Tuesday, June 27, 2023
State of Ohio v. Phillip A. Palmer, Case No. 2022-0987
Twelfth District Court of Appeals (Clermont County)
In re E.S. Jr., Case No. 2022-0993
Eighth District Court of Appeals (Cuyahoga County)
State of Ohio v. Darnelle Hurt, Case No. 2022-1037
Eighth District Court of Appeals (Cuyahoga County)
Columbus Bar Association v. Douglas W. Bulson Jr., Case No. 2023-0470
Franklin County
Did Judge Improperly Refuse to Allow Jury to Consider Self-Defense Claim?
State of Ohio v. Phillip A. Palmer, Case No. 2022-0987
Twelfth District Court of Appeals (Clermont County)
ISSUES:
- Does a revision to the state law on claiming self-defense lower the amount of evidence a defendant needs to have a jury consider the claim?
- Does a trial judge usurp the role of a jury by weighing the evidence presented in a claim of self-defense and deciding that a jury can’t consider the claim?
BACKGROUND:
In 2019, then 71-year-old Phillip Palmer owned a taxicab service and had spent the majority of his life driving taxicabs in greater Cincinnati. The Vietnam War veteran obtained a concealed weapon permit in 2018. Because of his deteriorating health and the dangers of his job, he carried a revolver with him when he drove.
In December 2019, Nicholas Young became heavily intoxicated during an office Christmas party that had led the partygoers to the Jack Casino in Cincinnati. Young passed out in the casino and was escorted outside where a taxi was hailed to drive him home to Moscow, Ohio, in Clermont County. Young’s blood-alcohol level would later be recorded at .231, nearly three times the limit to legally drive in Ohio.
Young had previously taken Uber rides to get home and estimated the fare would be around $50. He slept during most of the cab ride. Palmer ran into traffic on his way out of Cincinnati. He rerouted and attempted to make his way to Moscow, and he tried to get Young to tell him the exact address where he lived. Young awoke and discovered they had reached Ripley, Ohio, about 30 minutes east of Moscow, and the meter indicated he owed between $130 and $170 for the ride at that point.
Young became upset with Palmer and directed him to a gas station in Moscow. Young got out of the taxi and refused to pay Palmer. When Young went into the gas station, Palmer followed him and the two argued about the fare. The store clerk, Haili Donley, tried to separate the men. Palmer asked Donley to call the police, but Donley refused because the store’s phone wasn’t working. She told Palmer to call the police himself. The men continued to argue about the fare and Donley stepped between the two to break up the argument. Palmer shoved Donley out of the way. That prompted another patron, Cletus Jones, to confront Palmer and tell him to leave the store. While Jones was in the store, Young asked Jones to drive him home and offered to pay him $20 for the ride. Palmer argued with Young about his willingness to pay Jones, but not him. Young shoved Palmer into the store’s glass door and attempted to leave with Jones.
Palmer returned to his taxi, and Jones and Young left the store from a different door and walked toward Jones’ truck. Jones’ son was in the truck. The son said he heard Palmer yell to Young that Young had left his cellphone in the cab. Witnesses gave conflicting statements on what happened next, but when Young approached the taxi, Palmer shot him. When Young was on the ground Palmer fired another shot near Young and left. Young went back into the store. Jones and Young then realized Jones had been hit with a bullet in the neck and was bleeding.
Police and emergency squads were called to the gas station. Young was taken by helicopter to a Cincinnati hospital for treatment. Palmer was pulled over in nearby New Richmond and arrested.
Driver Claims Self-Defense at Trial
Palmer was charged with attempted murder and felonious assault. Palmer claimed self-defense, saying that he feared for his life when the larger, younger, and heavily intoxicated Young rapidly approached him. He denied yelling out from the cab that Young had left his cellphone in it. Palmer requested that the jury receive an instruction on his self-defense claim, but the trial judge refused. The trial judge ruled that Palmer created the dangerous situation, had no credible argument justifying using lethal force, and could have taken other actions when Young refused to pay him.
