Wednesday, March 22, 2023
State ex rel. Fair Housing Opportunities of Northwest Ohio v. the Ohio FAIR Plan, Case No. 2022-0244
Tenth District Court of Appeals (Franklin County)
State of Ohio v. Michael Swazey Jr., Case No. 2022-0382
Ninth District Court of Appeals (Medina County)
Hanneman Family Funeral Home and Crematorium v. Patrick Orians et al., Case No. 2022-0573
Third District Court of Appeals (Allen County)
State of Ohio v. Adrienne Jordan and State of Ohio v. Sashia Johnson, Case Nos. 2022-0733 and 2022-0734
Fourth District Court of Appeals (Scioto County)
Must State-Created Property Insurance Program Comply With Public Records Requests?
State ex rel. Fair Housing Opportunities of Northwest Ohio v. the Ohio FAIR Plan, Case No. 2022-0244
Tenth District Court of Appeals (Franklin County)
ISSUES:
- Is the Ohio FAIR Plan, a state-created association to provide basic property insurance, subject to the Ohio Public Records Act?
- Because the Ohio FAIR plan was established by the General Assembly through statute, is the association considered a state agency subject to the public records law?
- Is a requestor of records that were denied by the Ohio FAIR plan entitled to damages and attorney fees?
BACKGROUND:
Urban riots in the 1960s throughout the United States caused millions of dollars in private property damage. Private insurance companies were hesitant to provide insurance coverage to urban businesses and homeowners. In 1968, Congress enacted the Urban Property Insurance Protection and Reinsurance Act to address the availability of property insurance in urban areas. States were encouraged to adopt Fair Access to Insurance Requirements (FAIR) plans.
Ohio established a FAIR plan in 1968 by passing laws that are now R.C. 3929.41 to R.C. 3939.49. The plan requires all insurers licensed to transact property insurance business in the state to be members of the plan, which acts as a joint underwriting association. The Ohio plan sells insurance to private homeowners and businesses who are unable to qualify for affordable insurance sold by private companies.
In April 2020, the Fair Housing Center, operated by Fair Housing Opportunities of Northwest Ohio, submitted a public records request to the Ohio FAIR plan, asking for its underwriting standards and any records explaining its underwriting criteria. The center also requested records about all the applicants that the plan insured or rejected since 2015 and the amount of insurance it provided to those who sought or received FAIR plan coverage. The public record request was denied, stating it is not a public office subject to R.C. 149.43, the Ohio Public Records Act. When the Fair Housing Center asked for an explanation of the denial, the FAIR plan stated that R.C. 101.82, which sets the definitions for state agencies that are subject to inspection by the Sunset Review Committee, explicitly excluded the Ohio FAIR plan.
In July 2020, the Fair Housing Center sought a writ of mandamus from the Tenth District Court of Appeals directing the Ohio FAIR plan to comply with the public records request. The Tenth District agreed with the center and ordered the plan to provide the records. The center requested that the plan pay damages and attorney fees, but the Tenth District denied the payments.
The plan appealed the decision to the Supreme Court of Ohio, which agreed to hear the case. The Fair Housing Center appealed the denial of damages and attorney fees – which the Supreme Court also agreed to review.
Association Not a Public Agency, FAIR Plan Argues
The Ohio FAIR plan argues that the Tenth District placed too much reliance on the creation of the organization by statute, and maintains that because it was established by law doesn’t necessarily make it a state agency subject to the public records law. The purpose of the FAIR plan is to address under-insurance in inner cities and to discourage practices that prevent owners of urban properties from obtaining insurance, the plan states. That isn’t a traditional government service, the plan asserts. The FAIR plan operates like a private insurance company selling policies to private individuals, the plan notes, and it shouldn’t be treated as a government agency.
The plan also notes the laws governing the Sunset Review Committee, which is charged with regularly evaluating whether state offices should remain in operation, were amended in 1997 to exclude the plan. The plan asserts this step expressed the legislature's clear intent that it wasn’t a public office.
