This post examines an opinion recently issued by the Supreme Court of Ohio in a “[l]awyer disciplinary proceeding.” Disciplinary
Counsel v. Brockler, 2016 WL 744412 (2016). If you are interested, you can
read more about the rules of professional conduct that govern lawyers in the
state of Ohio and the process of filing a complaint against a lawyer (or a
judge) here. And you can read more about
the Ohio Office of Disciplinary Counsel here.
Getting back to the case at hand, the opinion this post examines
was issued by the Ohio Supreme Court on February 25 of this year. Disciplinary Counsel v. Brockler, supra. The
court issued the opinion in the disciplinary proceeding that was instituted
against “Aaron James Brockler of Lakewood, Ohio”. Disciplinary
Counsel v. Brockler, supra. The opinion begins by outlining how, and why,
that proceeding was instituted:
Respondent, Aaron
James Brockler of Lakewood, Ohio, Attorney Registration No. 0078205, was
admitted to the practice of law in Ohio in 2004. In an April 7, 2014 complaint,
relator, disciplinary counsel, charged Brockler with engaging in professional
misconduct while he served as the assistant Cuyahoga County prosecutor assigned
to a murder case.
Specifically, relator
alleged that while investigating the shooting death of Kenneth `Blue’ Adams,
Brockler created a fictitious Facebook account and used it to contact the alibi witnesses of Damon Dunn, who had been indicted for the murder.
The parties entered
into stipulations of fact and submitted 15 stipulated exhibits. After a two-day
hearing, a panel of the Board of Professional Conduct issued a report finding
that Brockler's use of the fictitious Facebook account to contact the alibi
witnesses involved dishonesty, fraud, deceit, or misrepresentation, and that it prejudiced the administration of justice. It recommended, however, that we
dismiss an alleged violation arising from certain statements that Brockler made
to the media.
Disciplinary Counsel
v. Brockler, supra.
The Supreme Court’s opinion goes on to explain that
[b]efore he was indicted, Dunn denied
any involvement in Adams's death and told Cleveland police that at the time of
the murder, he was with his girlfriend, Sarah Mossor, and her friend Marquita
Lewis. Brockler did not believe Dunn's alibi was true, but Mossor and Lewis
refused to talk with him on numerous occasions when he identified himself as
the assistant prosecutor assigned to the case.
As part of his investigation, Brockler
listened to recordings of telephone calls Dunn had made from the Cuyahoga
County Jail. On the morning of December 14, 2012, he listened to a recording of
a heated conversation in which Dunn and Mossor argued over Dunn's fear that
Mossor would not be a reliable witness and Mossor's belief that Dunn had not
been faithful to her. Mossor suspected Dunn had had a romantic relationship
with a woman named `Taisha’ and indicated that if her suspicion was true, she
would end her relationship with Dunn. Believing Mossor's relationship with Dunn
was near a breaking point, Brockler saw an opportunity to exploit her feelings
of distrust and get her to recant her support for Dunn.
Disciplinary Counsel
v. Brockler, supra.
The court’s opinion goes on to explain that,
[r]ecalling a Facebook ruse he had used
in a prior case, Brockler planned to create a fictitious Facebook identity to
contact Mossor. He attempted to obtain assistance from several Cleveland police
detectives and the chief investigator in the prosecutor's office, but they were
not available. Believing time was of the essence, Brockler decided to proceed
with the Facebook ruse on his own approximately one hour after he heard the
recording of Mossor and Dunn's conversation. He created a Facebook account
using the pseudonym `Taisha Little,’ a photograph of an African–American female
he downloaded from the Internet, and information he gleaned from Dunn's
jailhouse telephone calls. He also added pictures, group affiliations, and
`friends’ he selected based on Dunn's telephone calls and Facebook page.
Posing as Little, Brockler
simultaneously contacted Mossor and Lewis in separate Facebook chats. He
falsely represented that Little had been involved with Dunn, that she had an
18–month–old child with him, and that she needed him to be released from jail
so that he could provide child support. He also discussed Dunn's alibi as
though it were false in an attempt to get Mossor and Lewis to admit that they
were lying for Dunn (or would lie for him in the future) and to convince them
to speak with the prosecutor.
After chatting for several hours,
Brockler sensed that Mossor and Lewis were suspicious, so he shut down the chat
and deleted the fictitious account. He testified that he printed copies of the
chats and placed them in a file—with the intent to provide copies to defense
counsel—before he deleted the account, but those copies were never found. He
attended five pretrial conferences from January through April 2013 but did not
disclose the circumstances or content of his conversations with Mossor or
Lewis.