The jury acquitted Palmer of attempted murder and found him guilty of felonious assault. He was sentenced to eight to 12 years in prison. Palmer appealed his conviction to the Twelfth District Court of Appeals, which affirmed the trial court’s decision.
Palmer appealed to the Supreme Court of Ohio, which agreed to hear the case.
Jury Should Have Ruled on Self-Defense Claim, Taxi Driver Asserts
Palmer argues the trial court and Twelfth District have misinterpreted the 2019 change to state law for self-defense claims. R.C. 2901.05(B)(1) states, “If, at the trial of a person who is accused of an offense that involved the person’s use of force against another, there is evidence presented that tends to support that the accused person used the force in self-defense, defense of another, or defense of that person’s residence, the prosecution must prove beyond a reasonable doubt that the accused person did not use the force in self-defense, defense of another, or defense of that person’s residence, as the case may be.”
Palmer argues the key phrase “tends to support” was added to lower the bar on what a person claiming self-defense had to present to the trial court. Once the defendant provides evidence supporting the use of self-defense, the burden shifts to the prosecution to prove the defendant wasn’t acting in self-defense. State law doesn’t define what actually constitutes “self-defense,” but the parties agree the courts have used a three-part test for decades. Under the test, “the defendant was not at fault in creating the situation giving rise to” the threat against the defendant; the defendant has a bona fide belief of being in “imminent danger of death or great bodily harm” so the defendant’s only means of escape was the use of force; and the “defendant did not violate any duty to retreat or avoid the danger.”
Palmer notes that in 2021 state lawmakers eliminated from the self-defense claim the duty to retreat from any place a person has a legal right to be. He maintains the trial court still required him to conclusively prove two points -- that he wasn’t at fault for creating the situation and that he was in imminent danger that required him to use deadly force. That standard is too high, Palmer argues. Under the “tends to support” provision, he only needed to present enough evidence to raise a question in a juror’s mind of whether his actions were justified or not. The judge should have allowed the jury to consider self-defense because there was enough evidence to believe he was justified, and the change in the law was intended to create that lower standard, he maintains.
Palmer also argues that he actually met the higher standard by meeting all three requirements to claim self-defense, even if the current law didn’t require it. Because he presented enough evidence, there was no reason for the trial court to assess the credibility of the evidence and reach its own conclusion that he wasn’t acting in self-defense, Palmer maintains. Because he presented enough evidence to make the self-defense claim, the trial judge wrongly prevented the jury from considering self-defense, he concludes.
Judge Appropriately Exercised Gatekeeper Role, Prosecution Maintains
The Clermont County Prosecutor’s Office rejects the claim that lawmakers lowered the amount of evidence required to claim self-defense when the law was changed. The prosecutor’s offices points to the Supreme Court’s 2022 State v. Messenger decision, which rejected the argument.
Regardless of the standard, the prosecutor argues that Palmer failed to provide any evidence that his use of deadly force was “objectively reasonable” in response to his encounter with an unarmed man. The prosecutor noted that Palmer stated he was justified in using a gun after Young pushed him into the glass door at the gas station. Palmer also said the clerk, Donley, would have been justified using a gun against him after he pushed her in the store, the prosecutor notes.
A trial judge retains the important position of “gatekeeper and arbiter over issues presented to the jury,” the prosecutor explains, and the trial court appropriately carried out its role in Palmer’s case. When self-defense is raised, the trial court doesn’t evaluate the credibility of the evidence, the prosecutor maintains, but does consider the “nature and quality” of the evidence. Because Palmer didn’t present sufficient evidence to demonstrate his fear was reasonable enough to justify the use of deadly force, the trial court was justified in refusing to grant a jury instruction, the prosecutor concludes.