In addition, the plan notes the Supreme Court adopted a “functional-equivalency test” in its 2006 State ex rel. Oriana House, Inc. v. Montgomery decision to determine whether an entity is a public office for purposes of the Public Records Act. Under the test, a court must consider four factors: whether the entity performs a governmental function; the level of government funding; the extent of government involvement or regulation; and whether the entity was created by the government to avoid the requirements of the Public Records Act.
The plan argues that none of the factors indicate its records are public. The plan points to previous Supreme Court decisions that have held that providing insurance isn’t a historical government function. The plan notes it performs the same function as a private insurance company, but serving only those who demonstrate they can’t receive affordable coverage from private insurers.
The FAIR plan explains that it receives no government funding, and its funding is provided by the private insurers that are members of the plan. Its day-to-day operations have little government involvement or regulation. The plan is operated by a board of directors, of which 75% are representatives of private insurance companies. The remaining members are appointed by the governor.
The Ohio FAIR plan has no state employees, and its employees aren’t members of any of the state employee retirement plans, it notes. The only state oversight of the plan is that it submits its operational guidelines to the Ohio superintendent of insurance, but that requirement also applies to private insurers, it explains. Also, nothing in the establishment of the plan indicates it was created to avoid compliance with the Public Records Act, the plain maintains. Because all the factors point toward the plan as not being a public office, it doesn’t have to comply with the public records law, it concludes.
Lawmakers Created Public Agency, Housing Advocate Asserts
The Fair Housing Center maintains the laws creating the plan expressed that its role is to fulfill a public purpose and its goal was for the public good -- all indications that it is a public office. The center says the fact the plan was excluded from sunset review under R.C. 101.82 has no impact on its public records responsibilities under a completely different statute, R.C. 149.43. The plan argues it was exempted from the definition of “agency” because its board members weren’t appointed. The center counters that R.C. 149.011 defines “state agencies” for the purpose of the public records law and covers a broad range of public offices that have both appointed and non-appointed leadership. The plan meets the definition of the public office under the public records law, and the center notes other agencies exempt from the definition of “agency” in the sunset review law are clearly public offices under the public records law.
The plan acts as a public office and not as a private insurer, the center also argues. The plan’s relationship to the insurance superintendent is greater than private insurers, the center maintains. The plan’s operation is established through regulations and adoption of those regulations follow the process of most state agencies under R.C. Chapter 119, the center notes. Any of the plan’s decisions that are appealed go through an administrative process where the appeal goes to the insurance superintendent and then to a court. The insurance superintendent determines the urban areas where the plan will issue policies, the center notes, and determines what basic policies the FAIR plan will provide. If the plan is losing money, its board of directors holds a governmental power to forcibly assess private insurance companies to fund the operations, which makes the plan a governmental agency and not a private market insurance provider, the center contends.
The FAIR plan by its creation by the legislature and powers granted to it, makes it an entity that falls within the definition of a “public office” that must comply with public records laws, the center maintains. Because the plan meets that definition, the functional equivalency test cited by the plan isn’t applicable, the center concludes.
Parties Debate Damages Award
The center argues the Tenth District used the wrong standard to deny damages and attorney fees. The appeals court reasoned that the plan was “prompt and cooperative” in their denial of the records request, and since this was the first time the court heard a dispute regarding the plan’s records, the association had a reasonable belief that it could deny the request. The center maintains the plan wasn’t cooperative and that being a “matter of first impression” before a court is a factor in determining the award, but not a reason to deny compensation. The center maintains the plan must still prove its reasoning was grounded in the law. The center asserts that the public records law clearly indicated the plan needed to comply, and its reasoning for denial was unjustified.
The plan counters that it reasonably believes it didn’t have to comply with the records law and has never before been required to respond to a public records request. The association asserts it responded in a prompt and cooperative nature, so no damages or attorney fees should be awarded.
