Tuesday, Sept. 15, 2015
Federal National Mortgage Association v. Rebekah R. Radatz, Case no. 2014-1126
Eighth District Court of Appeals (Cuyahoga County)
Lowell W. Thompson v. State of Ohio, Case no. 2014-1230
Twelfth District Court of Appeals (Madison County)
Teddy L. Wheeler [Erica Snodgrass], Auditor of Pike County, Ohio, (et al.) v. Joseph W. Testa, Tax Commissioner of Ohio, (et al.), Case no. 2014-1362
Ohio Board of Tax Appeals
Columbus Bar Association v. Joseph D. Reed, Case no. 2015-0587
Franklin County
Did Ohio Courts Have Jurisdiction to Consider Class Action Against Fannie Mae?
Federal National Mortgage Association v. Rebekah R. Radatz, Case no. 2014-1126
Eighth District Court of Appeals (Cuyahoga County)
ISSUES:
- Are federal and state courts prohibited by federal law from jurisdiction to review or affect a cease-and-desist order issued by the Federal Housing Finance Agency (FHFA) in its role as regulator of the Federal National Mortgage Association (Fannie Mae)?
- Was FHFA’s order stating that an Ohio law, R.C. 5301.36, is “in the nature of a penalty” based on federal law consistent with the Ohio Supreme Court’s 2005 decision in Rosette v. Countrywide Home Loans, Inc.?
BACKGROUND:
Homeowner Rebekah Radatz filed a complaint against Fannie Mae in August 2003 after she had paid off her mortgage. Radatz claimed that the mortgage lender didn’t submit notice of her paid-off mortgage to the county recorder’s office within the 90-day time frame required in state law. The lawsuit in Cuyahoga County Common Pleas Court was a class action, on behalf of all other homeowners who had finished paying a Fannie Mae mortgage and where the lender didn’t file the mortgage payoff with the recorder within the allotted time. State law (R.C. 5301.36) allows each borrower to recover $250 in damages along with pursuing other legal remedies.
In 2008, Congress responded to the financial crisis and recession that led to a plummeting housing market by passing the Housing and Economic Recovery Act (HERA). The legislation created the Federal Housing Finance Agency (FHFA), which was given regulatory oversight over Fannie Mae and a similar lender, known as Freddie Mac. The agency was also appointed as conservator of the two lenders to manage their finances and try to rehabilitate the lenders.
Fannie Mae tried to move the case twice to federal district court, but the court both times concluded that no federal issue was involved and returned the case to the state courts.
FHFA Order
On March 9, 2013, FHFA ordered Fannie Mae to cease and desist from violating a federal law, 12 U.S.C. §4617(j)(4), which bars payments “in the nature of a fine or penalty” by “paying, for any reason, directly or indirectly, any fines or penalties imposed by any state mortgage satisfaction law … for noncompliance” or “paying, for any reason, directly or indirectly, any amount pursuant to Ohio Code 5301.36 or pursuant to any judgment in connection with the pending lawsuit styled Radatz v. Fed. Nat’l Mortgage Ass’n ….”
The agency has authority to issue cease-and-desist orders under section 4631 of the federal law. According to section 4635 of the law, “no court shall have jurisdiction to affect, by injunction or otherwise, the issuance or enforcement of any notice or order under section 4631 … of this title … or to review, modify, suspend, terminate, or set aside any such notice or order.”
Lender Requests Dismissal After Order Issued
Fannie Mae asked the trial court to dismiss Radatz’s case based on this federal restriction on the courts. The trial court agreed in July 2013, stating it didn’t have jurisdiction to consider the lawsuit. Radatz appealed to the Eighth District Court of Appeals, which reversed the decision. The appeals court determined that any damages awarded to Radatz and the class based on R.C. 5301.36 were allowed because they wouldn’t be “in the nature of a penalty or fine” in violation of federal law.
Fannie Mae appealed to the Ohio Supreme Court, which accepted the case.
Lender’s Arguments
Attorneys for Fannie Mae write in the brief to the court that “Congress unequivocally stated [in the federal law] its intention to withdraw jurisdiction from all federal and state courts to review, modify, or affect enforcement orders issued by FHFA in its capacity as Regulator ….” As a result, state courts don’t have jurisdiction to “review” or “affect” the FHFA order that prohibited payments in this case, they contend.