Friend-of-the-Court Brief Submitted
An amicus curiae brief supporting Palmer’s position was submitted by the Ohio Public Defender’s Office.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Phillip A. Palmer: John Hill, attorneyjohnhill@gmail.com
Representing the State of Ohio from the Clermont County Prosecutor’s Office: Nick Horton, nhorton@clermontcountyohio.gov
Should Juvenile Accused of Shooting Friend Be Tried in Adult Court?
In re E.S. Jr., Case No. 2022-0993
Eighth District Court of Appeals (Cuyahoga County)
ISSUES:
- During a juvenile bindover probable cause hearing, is circumstantial evidence entitled to the same weight as direct evidence?
- When determining whether there is probable cause to transfer a juvenile to adult court, must the juvenile court examine the evidence in a light most favorable to the prosecution?
BACKGROUND:
In June 2020, two friends identified as “E.M.” and “E.S.” were both 16 years old and driving around in a stolen car. A girl who was a friend of the boys messaged them from a suburban Cuyahoga County hotel that she wanted to leave a party and asked if they would pick her up. E.M was driving the car and E.S. was in the passenger seat when they picked up the girl in the early morning hours.
As the three were driving, a Cuyahoga Heights police cruiser began to follow them. The two officers in the cruiser detected the vehicle was stolen and pursued the minors. E.M. began to flee. He took the car through a field as it was entering the city of Cleveland and crashed in a ravine. E.S. and the girl got out of the passenger side of the car and attempted to run. One Cuyahoga Heights officer pursued them.
The second officer inspected the vehicle and noticed the driver’s side door was open and after a few minutes, noticed the driver was lying face down in tall grass. The officer pulled out his gun and ordered the driver to get up. Cleveland police arrived, and a Cleveland officer turned over the driver and discovered two bullet wounds. He attempted to revive the driver, but was unsuccessful. The driver, E.M., died at the scene.
Investigators determined that a bullet entered through the driver’s upper right chest and exited near his left armpit. They found a bullet and a fragment of a bullet lodged in the interior of the driver’s side door, above the door handle. There was no bullet hole exiting or entering the outer part of the driver’s door. Officers also found a gun under the passenger seat. DNA tests revealed E.S.’s DNA on the gun along with the DNA of four others, but not the driver or the girl in the car.
E.S. was charged with five counts: involuntary manslaughter, reckless homicide, illegally possessing a firearm, receiving stolen property, and improperly handling a firearm in a motor vehicle.
Prosecutor Seeks to Try Youth as Adult
The Cuyahoga County Prosecutor’s Office sought a mandatory bindover of E.S. from juvenile court to adult court. The prosecutor’s office maintained that E.S. met the qualifications for a mandatory transfer to adult court because he had a previous adjudication for felonious assault, and he was being charged with involuntary manslaughter while in possession of a firearm.
At the probable cause hearing in juvenile court, the prosecutor presented 11 witnesses. The witnesses testified that a bullet was shot from the gun under E.S.’s seat. Investigators said a Cleveland police officer examined the guns of both the Cuyahoga Heights officers at the crime scene, and found that neither of their weapons had been discharged.
E.S. denied shooting E.M. The girl said she heard a loud “bang” when they crashed, but saw no weapon and didn’t see E.S. shoot their friend. Witnesses stated they found no blood in the car nor a trail of blood from the car to the driver’s body. The prosecution also indicated the bullets in the car were not tested to see if E.M.’s DNA was on the bullets.
The juvenile judge found there was probable cause to charge E.S. with receiving stolen property, improper handling of a firearm, and illegally possessing a firearm. The judge indicated, however, that the prosecution’s witnesses failed to explain how the bullet allegedly shot by E.S. could pass through the driver at the angle it did and then enter the door near the door handle. The judge also noted the witnesses couldn’t explain how there could be no blood in the car. The juvenile court ruled there wasn’t probable cause to charge E.S. with involuntary manslaughter or reckless homicide. The judge found the case wasn’t subject to a mandatory bindover and set a hearing to adjudicate the case in juvenile court.