Friend-of-the-Court Brief Submitted
An amicus curiae brief supporting the Fair Housing Center’s position was submitted jointly by Advocates for Basic Legal Equality Inc., Community Legal Aid Services Inc., Legal Aid Society of Cleveland, Legal Aid Society of Columbus, Legal Aid Society of Southwest Ohio, Legal Aid of Western Ohio, and Southeastern Ohio Legal Services.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the Ohio FAIR Plan: Larry James, ljames@cbjlawyers.com
Representing Fair Housing Opportunities of Northwest Ohio: George Thomas, gthomas@toledofhc.org
Can Challenge to Revised Child Support Nonpayment Law Occur Before Trial?
State of Ohio v. Michael Swazey Jr., Case No. 2022-0382
Ninth District Court of Appeals (Medina County)
ISSUES:
- When ruling on a motion to dismiss an indictment, is the trial court limited to only the information in the indictment to determine if the indictment is legally defective?
- Can a defendant appeal a conviction if the defendant pleads guilty to a charge, then on appeal claims a statute used for the conviction is unconstitutional?
BACKGROUND:
In 2019, Michael Swazey Jr. was indicted by a Medina County grand jury on three counts of nonsupport of a dependent. The indictment listed three time periods for which Swazey failed to pay, the first being between November 2013 to October 2015. The other two periods were between 2015 and 2019.
Swazey pleaded not guilty to the charges. He then filed a motion to dismiss the indictment. Swazey attached to his motion a certified copy of a child support termination order from the Medina County Domestic Relations Court. The order stated that his support requirement ended in July 2014 when his child turned 18 years old. Swazey maintained the charges levied against him weren’t for child support he currently owed, but for arrearages. He argued that at the time of his indictment, R.C. 2919.21, the felony charge for nonsupport, applied only to those who failed to pay support orders in effect, not for arrearages. R.C. 2929.21 was amended in early 2019 to include charging those who also had arrearages.
He stated the Medina County Prosecutor’s Office was attempting to retroactively apply the amended law to him, which violated his constitutional rights. He also argued that if the law applied retroactively, then the statute violated the ex post facto clauses of both the U.S. and Ohio constitutions, which prohibit attempting to punish conduct that was legal at the time it occurred.
The prosecutor’s office argued that the trial court couldn’t consider Swazey’s motion to dismiss the indictment prior to trial. The office maintained that the motion could only be considered if the trial court could determine from “the four corners of the indictment” if Swazey’s argument was valid. The prosecutor maintained that Swazey’s position could only be assessed after evidence was introduced, and that Swazey could raise his argument in a motion for acquittal at the close of the trial. The trial court agreed with the prosecutor and denied Swazey’s motion to dismiss the indictment.
Swazey then pleaded guilty to the charges. He was sentenced to 180 days in jail and two years of community control. Swazey appealed his conviction to the Ninth District Court of Appeals, which reversed the trial court’s decision and directed it to consider his motion to dismiss the indictment.
The prosecutor appealed the Ninth District’s decision to the Supreme Court of Ohio, which agreed to hear the case.
Case Can’t Be Decided at Pretrial Stage, Prosecutor Asserts
The prosecutor explains that under Ohio Rule of Criminal Procedure 12(C), a trial court can rule on any motion “that is capable of determination without the trial of the general issue.” When Swazey sought to dismiss the case prior to trial, the trial court determined that it needed more information than what was in the indictment to decide the merits of his argument. The prosecution maintains the key information that couldn’t be known from the indictment itself was whether Swazey was charged for not paying support he currently owed or if it was solely from arrearages. His attempt to introduce the 2014 court order terminating his support was evidence that was beyond the indictment, the prosecutor maintains, and that is evidence that must be introduced at trial. Because the issue of whether he violated R.C. 2919.21 couldn’t be determined from indictment itself, it was premature for the trial court to rule on his motion to dismiss, the office asserts.
Once the pretrial motion to dismiss was rejected, Swazey didn’t pursue a trial on the matter or follow the trial court’s directive that he could move for acquittal after the trial, the prosecutor notes. Instead, Swazey chose to plead guilty. Once he pleaded guilty, he couldn’t challenge the motion to dismiss on appeal, the prosecutor maintains.
