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Chilling advocacy

Every lawyer has a judge he'd rather not appear in front of.  There's bad blood:  something was said that was interpreted the wrong way, or maybe the lawyer was a little too zealous in his advocacy.  That's not a big deal here in Cuyahoga County.  There are 34 judges, and you can literally go years without having anything in front of a particular one.

I've often wondered what it would be like to practice in a small county.  I guess it'd be a real problem if you pissed off the only judge on the bench.

Robert Bright could tell you all about that.

Bright is a lawyer in Gallia County.  The county contracted with a non-profit corporation to provide representation for indigent defendants, and the corporation hired Bright to do that.  On July 25, 2011, he appeared before Judge David Dean Evans, the only common pleas judge in the county, to do a plea for a client.  The client balked, but then seconds later announced that he would take the deal.  Evans refused, stating "we're not going to play games," and set the case for trial.

After Bright and the prosecutor met with Evans in his chambers three days later to persuade him to accept the plea, to no avail, Bright filed a "Motion to Accept Plea."  He criticized several other policies of Evans, like his "blanket policy of a 'drop dead date' concerning plea agreements," his refusal to accept Alford or no contest pleas, and argued that the refusal to accept the plea in this case was an abuse of discretion because it was "arbitrary and unreasonable."  While the language was forceful - he called Evans' acts "unconscionable" - he made no charges of ethical impropriety.

Evans' response was immediate.  Two days after Bright filed the motion, Evans filed a grievance against him with Disciplinary Counsel.  But he didn't stop there.  He removed Bright from the case.

And he didn't stop there.  The following day, Evans filed journal entries in the other sixty-three felony cases Bright was handling, removing him from those as well, because Bright, by filing the motion, had created a "conflict of interest with the Court."

So what do you do if you're a corporation that has hired a lawyer to appear for indigent defendants who can no longer appear for indigent defendants?  You fire him.  And that's what the corporation did. Bright's advocacy for his client cost him his job.

But you're saying, surely there's something wrong with that.  And you'll be buoyed to know that there is.  Bright filed a grievance against Evans with the Ohio State Bar Association.  Evans and the Association submitted a consent-to-discipline agreement stipulating to a public reprimand.  Not good enough, said the Board of Commissioners on Grievances and Discipline, and sent it back for hearing.  That resulted in a jointly-recommended six-month stayed suspension, which the Board approved.  Not good enough, said the Supreme Court:  citing the harm caused to Bright, let alone to his clients, the justices issued a per curiam opinion - the legal equivalent of phoning it in anonymously - imposing a one-year suspension on Evans. 

All of it stayed. 

It still wasn't over.  Bright filed a Federal lawsuit against Evans and the corporation, and while the district judge dismissed the corporation, he rejected Evans' claim that he was entitled to absolute judicial immunity.  But last June, the 6th Circuit reversed.  The opinion began by noting that "there is no debate that Judge David Dean Evans failed to meet the minimum expectations for members of the judiciary," and found his conduct "worthy of censure," "petty, unethical, and unworthy of his office," and "unprofessional and misguided," and that "by operating in such an unreasonable manner, Judge Evans has brought dishonor on himself and his position."  It nonetheless found that finding for Evans was necessary because it "preserves the independent judiciary."

There's talk about this going up to the Supreme Court, and that may be wise.  It's difficult to imagine an outcome more chilling to a lawyer's ability and willingness to advocate for his client.  There was absolutely nothing improper about the motion Bright filed.  (Disciplinary counsel dismissed the grievance Evans had filed against Bright.)  And yet he lost his job over it, while Evans kept his.  

The Ohio Supreme Court based its decision to double the sanction from a six-month stayed suspension to a one-year stayed suspension on the harm that Evans' action had caused Bright and his clients.  They should have gone farther, and considered the harm beyond that:  the harm that some other lawyer may be more hesitant, less zealous, in his representation of a client after seeing what happened here.

There is, of course, the little matter of the "independent bar."


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