The prosecutor appealed to the Eighth District, which affirmed the juvenile court’s decision in a 2-1 ruling.
The prosecutor appealed to the Supreme Court of Ohio, which agreed to hear the case.
Juvenile Court Used Wrong Standards to Resolve Case, Prosecutor Asserts
The prosecutor argues the juvenile court and Eighth District used the wrong standards to determine that E.S. shouldn’t be tried in adult court. The office argues that the probable cause hearing is an early stage of the case that doesn’t require the amount of specific, direct evidence of a crime needed to convict an individual. At a probable cause hearing, the state must provide credible evidence of every element of the crime charged, the office explains. For an involuntary manslaughter charge, the prosecutor had to demonstrate that a person committed a felony “that proximately causes the death of another.” The office maintains the juvenile court found E.S. committed felonies, including improperly handling a firearm in a motor vehicle, and that the handling of the gun caused the driver’s death.
At this stage, the prosecutor didn’t have to prove the bullet from E.S.’s gun killed the driver, the prosecutor argues. The state presented ample credible evidence that it was likely that E.S. shot the driver, the prosecutor asserts. Had the juvenile court given the state’s circumstantial evidence the same weight as direct evidence, then enough evidence was provided to transfer the case to adult court, the prosecutor asserts. Once transferred, the state could present further evidence to prove its theory, the office argues.
The prosecutor also maintains the juvenile court failed to view the evidence in a light most favorable to the prosecution, which is required under prior Supreme Court decisions. In this case, the juvenile court didn’t use that standard, and because of that, the court mistakenly refused to find enough credible evidence to allow the case to proceed in adult court, the prosecutor concludes.
Prosecutor Lacked Key Evidence, Accused Asserts
Although the prosecutor’s appeal claims the lower courts didn’t follow the proper standards when the transfer of E.S. was denied, in reality the office just wanted the juvenile and appeals courts to rule a different way, E.S. asserts. The juvenile court and the Eighth District followed the procedures outlined in recent Supreme court rulings, the accused argues, and the case should remain in juvenile court.
E.S. asserts that the juvenile judge didn’t indicate that any of the state’s evidence was “untrustworthy,” and the juvenile court didn’t improperly weigh the evidence. He says the state fails to mention that despite presenting nearly a dozen witnesses and numerous reports, it presented no evidence, direct or circumstantial, that proves the “proximate causation” aspect of involuntary manslaughter. Simply, the judge found that the prosecution failed to connect the gun under E.S.’s seat to the driver’s death, E.S. maintains. The accused argues the lower courts were correct to reject the state’s “magic bullet” theory and indicated the prosecution at no time presented any evidence that the gun under the seat was the one that shot the driver.
E.S. points to the Eighth District’s decision, which said to prove the proximate causation of the involuntary manslaughter charge, the state had to present “sufficient evidence that E.M.’s death was a direct, natural, and reasonably foreseeable consequence of E.S.’s possession of a firearm.” The judge found the prosecution’s evidence made it hard to explain how E.S. could have shot the driver from the passenger seat based on the angle of the bullet traveling through the driver’s body and into the door. The judge asked if the state had tested the bullet for E.M.’s DNA, which it didn’t, and noted that test could have shown the bullet in the door was allegedly shot by him, E.S. explains.
The juvenile court’s concern about the credibility of the evidence allowed it to reach the logical conclusion that there was probable cause that he committed the illegal possession and mishandling of the gun, E.S. states. But the court correctly couldn’t find that his possession of the weapon resulted in reckless homicide or involuntary manslaughter of his friend, E.S. concludes.
Attorney General to Share Oral Argument Time
The Ohio Attorney General’s Office submitted an amicus curiae brief supporting the prosecutor’s position. The Court has allowed the prosecutor and attorney general to share oral argument time.
