OHIO RULES FOR CONDUCT OF ATTORNEY DISCIPLINARY HEARINGS – SPEEDY TRIALS ARE REQUIRED – THE KY. PROCEDURE HAS A RULE THAT CALLS FOR “PROMPTNESS” BUT IT IS FREQUENTLY IGNORED IN PRACTICE

 

The Ohio rules for speedy trial of attorney discipline complaints are far more specific than similar Kentucky rules. In Kentucky it is not uncommon for investigations to take several years, and some cases have taken eight to nine years.

 

Example: 2011-SC-000206-KB.PDF …this case began in 2005 and was not finally disposed of until 2010.  Also, the Bar Counsel investigated attorney John M. Berry Jr. for almost two years for writing a letter to the Legislature..no charge was presented to the Inquiry Commission.  Yet Berry and the ACLU have had no relief and the case is now before the 6th. Cirt. Court of Appeals.  This free speech issue seeks a clarification of whether or not the KBA can sanction an attorney for making truthful statements.  Berry’s letter was not profane, not threatening, and did not question the integrity or qualifications of a judicial officer.  The KBA has hired outside counsel to represent them…although they have nine full time lawyers, they have chosen to hire outside counsel….estimates are that the dues paying members of the Kentucky Bar will likely pay in excess of $100,000 in legal fees for the KBA to establish their right to limit the free speech of lawyers.

 

See Ohio Attorney Discipline rules at: http://www.supremecourt.ohio.gov/

 

OHIO RULES RE: SPEEDY DISCIPLINE HEARING

 

(D) Time for Investigation. The investigation of grievances by Disciplinary Counsel or a certified grievance committee shall be concluded within sixty days from the date of the receipt of the grievance. A decision as to the disposition of the grievance shall be made within thirty days after conclusion of the investigation.

 

(1) Extensions of Time. Extensions of time for completion of the investigation may be granted by the Secretary of the Board upon written request and for good cause shown. Investigations for which an extension is granted shall be completed within one hundred fifty days from the date of receipt of the grievance. Time may be extended when all parties voluntarily enter into an alternative dispute resolution method for resolving fee disputes sponsored by the Ohio State Bar Association or a local bar association.

 

(2) Extension Limits. The chair or Secretary of the Board may extend time limits beyond one hundred fifty days from the date of filing in the event of pending litigation, appeals, unusually complex investigations, including the investigation of multiple grievances, time delays in obtaining evidence or testimony of witnesses, or for other good cause shown. If an investigation is not completed within one hundred fifty days from the date of filing the grievance or a good cause extension of that time, the Secretary may refer the matter either to a geographically appropriate certified grievance committee or the Disciplinary Counsel. The investigation shall be completed within sixty days after referral. No investigation shall be extended beyond one year from the date of the filing of the grievance.

(3) Time Limits not Jurisdictional. Time limits set forth in this rule are not jurisdictional. No grievance filed shall be dismissed unless it appears that there has been an unreasonable delay and that the rights of the respondent to have a fair hearing have been violated. Investigations that extend beyond one year from the date of filing are prima facie evidence of unreasonable delay.

***

Three Member Hearing panels are used in Ohio instead of Trial Commissioners

(D) Probable Cause Determination; Appointment of Hearing Panel.

(1) Probable Cause Determination. Upon receipt of a complaint, the Secretary shall direct the complaint and investigatory materials to a probable cause panel for review. Each panel shall be composed of three members of the Board, chosen by the chair, who shall designate one attorney or judge member as chair of the panel. Upon review solely of the complaint and investigation materials, the probable cause panel shall make an independent determination of whether probable cause exists for the filing of a complaint. The panel shall issue an order certifying the complaint to the Board or dismissing the complaint and investigation. The determination of the panel shall be sent by certified mail to the Disciplinary Counsel, to the appropriate Certified Grievance Committee, and to the respondent.

(2) Dismissal for Lack of Probable Cause. Within seven days of receipt of the decision of the probable cause panel to dismiss the complaint, the Disciplinary Counsel or Certified Grievance Committee may appeal the decision to the full Board by filing a written appeal with the Secretary of the Board. The Board shall review the investigation and make an independent determination as to whether probable cause exists for the filing of a complaint. The Board shall issue an order certifying the complaint or dismissing it and send a copy of its decision to the parties by certified mail. There shall be no appeal from the decision of the Board.

 

(3) Appointment of Hearing Panel. After the respondent has filed an answer or the time for filing an answer has elapsed, the Secretary shall appoint a hearing panel consisting of three members of the Board chosen by lot from members who did not serve on the probable cause panel. The Secretary shall designate one attorney or judge member of the panel to serve as chair of the panel. No member of the hearing panel shall be a resident of the appellate district from which the complaint originated. Not more than one non-attorney shall serve on any hearing panel. A majority of the panel shall constitute a quorum. The panel chair shall rule on all motions and interlocutory matters, and no ruling by the panel chair on motions and interlocutory matters may be appealed prior to entry of the final order.

 

****

Section 9. Time Guidelines for Pending Cases

(A) Pre-hearing Conference

1) Within sixty days of the assignment date of a hearing panel, the panel chair shall conduct a pre-hearing conference to accomplish the following objectives:

(a) simplification of the issues;

(b) necessity of amendment to the pleadings;

(c) establishment of a discovery timetable;

(d) identification of anticipated witnesses and the exchange of reports of anticipated expert witnesses;

(e) identification and exchange of copies of anticipated exhibits;

(f) the possibility of obtaining:

(i) stipulations of fact;

(ii) stipulation of the admissibility of exhibits;

(g) such other matters as may expedite the hearing;

(h) establish a final hearing date.

At the discretion of the panel chair, a pre-hearing conference may be held by telephone, and may be continued from day to day. The hearing date shall be no more than one hundred fifty days following the date of assignment.

The Board shall adopt a form for use in a pre-hearing conference as well as an entry setting the conference time.

(2) Continuances of the hearing date shall not thereafter be granted due to counsel’s or respondent’s scheduled appearance before any state court or public agency, except the Supreme Court of Ohio or this Board as set forth in Rule 41(B)(2) of the Rules of Superintendence for the Courts of Ohio.

(B) Submission of Panel Reports

(1) The report of the panel for all hearings not conducted on an expedited basis shall be submitted to the full Board within forty days of the filing of the transcript for consideration at the next regularly scheduled meeting of the Board. For good cause shown, the Secretary, at the request of the panel chair, may extend the date for the filing of the hearing panel report with the Board.

(2) To be considered at the Board meeting, the panel report should be submitted to the Secretary at least seven days prior to that date.

(C) Failure by the Board to meet the time guidelines set forth in Section 9 of this rule shall not be grounds for dismissal of the complaint.

 

 

Comments are closed.