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May 1 — A lawyer's remarks to a newspaper reporter about not getting notice of a court hearing didn't violate the ethics rule against discourteous conduct that is degrading to a tribunal, the Ohio Supreme Court decided April 29.
The lawyer's comments “were not highly likely to obstruct or prejudice the administration of justice,” the court said in a per curiam opinion.
A journalist from the Akron Beacon Journal interviewed attorney Larry D. Shenise after learning that one of his clients was arrested for not showing up at a contempt hearing.
The journalist reported that Shenise made comments to the effect that
• no one had advised him or his client of the judge's show-cause order;
• no one from the court notified Shenise by mail or phone of the contempt hearing; and
• the court did not send him notice of the arrest warrants.
The reporter quoted Shenise as having said “If we would have known, we would have been there. But they never bothered to say ‘Hey, you're supposed to be here for a hearing. We're going to issue warrants for your clients if you don't appear,'” and “They didn't do anything. I would have thought the court would have the courtesy to say ‘Hey, you're supposed to be here.'”
Shenise admitted making the statements attributed to him, except he denied telling the reporter that the judge failed to notify him of the hearing.
The disciplinary board found that the comments were degrading to the judge and his staff because they implied that the judge acted impetuously and in a heavy-handed manner in dealing with Shenise's 80-year-old client. It concluded that in making the comments Shenise violated Rule 3.5(a)(6) of the Ohio Rules of Professional Conduct, which forbids lawyers to “engage in undignified or discourteous conduct that is degrading to a tribunal.”
The court rejected that finding and dismissed the charge that Shenise ran afoul of Rule 3.5(a)(6).
In doing so, the court drew on Disciplinary Counsel v. Gardner, 793 N.E.2d 425, 19 Law. Man. Prof. Conduct 489 (Ohio 2003), which said that although attorneys may be subject to ethics restrictions on speech beyond those placed on an ordinary citizen, an attorney's speech may be sanctioned only if it is “highly likely to obstruct or prejudice the administration of justice.”
Gardner derived those principles from Gentile v. Nev. State Bar, 501 U.S. 1030 (1991), the court noted.
Here, the court stated, “Shenise's comments are little more than a statement that he did not receive notice of a hearing by mail or telephone and that if he had received such notice, he would have appeared.”
“On these facts, we cannot find that Shenise's statements to the Akron Beacon Journal reporter were highly likely to obstruct or prejudice the administration of justice,” the court said.
The court agreed with the board that Shenise neglected the clients in that matter, failed to communicate with them and did not provide competent representation. However, it decided to give him a public reprimand for these infractions rather than the two-year stayed suspension the board recommended.
Chief Justice Maureen O'Connor and Justice Judith Ann Lanzinger dissented, saying they would impose a two-year stayed suspension.
Roderick, Linton, Belfance LLP and Gibson & Lowry LLC represented the Akron Bar Association. Larry D. Shenise, Tallmadge, Ohio, represented himself.
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