– 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 Cuyahoga County Prosecutor’s Office: Daniel Van, dvan@prosecutor.cuyahogacounty.us
Representing E.S. Jr. from the Ohio Public Defender’s Office: Timothy Hackett, timothy.hackett@opd.ohio.gov
Representing the Ohio Attorney General’s Office: Benjamin Flowers, benjamin.flowers@ohioattorneygeneral.gov
When Do Self-Defense Claims No Longer Require Duty to Retreat?
State of Ohio v. Darnelle Hurt, Case No. 2022-1037
Eighth District Court of Appeals (Cuyahoga County)
ISSUES:
- Does the 2021 state law eliminating the duty to retreat when claiming self-defense apply to all trials held after the law’s effective date, regardless of when the alleged offense occurs?
- Does a claim of acting in self-defense apply to alleged offenses against bystanders?
- When a retrial is ordered, must the defendant again prove the mitigating factors found by a jury in the first trial?
BACKGROUND:
In April 2020, Tannika Dobson was at home with her children in Cleveland. She had given birth a few weeks earlier to her third child. She contacted the children’s father, Darnelle Hurt, who lived elsewhere, and asked him to come over to help. Hurt did chores and cared for the children while Dobson slept. She was awakened by the children fighting. Dobson and Hurt began arguing about parenting, and she told Hurt to leave. She later testified that Hurt pulled a gun on her.
Dobson said she was scared and Hurt wouldn’t calm down. She texted a friend and her father. She also called police. She said she was afraid to speak to the police in front of Hurt, but hoped they would dispatch someone to her apartment. Police went to Dobson’s former address.
When Dobson’s father arrived, she told him she was scared and Hurt had pointed a gun at her. Dobson testified that Hurt no longer had his gun drawn. Dobson’s father pulled out a gun and moved toward Hurt, who was about halfway between the front and back doors. Dobson said the men started shooting and a bullet flew by her. She took the children upstairs. When she returned, she saw her father on the floor. Hurt ran out the back door. Dobson said he returned, grabbed her father’s gun, told her to call 911, and fled.
Dobson called 911. Emergency personnel arrived and took her father to the hospital, where he died. The medical examiner found Dobson’s father was shot 12 times and died from gunshot wounds. Hurt was arrested in June 2020.
Defendant’s Attorneys Want Jury Instructed on New Law
Hurt was charged with murder, felony murder with an underlying offense of felonious assault, voluntary manslaughter, felonious assault of Dobson’s father, felonious assault of Dobson, and domestic violence against Dobson. During the July 2021 jury tialr in Cuyahoga County Common Pleas Court, Hurt’s lawyers asked for specific jury instructions, including guidance about a new state law on self-defense that had gone into effect on April 6, 2021. The trial court determined, though, that the prior self-defense law applied to Hurt’s case because his alleged offenses occurred in 2020. The earlier law required a duty to retreat before claiming self-defense.
The jury didn’t convict Hurt of one count of murder, but found him guilty of all other charges and firearm specifications. The trial court sentenced him to life in prison with eligibility for parole after 21 years.
Hurt appealed. In June 2022, the Eighth District Court of Appeals ordered a new trial for Hurt on four of the charges – felony murder, voluntary manslaughter, and both felonious assaults. The Eighth District stated that the jury should have been told that it could not find Hurt guilty of both murder and voluntary manslaughter. The appeals court also ruled that the jury should have been instructed about lesser offenses for felony murder and felonious assault. In addition, the 2021 self-defense law didn’t apply because Hurt’s offenses were committed before the law took effect, the court determined.
Hurt appealed to the Supreme Court of Ohio, which accepted the case.
Man Argues He Had No Duty to Retreat to Prove Self-Defense
During Hurt’s trial, the jury was instructed that for Hurt to successfully argue self-defense, he had to show he first retreated before shooting Dobson’s father. If Hurt didn’t retreat, the jury could not find that he acted in self-defense. Hurt notes, though, that the changes to Ohio’s self-defense law on April 6, 2021, eliminated the duty to retreat. The law is referred to as the “stand your ground” law. Hurt contends that the law applies to all trials that start on or after the law’s effective date, regardless of when an alleged crime occurs. His trial began in July 2021.
