November 2004

Topic:
Misrepresentation to Lawyer Regulation Staff During an Investigation.

Ohio State Bar Assn. V. Stephen M. Stern, ___ Ohio St.3d ___, 2004-Ohio-5464 (Nov. 3, 2004). Stern, who was admitted in Ohio in 1973, is the former Prosecuting Attorney for Jefferson County. In 2000, the Office of Disciplinary Counsel (“ODC”) was investigating an allegation filed against Stern by a woman named Mary Smith. Mary had claimed that Stern, as a prosecutor, had engaged in some type of vendetta against subjects of criminal inquiry, including Mary and her husband, Gary Smith. During the disciplinary investigation, two ODC investigators met with Stern at his office. At that time, they asked the prosecutor whether their meeting was being taped and Stern answered “no”. In reality, he was causing the session to be videotaped. Fairly soon thereafter, the disciplinary investigation was closed because the Smith allegations could not be substantiated. Stern lost his bid to be returned to office in November 2000 and, the following January, his successor discovered the videotape and ultimately gave it to his lawyer, who then forwarded it to ODC. Formal disciplinary charges were eventually lodged against Stern by the Ohio State Bar Association Ethics Committee alleging that he had made a misrepresentation to ODC investigators. Stern defended himself by stating that the taping, and his failure to disclose the taping, was justified because the Smiths were strong supporters of his opponent in the upcoming county prosecutor election and because they were attempting to impede his investigation of them. A hearing panel agreed with Stern and concluded that the Smiths were “manipulating” ODC in an effort to curtail Stern’s criminal investigation. Further, the panel noted that, in the 1980’s, Stern had been the target of an “improper” disciplinary investigation in which “the office of disciplinary counsel had abused its authority.” A majority of the panel concluded that the surreptitious taping was not per se unauthorized and, because no harm resulted from the misrepresentation, there was insufficient evidence that Stern had violated Ohio ethics law. One panel member dissented and recommended a public censure. The Board of Commissioners reviewed the panel decision, concurred in the majority findings, but opined that a public reprimand would be appropriate. The Ohio Supreme Court reviewed the lower decisions and, citing the unique factual circumstances of the case, dismissed the charges in a 4-3 decision. Although the majority agreed that attorneys generally should not employ surreptitious taping in the course of their legal representations, there were misgivings in using the particular facts of this case to support such a rule of law. As to the issue of Stern’s candor about the taping, the Court noted:

We recognize that reasonable minds can differ in how this case is viewed and that, on a fundamental level, there is understandable apprehension about allowing respondent to escape discipline for what can only be characterized as lying to ODC investigators. We are not totally comfortable with establishing a precedent that seems to accept that telling such a lie is tolerable. Nevertheless, after thoroughly considering the salient details, we find that dismissal of the charge is warranted. We caution explicitly that our determination is based upon unique circumstances of this case and is limited exclusively to this situation.

A written dissent suggests that a precedent has been created which allows a lawyer to lie if that lawyer believes that a disciplinary grievance is politically motivated. “Such situational ethics,” the dissent notes, “have no place in a lawyer discipline system.”

The full text of the opinion is located at:
http://www.sconet.state.oh.us/rod/newpdf/0/2004/2004-Ohio-5464.pdf