While a party, such as Fannie Mae, to this type of order may ask a court to review the order, they argue that third parties, such as Radatz, can’t request that a court examine the directive. In Fannie Mae’s view, any analysis of the case’s merits by a state court violates the federal prohibition against a “review,” and a court’s judgment in Radatz’s favor would “affect” the order. The attorneys dispute the Eighth District’s conclusion that the FHFA order allowed for the possibility of a judgment but limited the lender’s liability. Section 4635 clearly “deprives all courts – state and federal – of jurisdiction to review or interfere in any way with such Enforcement Orders,” they assert.
They maintain that R.C. 5301.36 imposes a penalty on the mortgage lender, and the penalties are punitive rather than remedial. A statute that compensates an injured party for an actual injury is remedial, while a law intended to punish an offender is punitive, they explain. R.C. 5301.36 permits borrowers to seek actual damages separately from a $250 sanction, they note. They argue the federal law prohibiting payments “in the nature of a fine or penalty” encompasses a damages statute such as R.C. 5301.36 because the sanction is punitive.
They add that the Ohio Supreme Court has ruled that whether payments are seen as compensation or as a penalty depends on whose perspective is taken. While the court determined that the legislature considered R.C. 5301.36 payments to be remedial, rather than punitive in Rosette v. Countrywide Home Loans, Inc. (2005), Fannie Mae’s attorneys contend that the ruling didn’t address whether the payments were “in the nature of penalties” based on federal law. Deciding that these payments to borrowers are “in the nature of penalties” is consistent with Ohio law, they conclude.
Homeowners’ Positions
Attorneys for Radatz and the class, numbered at more than 100,000 Ohio residents, counter that the Rosette court held R.C. 5301.36 damages aren’t penalties. They argue that section 4617 in the federal law doesn’t define the fines or penalties it bans. Instead, they claim, state and federal courts have developed their own tests to decide that issue, and nothing in the federal law prevents a court from making findings about the issue when the FHFA hasn’t.
They assert the FHFA order isn’t affected or changed unless the R.C. 5301.36 damages are determined to be penalties or fines, and the Eighth District concluded that the payment of damages were neither. Therefore the trial court’s judgment in the case was permitted, they maintain, because a court’s ruling in a matter is distinct from laws that might block payment after a judgment.
They also maintain that section 4617 exempts only the “agency,” FHFA, not Fannie Mae as the lender being regulated, from liability in the case.
When issuing an order, the FHFA’s director must serve notice, schedule a hearing, and decide in the hearing whether the order should be made, they point out. They contend that Fannie Mae wrote this order for the FHFA to avoid its own responsibility. Because of how the order came about, FHFA never gave the required nor made any findings in a hearing.
Given the homeowners’ view that the statutory damages in this case aren’t penalties, the attorneys contend the only purpose of the FHFA order must have been to punish Radatz and the class by blocking a ruling in their favor. They maintain this is evident by the FHFA not following its legal process for issuing orders, including notice and a hearing. Therefore Radatz and the class had a due process right to a hearing that never happened, they conclude.
Additional Briefs
An amicus curiae brief supporting Fannie Mae’s position has been submitted by the Federal Housing Finance Agency. The First Priority Title Agency has filed an amicus brief supporting Radatz and the class.
- Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the Federal National Mortgage Association (Fannie Mae): Richard Gurbst, 216.479.8500
Representing Rebekah R. Radatz: Patrick Perotti, 440.352.3391
Did Defendant Have Right to Appeal to Receive Credit for Jail Time?
Lowell W. Thompson v. State of Ohio, Case no. 2014-1230
Twelfth District Court of Appeals (Madison County)
ISSUE: Does an order denying a motion to correct jail-time credit affect a substantial right, and is it a final, appealable order?
BACKGROUND:
Lowell W. Thompson was held in the Franklin County jail while being investigated for state and federal charges. After 87 days, the federal charges were dropped, but a grand jury in Madison County indicted Thompson in July 2010 for multiple sexually oriented offenses. He was transferred to the Madison County jail where he stayed for more than 180 days until he entered a plea.
Thompson pled guilty to charges, and the court sentenced him to 25 years in prison. The court’s Jan. 11, 2011 entry gave him credit for the time he served in the Madison County jail but not for the 87 days he spent in Franklin County’s jail.
On Feb. 24, 2014, Thompson asked the trial court to correct the time he had already served to include the days in the Franklin County jail. The court denied the request, and Thompson appealed to the Twelfth District Court of Appeals. The appeals court agreed with the trial court. Thompson filed an appeal with the Ohio Supreme Court, which agreed to consider the dispute.
