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Daily Court Reporter - News Ohio probate judge publicly reprimanded for presiding over ex-client cases

 

Ohio probate judge publicly reprimanded for presiding over ex-client cases

Dan Trevas, Supreme Court of Ohio

The Ohio Supreme Court recently publicly reprimanded a Mahoning County probate judge for taking action as a judge on cases in which he previously served as a lawyer. The Court noted there was no evidence that Rusu’s misconduct caused any measurable harm or that it “resulted in anything less than the evenhanded administration of justice.”

Robert N. Rusu Jr. was appointed as a Mahoning County Probate Court judge in July 2014 and won election to the office in November 2014. The Office of Disciplinary Counsel filed a complaint against Rusu in May 2018 alleging he violated several rules governing the conduct of Ohio judges by presiding over cases in which he previously served as an attorney and failing to promptly notify multiple clients that once he was appointed to office, he was terminating his representation of them.

The Supreme Court’s per curiam opinion noted the parties stipulated to the facts and that Rusu committed two rule violations. The Board of Professional Conduct agreed with the parties and recommended the Supreme Court issue a public reprimand.

Chief Justice Maureen O’Connor and Justices Sharon L. Kennedy, Judith L. French, Patrick F. Fischer, Michael P. Donnelly, and Melody J. Stewart joined the opinion. Justice R. Patrick DeWine did not participate in the case.

Executor Representation Illustrates Wrongdoing

Rusu’s misconduct arose from his representation of Beth Ann Malone in her capacity as the executor of her aunt’s estate and his subsequent involvement as the judge assigned to that case. Rusu began representing Malone in 2012. Malone’s mother was to receive two timeshares and a cash distribution of $3,851, but she allowed her daughter to have the timeshares. In May 2014, Malone informed Rusu’s paralegal that she had used the entire $3,851 for her own benefit, believing her mother had opted not to accept any part of her aunt’s estate and allow Malone to keep it. The paralegal informed Malone that was not the case, and Rusu instructed her to immediately reimburse the estate.

In July 2014, Rusu informed Malone that as a result of his judicial appointment he no longer would be her attorney, but that his former law office associate, Charlene Burke, would continue to serve as her counsel.

In February 2016, Malone and Burke were ordered to appear before the probate court to explain why they had failed to timely file a status report regarding the estate. Rusu adopted a probate court magistrate’s decision in the matter. A visiting judge presided over the remainder of the case. At his disciplinary hearing, Rusu admitted he was aware of previously representing Malone in the probate case. But he did not initially believe his conduct would create an appearance of impropriety because all the parties were represented by lawyers, they agreed to the resolution of the case, and they never formally appeared before him.

Similar to the Malone incident, Rusu and the disciplinary counsel identified about 170 other cases in which Rusu served as a lawyer then took some action after becoming a judge. More than 120 of those actions involved a deputy clerk issuing form letters or notices bearing Rusu’s signature, or the stamping of Rusu’s name to certain filings after reviewing them for accuracy.

Other cases involved the waiver of certain annual reporting requirements and the settlement of undisputed matters, the appointment of fiduciaries, and the approval of guardian and attorney fees. The parties agreed that Rusu violated the rule requiring judges to act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary and to avoid the appearance of impropriety. He also violated the rule requiring him to disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

Judge Delayed Notification to Former Clients

The Board of Professional Conduct also found Rusu notified a number of clients that he had been appointed to the bench, that he sold his share of his law practice, and that he was terminating his representation. He offered them the services of other attorneys at his former law firm. However, he remained the attorney listed on a large number of open, but largely dormant, estates and guardianships.

Rusu failed to promptly notify many of the clients with dormant cases that he had been appointed to the bench and did not give those clients the opportunity to employ other lawyers or request the return of their files. Therefore, the board found Rusu violated the rule requiring that a lawyer withdrawing from representation take steps to protect a client’s interest.

When considering the appropriate sanction for Rusu’s misconduct, the board noted that he took responsibility for his actions, did not harm his clients, and implemented measures to prevent himself from inadvertently presiding over any other matter in which he participated in his private practice.

“Nothing in the record indicates that Rusu’s misconduct that is at issue in this case caused measurable harm to any litigants or resulted in anything less than the evenhanded administration of justice,” the opinion stated. “By performing judicial functions in the same cases in which he had previously represented clients, however, Rusu created an appearance of impropriety that adversely reflected on the independence, integrity, and impartiality of the judiciary—even though many of his actions were ministerial in nature.”