The prosecutor argues the Ninth District misapplied a prior Supreme Court of Ohio decision to determine that the trial court could revisit the issue. Citing the Court’s 2004 State v. Fitzpatrick case, the Ninth District ruled that, in general, a defendant can’t appeal a conviction based on a guilty plea, but there are limited exceptions. One exception is if the defendant claims a violation of a constitutional right, the office notes. The Ninth District considered Swazey’s claim to be a challenge to a constitutional right when he was charged with a violation of R.C. 2919.21.
The prosecutor argues that Swazey’s argument isn’t that the new version of the law is unconstitutional, but rather that if the law was applied to his situation, it would be a constitutional violation. That isn’t a constitutional challenge, but rather a challenge to how the statute is interpreted, the office asserts. The Fitzpatrick decision applies to a constitutional challenge. That decision would only come into play if the Ninth District had ruled that the law was being applied retroactively, and the appeals court didn’t make that finding, the office explains. Because Fitzpatrick doesn’t apply, Swazey doesn’t have the right to appeal his conviction after pleading guilty, the prosecutor concludes.
Trial Court Empowered to Dismiss Case, Man Argues
Swazey contends that additional provisions in Crim.R. 12 don’t limit a trial judge’s consideration to only the facts provided in the indictment. He maintains there was no “general issue” to decide that required evidence, but rather just a legal interpretation of R.C. 2929.21 as it applied to him. Under Crim.R. 12(F), a trial court may “adjudicate a motion based on briefs, affidavits, the proffer of testimony and exhibits, a hearing, or other appropriate means.”
The prosecutor never contested the authenticity of the 2014 support order, he notes. The trial court simply needed to see the date of the termination order to conclude the three periods had to be arrearages because their end dates were all after the termination of his child support obligation, he notes. The court could have dismissed the case without further assessment of the evidence, he concludes.
Swazey cites the Court’s 2012 State v. Palmer decision, which determined that an alleged offender was charged with violating a sex offender registration law that took effect after the offender was convicted. In Palmer, the Court ruled a trial court may dismiss an indictment when it determines a law doesn’t apply to the defendant, Swazey notes. His situation is similar, and the Court should dismiss the case as improvidently accepted, he asserts.
Swazey also maintains the Ninth District properly interpreted the Fitzpatrick decision and the case’s finding that a person can challenge the constitutionality of a law after pleading guilty. He maintains he raised constitutional challenges throughout the proceedings, and can continue to challenge the law even though he pleaded guilty.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the State of Ohio from the Medina County Prosecutor’s Office: Vincent Vigluicci, vvigluicci@medinaco.org
Representing Michael Swazey Jr. from the Ohio Public Defender’s Office Addison Spriggs, addison.spriggs@opd.ohio.gov
Do Trade Secrets Include Information in Preneed Funeral Contracts?
Hanneman Family Funeral Home and Crematorium v. Patrick Orians et al., Case No. 2022-0573
Third District Court of Appeals (Allen County)
ISSUES:
- Do preneed funeral contracts constitute trade secrets?
- Can damages be determined in tort cases involving preneed funeral contracts and alleging interference with business contracts and business relations?
- Do legal claims for infringing on trade secrets bar tort claims stemming from theft, misuse, or misappropriation of confidential information?
BACKGROUND:
In August 2019, Hanneman Family Funeral Home and Crematorium purchased the assets of four funeral homes. One was Siferd-Orians Funeral Home in Lima, Ohio. Patrick Orians, who had worked at Siferd-Orians for 33 years as a funeral director, wasn’t kept as an employee with the new owners.
Orians took a job at another Lima funeral home, Chiles-Laman Funeral and Cremation Services, in mid-August. Orians sent 99 letters to people who had preneed funeral contracts with Siferd-Orians. He stated that the letters were sent to clients whom he knew personally, informing them that Sifred-Orians was purchased by another funeral home and he had not been retained. He said some letters noted he had joined Chiles-Laman and could be contacted there if former clients wanted to transfer their preneed funeral contracts.