2012 Amendment
The legislature amended R.C. 2929.19 to allow defendants to file motions with courts after sentencing asking to correct jail-time credits noted in their sentences. Both sides state that before the legislative action there wasn’t a method for fixing mistakes in jail-time credits and that trial courts dismissed such claims as null, or invalid. The change to the law became effective on Sept. 28, 2012.
Defendant Claims He Had Right to Appeal
Attorneys for Thompson maintain that a final and appealable order, as defined in state law, includes “an order that affects a substantial right made in a special proceeding.” They contend that correcting an error in jail-time credit qualifies as a “special proceeding,” based on the definition in R.C. 2505.02(A)(2). And the Ohio Supreme Court has held a defendant has a constitutional right to credit for time spent in confinement before a case is resolved, they stress.
They add that two other Ohio appeals courts have specifically ruled that the denial of a motion based on the 2012 law is a final, appealable order, and other appellate districts have allowed appeals to adjust confinement credits. They conclude that Thompson’s right to equal protection under the law has been violated because he can be held only for the length of time for which he was sentenced.
State Maintains 2012 Law Doesn’t Apply to Thompson’s Sentence
Attorneys for the state from the Madison County Prosecutor’s Office agree that a “substantial right” includes receiving credit for time in confinement. They assert, though, that it’s unclear whether a motion made pursuant to the 2012 legislation qualifies as a special proceeding.
Even if the trial court’s denial of Thompson’s motion is a final, appealable order, they note that the statute took effect in September 2012. Yet Thompson was sentenced more than a year before that, on July 11, 2011. They contend the legislative changes can’t be applied retroactively. Instead, courts must follow the law at the time of Thompson’s sentence, and that law didn’t permit the type of request Thompson made to correct his confinement credit, they argue.
On June 22, 2015, the Madison County Prosecutor’s Office notified the Supreme Court that it was waiving the right to present its positions during oral arguments.
- Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Lowell W. Thompson from the Ohio Public Defender’s Office: Stephen Goldmeier, 614.466.5394
Representing the State of Ohio from the Madison County Prosecutor’s Office: Stephen Pronai, 740.852.2259
Can Uranium Enrichment Plant Seek $1.2 Million in Attorney Fees and Costs from Pike County Auditor?
Teddy L. Wheeler [Erica Snodgrass], Auditor of Pike County, Ohio, (et al.) v. Joseph W. Testa, Tax Commissioner of Ohio, (et al.), Case no. 2014-1362
Ohio Board of Tax Appeals
ISSUES:
- Did the Pike County auditor act in bad faith and with frivolous conduct when in 2010 he assessed the private operator of a federal government-owned uranium enrichment plant for personal property taxes owed for tax year 1993?
- Did the Board of Tax Appeals commit an error when it upheld the cancellation of the tax assessment, but ignored the operator’s request for a ruling of bad faith that would allow it to appeal to the Ohio Supreme Court for attorney fees?
- Did the Ohio tax commissioner and the Board of Tax Appeals wrongly determine that the U.S. Department of Energy, and not the private contractor, was the manufacturer of enriched uranium, which exempted the operator from payment of personal property tax?
BACKGROUND:
In 2010, Pike County Auditor Teddy L. Wheeler issued a personal property tax assessment against Lockheed Martin Energy Systems, Inc. (LMES), the operator of the U.S. Department of Energy’s Portsmouth Gaseous Diffusion Plant (PORTS) for tax year 1993. The assessment was for LMES’s use of property owned by the Department of Energy (DOE) to operate PORTS. The federal government used private contractors to operate the plant since it first opened in 1954, and with LMES and its predecessors, the management contracts clearly stated the government owned all the property in use and forbade the companies from using the equipment, materials, and machinery for private business.
In 1993, oversight of PORTS was transitioned from the DOE to the quasi-governmental United States Enrichment Corporation (USEC). With the takeover by USEC, which eventually became a private company, Wheeler questioned whether the circumstances of PORTS had changed because it was using government property to enrich uranium to sell to commercial power plants and not for national security purposes. Wheeler made several attempts between 1992 and 2010 to have state and federal officials reverse earlier opinions that the machinery and equipment used by LMES to enrich uranium could not be taxed. In 2010 he reviewed a letter from the Ohio Department of Taxation that suggested it could be taxed, and that there was no statute of limitations on taxing property that wasn’t previously reported by a taxpayer. He then deemed the PORTS personal property at tax value to be $7.5 million, and assessed $3.75 million in penalties and $11.9 million in interest for the 18 years between the time the tax was owed and the date he requested payment.