He points to the Supreme Court of Ohio ruling in State v. Brooks (2022). That case considered whether a 2018 state law shifting the burden of proof for establishing self-defense applied to trials that take place after the law’s effective date, regardless of when the alleged offenses occur. The Supreme Court ruled that the law changed how self-defense is to be proven at trials and applied to any trials that take place on or after the law’s effective date. The same logic applies to the “stand your ground” law – meaning he had no duty to retreat because his trial began after April 6, 2021, Hurt argues.
State Contends ‘Stand Your Ground’ Law Doesn’t Apply to This Case
The Cuyahoga County Prosecutor’s Office responds that the “stand your ground” law was a substantive change to state law that in part eliminated the duty to retreat before a person could use force in self-defense. Because the changes were substantive, rather than procedural, the law can’t be applied retroactively to alleged offenses, such as Hurt’s, that occurred before the law’s effective date, the prosecutor maintains. The prosecutor also asserts that laws don’t apply retroactively unless the statute clearly says that – which the “stand your ground” law does not.
The prosecutor argues Brooks was different. The self-defense laws in that case altered who has the burden at trial to prove self-defense, the prosecutor maintains. Those changes didn’t create a new right to self-defense like the “stand your ground” law does, the prosecutor contends. The prosecutor also suggests that it may be too soon for the Supreme Court to decide the issue in this case because of the pending retrial.
Self-Defense Claims Debated for Crimes Involving Innocent Victims
One of Hurt’s felonious assault charges was for the bullet that flew past Dobson when he was shooting at her father. Hurt argues that a person can claim self-defense for a charge involving an innocent bystander that stems from the other actions in self-defense. Hurt refers to this concept as “transferred intent.” Hurt contends that acting in self-defense when Dobson’s father started shooting is a defense against the felonious assault charge involving Dobson.
The prosecutor counters that the Supreme Court shouldn’t consider this argument because Hurt is going to be retried on this charge. If the Court reviews the question, though, the prosecutor argues Hurt is incorrect. Transferred intent means that when someone acts with criminal intent against person A but harms person B, the intent transfers and the defendant is still legally responsible for a crime against person B, the prosecutor maintains. To decide otherwise, the Court would be allowing a defendant who acts in self-defense toward one person to be excused from harming an innocent bystander, the prosecutor concludes.
Parties Disagree Whether Prior Jury Findings Can Be Reconsidered in New Trial
Hurt states that to convict him of voluntary manslaughter, the first jury found his conduct in killing Dobson’s father was mitigated because of acting with “sudden passion or in a fit of rage” brought on by “serious provocation” by Dobson’s father. Hurt maintains that the jury’s findings about this mitigating factor are binding during a new trial and don’t need to be proven again. Once an issue of fact has been determined, it can’t be litigated again between the same parties, Hurt argues.
The prosecutor counters that because the Eighth District ordered a new trial on four charges, none of the findings of fact from the original trial are subject to the prohibition against relitigating the same issues. Hurt can’t pick and choose which findings from his first trial he wants applied to his new trial, the prosecutor maintains. The prosecutor argues the parties must start from scratch with the charges sent back for retrial.
Groups Submit Additional Arguments
The Cuyahoga County Public Defender’s Office and Ohio Association of Criminal Defense Lawyers filed a joint amicus curiae brief supporting Hurt. The groups will participate in arguments before the Court, sharing the time allotted for Hurt.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Darnelle Hurt: Eric Levy, law@getlevy.com
Representing the State of Ohio from the Cuyahoga County Prosecutor’s Office: Daniel Van, dvan@prosecutor.cuyahogacounty.us
Bar Association Wants Restitution Added to Lawyer’s Suspension
Columbus Bar Association v. Douglas W. Bulson Jr., Case No. 2023-0470
Franklin County
A client of a Columbus attorney waited nine years after a divorce to receive retirement funds from her ex-husband. An expert says the process should have taken between 60 to 90 days, and that the client lost out on thousands of dollars that could have been earned through investing it in a retirement plan.
