February 2006
Featured Disciplinary Case
Topic
Threatening criminal prosecution to obtain advantage in custody matter, stating or implying an ability to improperly influence a public official, and taking action on behalf of client merely to harass or maliciously injure another warrants a suspension from the practice of law.
Summary
Cuyahoga County Bar Ass’n v. Wise, No. 2005-0803 (Ohio February 22, 2006). Cleveland lawyer David M. Wise, who was licensed in Ohio in 1987, was suspended for one year with the last six months stayed on the condition the he not violate state ethics law. Wise represented a mother in a custody dispute over her minor child. Since birth, the child had been cared for by an aunt. The aunt petitioned a juvenile court to be awarded permanent custody. Wise's client and the client’s fiancé did not want the aunt to be involved and sought custody. After a hearing, the judge dismissed the aunt’s complaint for permanent custody but voiced concern about the child's well being. The judge ordered the Department of Children and Family Services to investigate whether the parents would put the child at risk. After the hearing, Wise advised the mother that she could take the child. Wise's client left the courtroom and drove to two different daycare centers at which the child had been enrolled. She could not find the child because the child was ill and in the care of another relative. Wise learned that his client had been unable to find her child. In response to the client’s anxiety over not finding the child, Wise telephoned the aunt’s employer, the Cleveland Police Department. He spoke to a police sergeant, one of the aunt's supervisors, and told him that he was representing a client in a custody dispute with the aunt and that his client had been awarded custody but that the child could not be located. He asked the sergeant to call the aunt and ask her to turn over the child. He said that if she did not turn the child over, kidnapping charges might be filed. The sergeant advised Wise that the aunt had not reported for duty that day or the day before, absences that the sergeant understood to be for family medical leave. Wise replied that the aunt had been in court the day before, a disclosure that caused the sergeant to question the aunt's explanation for her absences. Wise further told the sergeant that he knew "Bill Mason", the Cuyahoga County Prosecuting Attorney, and would personally go see him in order to get kidnapping charges filed. Later, the sergeant was able to reach the aunt and discussed Wise's concerns. The sergeant called Wise back and relayed that the aunt had the child. The sergeant also relayed the aunt's request that Wise communicate with her only through her lawyer. Wise asked the sergeant whether he knew where the child was. When the sergeant said that he did not, Wise said that he understood that there was a ‘code of silence’ among police officers. Wise then called Douglas Blackburn, the aunt's attorney. When he was told of the possible kidnapping charges, Blackburn explained to Wise that custody remained with the aunt until the juvenile court journalized its dismissal entry, which it had not yet done. Blackburn assured Wise that the aunt did not intend to run away with the child. Despite being given these assurances, Blackburn testified at the disciplinary hearing that Wise referred to his "good friend Bill Mason" in connection with pressing kidnapping charges. Blackburn also recalled that Wise had threatened to report the aunt's "misconduct" to another "friend," the city of Cleveland Safety Director. Wise warned Blackburn that, if Blackburn was lying to him about the aunt not running away:
[I]f I find out later on that that's not true, that you deceived me and [in] reliance upon your word I passed this information on to my client, I want you to understand something very clearly, you and I will have a serious problem man to man, not you and me and the courts, but you and I personally will have a serious problem on this issue…[D]o you understand me?
Formal disciplinary charges were lodged against him and Wise insisted that he did not intend to harass the aunt, did not threaten criminal charges to gain an advantage in the custody matter, and did not mean to imply that he could improperly influence public officials to take action adverse to the aunt. He claimed that merely tried to prevent the aunt from being prosecuted for kidnapping and at the same time ensure that no one absconded with the child. The Supreme Court of Ohio found his explanations implausible. The Court concluded that Wise had compromised his duty to promote confidence in the legal system and the legal profession and held that the misconduct harmed one of the legal system's most vulnerable victims, a litigant in family court. In imposing a suspension, the Court considered Wise’s failure to cooperate in the disciplinary proceeding was an aggravating factor. It ruled that lawyers are entitled to zealously defend themselves against charges of misconduct; however, they are no less bound by the standards of professionalism in disciplinary proceedings than any other. Therefore, Wise’s refusal to observe usual customs and courtesies justified the recommendation to enhance the sanction for his misconduct.