Based on requests received, Chiles-Laman asked Hanneman to transfer 56 preneed contracts.
Funeral Director Accused of Stealing Client Information
In January 2020, Hanneman Funeral Home sued Orians and the Chiles-Laman funeral home. Hanneman alleged that Orians copied and stole the preneed funeral contracts, which contained trade secrets. The lawsuit asserted that Orians and Chiles-Laman then used the misappropriated information to solicit customers to transfer their preneed funeral contracts to Orians’ new employer. Chiles-Laman and Orians filed various counterclaims against Hanneman.
Chiles-Laman and Orians requested summary judgment from the Allen County Common Pleas Court on Hanneman’s claims. The court agreed, granting summary judgment in their favor. Among the conclusions, the court stated that the information in the preneed contracts was public information and easily obtained.
Hanneman appealed to the Third District Court of Appeals. Chiles-Laman and Orians also appealed aspects of the trial court rulings. The Third District overruled nearly all the claims.
Hanneman appealed to the Supreme Court of Ohio, which accepted the case. The Supreme Court also agreed to hear a cross appeal from Chiles-Laman and Orians.
Hanneman Argues Preneed Contract Details Were Trade Secrets
The trial and appeals courts found that the contract allegedly copied by Orians was available publicly through the Ohio Board of Embalmers and Funeral Directors or via online searches. The information didn’t rise to the level of a trade secret, the courts concluded. Hanneman counters that the publicly available information was only a fraction of the records Orians stole. The funeral home asserts that preneed funeral contracts contain extensive details about customers, including names, birth dates, Social Security numbers, addresses, contact information, funeral wishes and plans, obituaries, insurance coverage, and health information.
Hanneman notes that it takes steps to secure the crucial, confidential information by keeping preneed contracts in a locked fireproof cabinet and on a secure computer database. Only employees have access to the files, the funeral home states.
It maintains that the Siferd-Orians preneed funeral contracts were part of the purchase of the funeral home and had immense value – more than $1.3 million. Hanneman also argues that Orians targeted specific customers with funded contracts – those that had been prepaid or guaranteed by the insurance company providing the preneed policies. Although customers have the right to transfer a preneed funeral contract to a different funeral home, that doesn’t permit someone to steal the information to solicit transfers of those contracts, Hanneman asserts.
The additional information taken by Orians gave Chiles-Laman a competitive advantage, making its use a violation of trade secrets, Hanneman maintains. It also notes that the state legislature in September 2021 exempted preneed funeral contracts and related information from being a public record – demonstrating that the legislature never intended this information to be public.
Funeral Director and New Employer Contend Information Was Public
Chiles-Laman and Orians assert that Hanneman has broadened what information in the preneed contracts it now describes as trade secrets. They find the longer list irrelevant, though, arguing they could reach out to people simply with a list of names and without any other information. Chiles-Laman and Orians also ask, if Hanneman transferred the contracts to Chiles-Laman, how could the information in the contracts be trade secrets?
Chiles-Laman and its employee state that when a funeral home closes or changes ownership, details about all preneed funeral contracts and the insurance policies funding them must be submitted to the state board. That information is a public record, they argue. Although customer addresses wouldn’t be immediately available, that data from the contracts had many incorrect listings and addresses could be obtained through other public sources, they contend. They argue such information doesn’t amount to trade secrets.
In addition, publicly available information doesn’t give someone a competitive advantage, they assert, so the information cannot be a trade secret.
Debate Over Whether Potential Damages Were Speculative
Hanneman also argues that Orians and his new employer illegally interfered with Hanneman’s business contracts and relations. The trial and appeals courts dismissed these claims, concluding the damages were only speculative. However, Hanneman maintains, damages are often speculative, and experts would have provided educated estimates of the harm caused. The contract value at the date it is created, the amount of time the contract has been in existence, its financial appreciation during that time, and past financial data about preneed contracts generally would determine the value of each preneed contract, the funeral home suggests.
