatever reason we raised, and he said `I'm going to televise it,' and I said, `What the fuck did you ask me for?'"
Respondent also suggested that the trial judge was anxious to finish the case in order to go on vacation.
Respondent further alleged in this statement that the trial judge, during jury deliberations, had learned of the status of the deliberations through his bailiff. Respondent stated:
"Now, the Judge got this information for [ sic] somewhere. He seemed to take some exception and refused to allow the defense to put that in the record at which time I said, `Go and fuck yourself. It's going into the record.'"
Respondent continued with his statement and made another remark concerning the trial judge:
"We asked the Court to please refer the man [Morales] to probation to see how to sentence him, and he, in all his wisdom and political ambition — at least in my opinion. I say that respectfully to the Court, but not to Judge — well, I say it in all respect to the Court. Perhaps he has no political ambition. Couldn't wait to sentence the defendant while the television cameras were here."
Respondent concluded by stating:
"Again, we objected, and with that, fuck this system."
The panel recommended that respondent receive a public reprimand. The board of commissioners adopted the findings of fact, conclusions, and recommendation of the hearing panel.
Mr. Bernard J. Stuplinski, Mr. Robert D. Archibald and Mr. Thomas D. McDonald, for relator.
Mr. Stewart I. Mandel and Mr. Jerome F. Weiss, for respondent.
Respondent argues that these remarks were made over the course of a bitterly disputed murder trial in which respondent was convinced of his client's innocence and merely zealously representing his client. We cannot accept respondent's argument. As it is stated in EC 7-36 of the Code of Professional Responsibility:
"Judicial hearings ought to be conducted through dignified and orderly procedures designed to protect the rights of all parties. Although a lawyer has the duty to represent his client zealously, he should not engage in any conduct that offends the dignity and decorum of proceedings. While maintaining his independence, a lawyer should be respectful, courteous, and aboveboard in his relationship with a judge or hearing officer before whom he appears. * * *"
In contrast to the above standard, the statement which respondent placed on the record in the Morales case was disrespectful, discourteous, and a serious breach of courtroom decorum. We concur with the board that respondent did violate DR 7-106(C). There is no doubt that the zealous representation of a client is possible while maintaining and preserving the dignity of the courtroom and remaining courteous to the tribunal.
Respondent testified before the panel that:
"There is no place in any justice system for a lawyer to say in a courtroom `Fuck the system.' There is no place for it. I never had occasion to do it. I can't excuse it. I can only try to explain what happened, why it happened."
In Bar Assn. v. Carlin (1981), 67 Ohio St.2d 311 [21 O.O.3d 195], this court imposed a one-year suspension for violation of DR 7-106(C)(6) after the board had recommended a public reprimand. In Carlin, supra, we quoted the following passage from State v. Wilson (1972), 30 Ohio St.2d 312, 314-315 [59 O.O. 2d 379]:
"`* * * No amount of provocation on the part of the judge can be permitted to excuse counsel from the obligation of his oath of office ("I will maintain the respect due to courts of justice and judicial officers"); to excuse him from his duties imposed by the Code of Professional Responsibility; or to condone the acts of counsel if in fact they are themselves contemptuous.'" Id. at 313.
Thus, the focus of this inquiry is whether respondent's actions, standing alone, warrant disciplinary action. It is of no consequence that the trial court may have committed legal errors which, in respondent's view, caused his client to be found guilty. Respondent has practiced law for over a quarter of a century and should be well aware of the avenues available to review the conduct of the trial judge. The actions of respondent are inexcusable and will not be tolerated by this court. Notwithstanding the board's recommendation, it is our judgment that respondent be suspended from the practice of law for a period of one year pursuant to Gov. Bar R. V(6)(C).
Judgment accordingly.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and J.P. CELEBREZZE, JJ., concur.