The Board of Professional Conduct has recommended that the client’s attorney, Douglas W. Bulson Jr., be suspended from the practice of law for 18 months, with 12 months stayed, for neglecting his client’s matter. The Columbus Bar Association asks the Supreme Court of Ohio to order Bulson to pay between $7,917 and $18,204 in restitution to his client.
Bulson, who didn’t file an objection to the proposed sanction, has been disciplined before. He received a fully stayed 18-month suspension in May 2020 for neglecting client matters. The board reported that “in retrospect” that sanction did not adequately protect the public. The board’s proposed sanction in this case allows Bulson to be reinstated if he completes three hours of continuing legal education in law office management and works with a monitoring attorney for one year.
The board rejected the Columbus Bar Association’s request that restitution be paid. The bar association’s objection to the board recommendation triggered an oral argument before the Supreme Court.
Order to Split Retirement Funds Ignored for Years
Amy Shepherd hired Bulson to represent her in a divorce. In January 2013, the couple’s separation required that Edward Shepherd sign a Qualified Domestic Relations Order (QDRO) that was to be prepared by Bulson. That QDRO would transfer $19,427 from Shepherd’s ex-husband’s 401(k) account to her.
Despite frequents attempts to contact Bulson, Shepherd was unable to get Bulson to complete the QDRO for more than eight years. In April 2021, Bulson promised Shepherd the QDRO would be finalized in 30 days. But he didn’t complete the work.
In June 2021, Shepherd filed a grievance with the Columbus Bar Association, which sent Bulson a letter. Bulson responded that he was unable to recover computer files regarding Shepherd’s matter and that problem had caused the delay. In October 2021, he told the bar association he would have the appropriate paperwork completed for the order within 30 days and would seek to have Shepherd’s ex-husband sign it.
Bulson didn’t submit the materials as promised. The bar association filed a complaint with the Board of Professional Conduct, charging Bulson with several ethical violations. Bulson completed the QDRO and, in April 2022, a Madison County judge signed and entered the order, determining that Shepherd was to receive $19,347 from her ex-husband’s retirement account. She didn’t receive the full amount until November 2022.
The board noted that Bulson’s failure to act led to a nine-year delay in Shepherd receiving the funds.
Lawyer Should Pay for Lost Investment Opportunities, Bar Association Asserts
The board found Bulson violated professional conduct rules by not acting with reasonable diligence to complete the QDRO. He also failed to reasonably communicate with Shepherd and keep her informed of her legal matters.
At Bulson’s disciplinary hearing, the bar association presented Karen Cookston, a financial advisor with more than 35 years of experience. Cookston testified that she regularly advises clients on investing funds received from QDRO orders. She explained the typical process from the time a judge orders a QDRO to its completion is 60 to 90 days.
Cookston analyzed the performance of five different investment funds between the time the judge ordered the QDRO and when Shepherd finally received her money. Cookston said Shepherd’s inability to receive and invest the QDRO funds in a timely manner cost her between $7,917 and $34,748 depending on the type of investment approach used.
The bar association asked the panel to award a “middle-ground” amount of $18,204, or at least the minimal amount projected by Cookston of $7,917.
The board rejected the restitution payment, indicating the board doesn’t typically grant restitution when an attorney causes a client to lose income. The board noted it typically orders restitution in cases where lawyers retain unearned legal fees and refuse to return the money to clients.
The board noted that Shepherd’s claims for damages from Bulson is “a more proper subject of a civil malpractice case.”
The bar association counters that the board found that Bulson harmed Shepherd because she didn’t have access to the money for many years. The bar association maintains the Court should order restitution because Shepherd’s loss was caused by Bulson’s violation of the professional conduct rules.
Bulson didn’t file a response in the case.– 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 Columbus Bar Association: Kent Marcus, kent@cbalaw.org