Chiles-Laman and Orians respond that they didn’t infere with Hanneman’s business contracts and relations because customers are allowed to cancel or transfer their preneed funeral contracts. Chiles-Laman argues that Orians also was required by Ohio law to notify clients that the Siferd-Orians Funeral Home was closing. For determining damages, they maintain that the true value of preneed contracts providing future funeral needs cannot be determined until a death occurs. Any alleged lost profits are remote and speculative, they conclude.
Consideration of Trade Secret Versus Other Legal Claims
In their cross-appeal, Chiles-Laman challenges part of the Third District’s decision about the state trade secrets act. The funeral home argues the act prohibits parties alleging trade secrets violations from making other civil claims based on misappropriation of information. The Third District concluded instead that if a trade secret claim fails, the other common law claims can move forward. Chiles-Laman contends, though, that the act preempts other civil claims. The funeral home maintains that the Third District ruling contradicts decisions in three other state appellate courts.
Hanneman responds that even if the preneed contracts contained no trade secrets, its other civil claims on interference with business contracts and relationships turn on Orians’ actions in stealing confidential information from his prior funeral home. Hanneman maintains that these additional claims based on taking confidential information aren’t preempted by the trade secrets act and can move forward. Businesses must have a recourse when an aggrieved employee steals confidential information, even if not a trade secret, Hanneman argues.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Hanneman Family Funeral Homes and Crematorium: Aaron Bensinger, alb@bensingerlegal.com
Representing Chiles-Laman Funeral and Cremation Services and Patrick Orians: James Smith, asmith@corylpa.com
When Are Attorneys Disqualified From Representing Co-Defendants?
State of Ohio v. Adrienne Jordan and State of Ohio v. Sashia Johnson, Case Nos. 2022-0733 and 2022-0734
Fourth District Court of Appeals (Scioto County)
ISSUES:
- Must a trial court reference particular facts and circumstances of a case before disqualifying counsel from dual representation?
- Is the meaning of “potential conflict of interest” in dual representation cases arbitrary and burdensome?
BACKGROUND:
In June 2020, an Ohio State Highway Patrol officer pulled over a vehicle on U.S. Route 23 in Scioto County. Sashia Johnson was driving, and Adrienne Jordan was a passenger. The vehicle was owned by Jordan’s mother.
A grand jury indicted Johnson and Jordan on charges of trafficking cocaine, possession of cocaine, and possession of criminal tools.
Johnson and Jordan hired the same law firm to represent them. The law firm states that it advised the women of their rights to have separate counsel, to independently negotiate a plea with the state, and to testify against each other. The firm informed them of the potential conflict of interest if they had joint legal representation. Johnson and Jordan said their interests were aligned and signed waiver of the potential conflicts.
Trial Court Considers Law Firm Representation of Co-Defendants
The Scioto County Prosecutor’s Office notified the trial court about the law firm’s representation of both defendants. The Scioto County Common Pleas Court held hearings on the issue in September and October 2020. The judge heard from the prosecutor and the lawyers for Johnson and Jordan. The judge also talked directly with the women.
In November 2020, the judge disqualified the law firm from representing Johnson and Jordan. The court’s decision stated:
“The trial court cannot foresee what evidence the State will present at trial, or what each of the co-defendants may wish to explore prior to trial. In reviewing this matter the court finds there is serious potential that one defendant will change her position and claim the other committed the charged offenses alone. The evidence at trial may more strongly incriminate one defendant over the other. It is also possible that the evidence could more strongly exculpate one defendant over the other. Counsel representing both defendants would be precluded from arguing those facts to the jury that tend to incriminate one defendant but not the other or tend to exculpate one defendant but not the other. Additionally, one defendant may desire to explore potential plea bargains with the State rather than go to trial. This Court finds that there is a serious potential for a conflict of interest in dual representation of both defendants.”
The court ordered Johnson and Jordan to find new lawyers within 14 days.