Wheeler established the 1993 assessment as a “test case” and proceeded to issue 44 more assessments dating from 1955 to 1999 seeking more than $1.3 billion in unpaid taxes. LMES objected by filing a petition for reassessment with Ohio Tax Commissioner Joseph Testa. Among its objections to the tax, LMES noted that the federal law establishing the plants permitted the federal government to enter into payments-in-lieu-of-taxes (PILOT) agreements, and for more than 50 years the federal government and Pike County had PILOT agreements. LMES noted that Wheeler was the county’s lead negotiator for several PILOT agreements including the one for tax years 1992 to 1997, in which the DOE agreed to pay Pike County $175,000. That agreement, along with the others, contained a clause that no additional real or personal property taxes would be sought from the DOE or its contractors.
In May 2012, Testa cancelled Wheeler’s assessment citing the PILOT as a contractual promise made by the county not to make any claims against LMES. LMES asked Testa to rule that Wheeler acted in bad faith for unilaterally assessing the charges after the Pike County commissioners had signed the PILOT agreement. Testa didn’t rule Wheeler acted in bad faith.
Both Wheeler and LMES appealed Testa’s decision to the state Board of Tax Appeals (BTA). In August 2014, the BTA ruled in LMES’s favor, but didn’t rule on its claim that the assessment was the result of bad faith and frivolous behavior by Wheeler, and that he should be sanctioned for it. The next day, LMES appealed the BTA decision to the Ohio Supreme Court. A month later, Wheeler appealed the decision to the Fourth District Court of Appeals claiming LMES’s appeal to the Supreme Court was invalid because the company received a complete victory from the BTA. The Fourth District disagreed, ruling the LMES could file an appeal, and in cases where a BTA decision is appealed to two different courts, the court that received it first has jurisdiction.
LMES Believes BTA Made an Error Not Sanctioning Wheeler
The Fourth District cited R.C. 5717.04, which expressly allows a party seeking a modification of a BTA ruling to appeal the decision. It also noted in order for LMES to appeal to the Supreme Court, it has to raise an issue that is an “error.” Citingthe Supreme Court’s 1990 Christian Church of Ohio v. Limbach decision, the Fourth District found that when the BTA doesn’t address additional legal theories raised in a case, a party, even if it’s the winner at the BTA, must appeal to the Supreme Court claiming an error or its arguments are waived for any future appeal.
Attorneys for LMES argue that since Wheeler issued the assessment 18 years after the tax year, and it’s the first and only of its kind in Ohio, the company spent more than $1.2 million contesting the case. They noted LMES ceased operations at the plant nearly 20 years ago, and the plant has been shut down for more than a decade. Gathering the records, researching the facts, and conducting videotaped depositions with former officials all added to the cost, which they contend were unnecessary because Wheeler had no right to issue the assessment.
“None of this expense, in both time and human terms, would have been necessary had Wheeler reasonably followed the law. None of this expense would have been necessary had Wheeler followed the directives of his superiors. And remarkably, none of this expense would have been necessary had Wheeler and Pike County simply abided by the promises that they have made in the PILOT agreements,” they asserted in the briefs.
LMES’s attorneys point out that the general rule in Ohio is attorney fees are not awarded to the prevailing party in a lawsuit unless the other party was found to be acting in bad faith. They argue precedent allows the government to be sued when it is deemed to have acted in bad faith. They claim Wheeler’s act of bad faith was “perfidy,” the act of someone who has committed to do one thing, but does the opposite. “In other words, it is a ruse,” the attorneys suggest. “Perfidy is universally acknowledged as a repugnant act, such as (for example), where one army attacks under color of a white flag of truce.”
They state at least seven reasons, including Wheeler acting in contradiction to two directives from the Ohio Attorney General and state tax department that are more than 50 years old indicating the government property could not be taxed, as evidence that he acted in bad faith.
Auditor Says Uniqueness of PORTS Makes Assessments Legitimate
Attorneys for Wheeler assert that the BTA and Testa wrongly concluded the DOE, and not its contractor LMES is a “manufacturer” of enriched uranium. They are asking the Supreme Court to label LMES as the manufacturer, and by doing so, make the federally owned property used by LMES taxable. Further, since LMES never listed the equipment as taxable property on state tax returns, there is no statute of limitations for the collection of unpaid taxes, they contend.