The Court agreed that a public reprimand was appropriate and ordered Rusu to pay the costs of the disciplinary proceedings.

The opinion can be viewed online at: http://www.courtnewsohio.gov/cases/2019/SCO/0403/181436.asp#.XKS0Y6R7mUk

2018-1436. Disciplinary Counsel v. Rusu, Slip Opinion No. 2019-Ohio-1201.

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion, but only for noteworthy cases. Opinion summaries are not to be considered as official headnotes or syllabi of court opinions. The full text of this and other court opinions are available online.

About the Supreme Court of Ohio

The Supreme Court is established by Article IV, Section 1 of the Ohio Constitution. Article IV, Section 2 of the Constitution sets the size of the Court and outlines its jurisdiction. Article IV, Section 5 of the Constitution grants rule making and other authority to the Court.

The Supreme Court is the court of last resort in Ohio. Most of its cases are appeals from the 12 district courts of appeals. The Court may grant leave to appeal felony cases from the courts of appeals and may direct a court of appeals to certify its record in any civil or misdemeanor case that the Court finds to be "of public or great general interest."

The Supreme Court also has appellate jurisdiction in cases involving questions arising under the Ohio or United States Constitutions, cases originating in the courts of appeals, and cases in which there have been conflicting opinions on the same question from two or more courts of appeals. The Supreme Court hears all cases in which the death penalty has been imposed. These cases currently include both appeals from courts of appeals affirming imposition of the death penalty by a trial court and, for capital crimes committed on or after Jan. 1, 1995, appeals taken directly from the trial courts. Finally, the Supreme Court's appellate jurisdiction extends to review of the actions of certain administrative agencies, including the Public Utilities Commission.

The Supreme Court has original jurisdiction to issue extraordinary writs. These include writs of habeas corpus (inquiring into the cause of an allegedly unlawful imprisonment or deprivation of custody), writs of mandamus (ordering a public official to perform a required act), writs of procedendo (compelling a lower court to proceed to judgment in a case), writs of prohibition (ordering a lower court to stop abusing or usurping judicial functions), and writs of quo warranto (issued against a person or corporation for usurpation, misuse, or abuse of public office or corporate office or franchise).

The Constitution grants the Supreme Court exclusive authority to regulate admission to the practice of law, the discipline of attorneys admitted to practice, and all other matters relating to the practice of law. In connection with this grant of authority, the Supreme Court has promulgated the Supreme Court Rules for the Government of the Bar of Ohio. These rules address, among other things, admission to practice, attorney discipline, attorney registration, continuing legal education, and unauthorized practice of law.

The Constitution also gives the Supreme Court authority to prescribe rules governing practice and procedure in all courts of the state and to exercise general superintendence over all state courts. Procedural rules promulgated by the Supreme Court become effective unless both houses of the General Assembly adopt a concurrent resolution of disapproval. Rules of superintendence over state courts set minimum standards for court administration. Unlike procedural rules, rules of superintendence do not have to be submitted to the General Assembly to become effective.

In connection with all of the rules for which it has responsibility, the Supreme Court generally solicits public comment before adopting new rules or amendments in final form. The Court first publishes its rules and amendments in proposed form. These proposals appear in both the Ohio State Bar Association Reports and the Ohio Official Advance Sheets and indicate the period open for comment and the staff member to whom comments should be directed. The Court reviews all comments submitted before it decides whether to adopt or amend a rule.

Pursuant to the Constitution, the Chief Justice or a Justice designated by the Chief Justice is responsible for ruling on the disqualification of appellate and common pleas court judges. The procedure for obtaining review of a claim of disqualification against an appellate or common pleas judge is commenced by the filing of an affidavit of disqualification with the Clerk of the Supreme Court. The Revised Code contains specific requirements governing the filing of affidavits of disqualification.

Article IV, Section 2 of the Constitution sets the size of the Court at seven -- a Chief Justice and six Justices, who are elected to six-year terms on a nonpartisan ballot. Two Justices are chosen at the general election in even-numbered years. In the year when the Chief Justice runs, voters pick three members of the Court.

A person must be an attorney with at least six years experience in the practice of law to be elected or appointed to the Supreme Court. Appointments are made by the Governor for vacancies that may occur between elections.

Date Published: April 16, 2019

 

Supreme Court of Ohio

 

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Ohio probate judge publicly reprimanded for presiding over ex-client cases

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