Johnson and Jordan each appealed to the Fourth District Court of Appeals, which upheld the trial court decision. Johnson and Jordan separately appealed to the Supreme Court of Ohio, which accepted their cases and consolidated them.
Co-Defendants Believe Right to Choose Lawyer Is Primary
The Sixth Amendment to the U.S. Constitution guarantees the right to counsel in criminal prosecutions. For defendants who don’t need appointed counsel, they have the right to the lawyer of their choice. Joint representation of defendants is not prohibited. And, Johnson and Jordan maintain, a 2006 U.S. Supreme Court ruling – United States v. Gonzalez-Lopez – may have elevated the importance of the right to a lawyer of one’s choice above a trial court’s concerns in ensuring a defendant’s right to effective assistance of counsel.
The U.S. Supreme Court’s earlier precedent, in Wheat v. United States (1988), stated that “the essential aim of the [Sixth] Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers.” Yet in Gonzalez-Lopez, Johnson and Jordan note, the Court majority wrote that the Sixth Amendment right to select a lawyer “commands, not that a trial be fair, but that a particular guarantee of fairness be provided – to wit, that the accused be defended by the counsel he believes to be best.” The opinion adds that the right to choose a lawyer “has been regarded as the root meaning of the constitutional guarantee.”
Johnson and Jordan suggest that Gonzalez-Lopez indicates there are limits on the wide discretion trial courts have in disqualifying attorneys from joint representation. They argue that what is regarded as a “potential conflict of interest” for dual representation is too broad. Little guidance exists about the criteria governing this determination and the limits on a trial court’s discretion, they assert.
Johnson and Jordan argue the trial court reasons for rejecting the law firm’s joint representation in their cases were “speculative” and didn’t explain how the facts created a potential conflict. Their brief contends there should be a presumption of no conflict of interest when defendants have “knowingly, intelligently, and voluntarily” executed waivers of conflict. Then, in circumstances when a trial court makes a finding of an actual or serious potential for conflict in a case, it can disqualify counsel, the brief maintains.
State Contends That Trial Courts Balance Rights
The Scioto County prosecutor disagrees that Gonzalez-Lopez somehow shifted the case law on the right to counsel. The U.S. Supreme Court stated that its decision placed no qualifications on its earlier decisions, such as Wheat, regarding the right to a counsel of choice, the prosecutor notes. The office adds that a Supreme Court of Ohio decision before Gonzalez-Lopez stated that there is no unqualified right to the counsel of one’s choice, just a presumption of the right. If an actual conflict or a serious potential for conflict is shown, then that right is overcome and an attorney representing multiple defendants in a case can be disqualified, the prosecutor states. No court rulings in Ohio have altered this approach in response to Gonzalez-Lopez, the prosecutor maintains.
The prosecutor also argues that trial courts don’t have to detail specific facts to justify disqualification of an attorney for a potential conflict of interest. Concerns about a potential conflict rely on speculation, the prosecutor maintains. In this case, the evidence known about the cocaine possession and amount was enough for the trial court to justify the disqualification of the law firm from representing both Johnson and Jordan, the prosecutor contends. The Fourth District noted, too, that unforeseen events could quickly shift the relationship between Johnson and Jordan and lead one to want to accuse the other of committing the alleged offenses.
The office discards the suggestion that the Court adopt guidelines and standards for trial courts to use when evaluating potential conflicts of interest in joint representation. That request from Johnson and Jordan goes far beyond federal and state case law on the Sixth Amendment right to counsel, the office argues. The prosecutor maintains that prior rulings provide clear legal standards for trial judges to ensure a meaningful right to counsel. Strict tests and guidelines would thwart the ability of trial judges to identify potential conflicts of concern, the prosecutor concludes.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket (2022-0733 and 2022-0734).
Contacts
Representing Adrienne Jordan and Sashia Johnson: Roger Soroka, roger@sorokalegal.com
Representing the State of Ohio from the Scioto County Prosecutor’s Office: Jay Willis, stieman@sciotocountypo.org