In addition to challenging the merits of the BTA decision, Wheeler also appeals the Fourth District’s decision, and the motion by LMES, to appeal to the Supreme Court. The attorneys argue that LMES won a total victory by the BTA when it nullified the assessment, and LMES cannot appeal the decision because it wasn’t aggrieved.
They propose that LMES is not harmed because its contracts require DOE to indemnify it from any taxes paid, state or local, as well as any litigation regarding taxes. “Thus, LMES is completely protected from losses associated with litigation or payment of personal property taxes to the taxing authorities in Pike County,” the attorneys contend in the briefs.
The attorneys note that in 1992 and 1993 all of the enriched uranium was manufactured for the DOE to sell to commercial power plants. And while the DOE had six employees at PORTS, LMES had more than 2,000 employees using the DOE-owned property to manufacturer uranium. Citing R.C. 5711.16, the attorneys claim the personal property of a manufacturer can be taxed when it’s used, and doesn’t necessarily need to be owned by the manufacturer for it to be liable.
They note that it was generally accepted in 1954, when the federal government acquired the 3,700 acres for PORTS, that it was a federal enclave, which protected it from state and local taxing authority jurisdiction. They argue Pike County officials were unaware that the property was not a federal enclave, and that in 1953, Congress repealed prior laws that specifically exempted activities of the Atomic Energy Commission (which later became DOE) from having its property taxed locally. As states began to challenge the idea that federal property was off limits to taxation, a 1958 U.S. Supreme Court decision allowed a Michigan tax to be levied. The Ohio Attorney General’s Office was asked to issue an advisory opinion based on the ruling and concluded Ohio’s personal property tax law was not similar to Michigan’s and federal property could not be taxed. The attorneys claim that while LMES relies on that opinion and a state tax directive to county auditors shortly after based on that opinion, it is not the law. They point to the 1965 Doraty Rambler Inc. v. Schneider case where the attorney general’s office argued the tax was similar to Michigan’s and federal government property could be taxed if used by a manufacturer.
In 1992, Wheeler attended a Nuclear Regulatory Commission meeting in Washington state and indicated he learned from local government representatives that they were able to use federal law to support taxing the personal property of DOE contractors. Wheeler’s attorneys argue for several years, Wheeler asked for state and federal advice on how to gain additional tax from LMES similar to what local governments in other states had received, and eventually received a copy of a 2010 letter from a state tax department official to a Lockheed Martin subsidiary indicating the personal property was taxable. The letter also indicated no statute of limitations was in place so he filed the assessment against LMES in 2010 based on values of the equipment provided to him by DOE.
In response to the argument that the auditor acted in bad faith by not abiding by the PILOT agreement, Wheeler’s attorneys suggest that the county commission at the time believed it had the authority to enter into the settlements on behalf of the county and local school districts, but that subsequent state legal opinions found it didn’t. The attorneys contend that this all amounts to Wheeler properly seeking back taxes that will be paid by the federal government, not LMES, and that the BTA made no error by not ruling on the company’s bad faith claims.
“The Auditor cannot be found to have acted in bad faith when he pursued taxation only after the Ohio Department of Taxation supported his position in writing and confirmed that it did not believe there was a statute of limitations prohibiting the assessment,” the attorneys write.
Tax Commissioner Stands by Ruling
Wheeler challenges Testa in a cross appeal. Testa’s attorneys claim in the brief that Wheeler acted in bad faith and his arguments contradict “long established and unmistakable legal principles.” They state that the PILOT agreement was clear, and Wheeler and the county bargained away its right to tax personal property in exchange for hundreds of thousands of dollars in DOE payments over the decades.
Time for Oral Arguments Adjusted
The parties have been granted additional time beyond the traditional 15 minutes per side to present oral arguments. The court has granted LMES 10 minutes to begin oral arguments with the right to reserve time for rebuttal. Testa is to follow and is granted 10 minutes, followed by Wheeler who received 20 minutes to argue.
- Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Lockheed Martin Energy Systems, Inc: Robert Tait, 614.464.6341
Representing former Pike County Auditor Teddy Wheeler: Kevin Shoemaker, 614.469.0100
Representing Tax Commissioner Joseph Testa from the Ohio Attorney General’s Office: Melissa Baldwin, 614.466.4526
Attorney Discipline
Columbus Bar Association v. Joseph D. Reed, Case no. 2015-0587
Franklin County
A disciplinary complaint has been filed against Joseph D. Reed of Columbus for lack of diligence in handling three client matters and a failure to respond to various disciplinary inquiries. The Board of Professional Conduct recommends a two-year suspension with six months stayed if he meets certain conditions and payment of nearly $1,500 in restitution to former clients.
Lawyer Is Non-Responsive
In April 2012, Reed was hired to represent a woman in a divorce. During the next six months, he didn’t return calls from the client, gave her no updates about the case, and never filed the divorce action. Reed owes the client a refund of $375, which she paid for half of a retainer.
The woman filed a grievance against Reed with the Supreme Court’s Office of Disciplinary Counsel. Reed didn’t respond to the disciplinary counsel’s inquiries and didn’t appear at a March 2013 hearing after receiving a subpoena. The Columbus Bar Association also had received grievances about Reed, so the disciplinary counsel transferred the case to the local bar association.
After paying Reed $5,000, another client questioned whether the full amount had been earned by the attorney during his representation. The bar association’s fee arbitration committee determined that Reed owed the client $1,125 within 10 days of notice. Eight months later, Reed still hadn’t paid. The client had to hire an attorney to get most of the money back, but is still owed about $115.
In the third case, Reed was paid $1,000 in January 2013 to file a request for judicial release for a London Correctional Institution prisoner. After six or seven months without response, the prisoner’s father demanded the return of the retainer, and a new attorney confirmed that no motion had been filed for the prisoner. At the time of its report, the professional conduct board stated that Reed hadn’t returned any of the $1,000 retainer nor had he responded to the bar association’s inquiries about the issue or orders for arbitration.
Professional Conduct Board’s Determination
The board concluded that Reed violated several professional conduct rules, some of them multiple times. The misconduct reflected negatively on Reed’s fitness to practice law in all three cases because he ignored the fee resolution and disciplinary processes, the board explained. Noting Reed’s earlier suspension in 2000, the board stated in its report that Reed has a history of incompetent representation and that he jeopardizes the public by his actions.
The board recommends that Reed’s six-month stay be contingent on his completion of a contract with the Ohio Lawyers Assistance Program and his payment of all money owed to his former clients.
Lawyer’s Objections
Reed, who is representing himself, disputes two aggravating factors found by the board – that he acted with dishonest or selfish motive and that he didn’t cooperate in the disciplinary process. He explains that he had health issues in 2012 – a seizure in February and hip replacement surgery in August. Noting that he is a solo practitioner with 32 years in the field, he argues that he juggles a heavy workload and he unintentionally neglected these three clients, but without selfishness or dishonesty. He also maintains that he cooperated with discovery requests from the local bar association and attended a deposition.
While the board found no mitigating circumstances, Reed believes his cooperation with the disciplinary process, his health issues, and his lack of a dishonest or selfish motive together warrant a lesser sanction. He also asserts that his 2000 stayed suspension doesn’t qualify as a “history” of misconduct.
“The sanction recommended by the panel is too severe and inappropriate,” he wrote in the brief to the court. “A better sanction would be to have Respondent, under supervision, perform an unspecified number of pro bono representations. Even if done to the exclusion of being able to earn income, it would be better to utilize Respondent’s skills and abilities rather than deny the community of their availability.”
Bar Association’s Interpretation
Attorneys for the bar association describe Reed’s misconduct as a “pattern of professional nonchalance regarding fundamental ethical standards.” They point out that Reed previously admitted to the rule violations either in stipulations or answers to the association’s inquiries.
They also note that rules governing aggravating and mitigating factors don’t delve into a lawyer’s intent. They emphasize that specific rules instead require attorneys to withdraw from representation when they are impaired by a physical or mental condition and mandate the prompt refund of fees that haven’t been earned. Reed ignored these duties, they argue. They add that Reed submitted no evidence to support consideration of the health issues he mentioned.
“[Reed’s] claim that he has done more good than harm in the practice of law and, therefore, deserves a break should not be entertained,” they contend in the brief. “Ethical conduct is not, and should not be, likened to a baseball statistic counting balls and strikes. Harm to [s]ome clients is not counterbalanced by acceptable conduct with regard to others.”
- Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the Columbus Bar Association: Jeffrey Rogers, 614.525.3555
Joseph D. Reed, pro se: 614.769.2735
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