Disciplinary Counsel
v. Brockler, supra. You can, if you are interested, read more about
Brockler’s tactic in the news stories you can find here, here and here.
Getting back to the Supreme Court’s opinion, it goes on to
explain that Brockler was
scheduled to take an extended medical
leave beginning April 16, 2013, and assistant prosecutor Kevin Filiatraut was
assigned to handle the Dunn case in his absence. Brockler gave his file to
Filiatraut, reviewed the case with him, and attended a pretrial conference with
him. Brockler also disclosed that he might need to be a witness at trial
because both Mossor and Lewis had told him they would not support Dunn's alibi,
although they were afraid to say so in court. Brockler did not disclose how he
obtained that information.
Disciplinary Counsel
v. Brockler, supra (emphasis in the original).
The opinion then goes on to explain what happened next:
On the second day of Brockler's leave
and less than one week before Dunn's trial, a police detective gave Filiatraut
several documents, including a transcript of Lewis's chat with `Taisha Little’
(obtained from Lewis) and Lewis's written statement about the chat. Filiatraut
immediately made the documents available to defense counsel and began to
investigate Little.
Although Filiatraut quickly informed
Brockler about this new information, Brockler waited nearly three weeks to
disclose that he was `Taisha Little.’ Upon learning of Brockler's ruse,
Filiatraut reported this information to his superiors. The prosecutor's office
withdrew from the case and the court appointed the attorney general to serve as
a special prosecutor. Shortly after Brockler returned from his medical leave in
June 2013, his employment was terminated.
Soon thereafter, Brockler spoke with
reporters from the Cleveland Plain Dealer and a local
television affiliate in response to Cuyahoga County Prosecuting Attorney
Timothy McGinty's statements that Brockler was fired for his unethical conduct
in creating false evidence, lying to witnesses and another prosecutor, and
damaging the prosecution's chances in a murder case in which an innocent man
was killed at work.
The subsequently published article and
broadcasted interview included statements by Brockler—which he does not
dispute—to the effect that (1) prosecutors have long engaged in ruses to obtain
the truth, (2) his firing was an overreaction because he only did what the
police should have done, (3) he engaged in an investigative ruse to uncover the
truth and keep a murderer behind bars, (4) the public was better off because of
his actions, (5) if he had not taken these actions, a murderer might be walking
the streets, (6) he promised the victim's mother that he would not let a
horrible killer walk out of the courthouse to kill someone else, and (7)
McGinty chose to follow the technical rules of ethics, while he chose to
protect the public.
Disciplinary Counsel
v. Brockler, supra. The opinion also
notes that “[a]pproximately one year after Brockler's termination, Dunn was
convicted of aggravated murder, murder, felonious assault, and having weapons
while under disability.” Disciplinary
Counsel v. Brockler, supra.
The Supreme Court’s opinion then returns to the legal ethics
issue, noting that
Brockler admitted that the Facebook
ruse violated the plain language of [Ohio Professional Conduct Rule] 8.4(c)
(prohibiting a lawyer from engaging in conduct involving dishonesty, fraud,
deceit, or misrepresentation), but he urged the board to carve out an exception
for `prosecutorial investigation deception.’
Noting that a comment to Professional
Conduct Rule 8.4 already recognizes an exception for lawyers who supervise or
advise nonlawyers about lawful covert investigative activities, and that this
court has found in two cases that lawyers in private practice violated the analogous
provisions of DR 1–102(A)(4) by personally engaging in investigatory
deceptions, the board refused to carve out a broader exception to the
rule. See Professional Conduct Rule 8.4, Comment 2A; Columbus
Bar Assn. v. King, 84 Ohio St.3d 174, 702 N.E.2d 862
(1998) (finding that two attorneys engaged in dishonest conduct by
conspiring for one of them to place a phone call while posing as someone else
in order to generate evidence in furtherance of a client's case); Cincinnati
Bar Assn. v. Statzer, 101 Ohio St.3d 14, 800 N.E.2d 1117, ¶
17 (finding that an attorney engaged in dishonesty, fraud, deceit, or
misrepresentation when she intimidated a deposition witness by creating the
false impression that she possessed compromising personal information that could
be offered as evidence).
Instead, the board found that Professional
Conduct Rule 8.4(c) requires an assistant prosecutor to refrain from
dishonesty, fraud, deceit, or misrepresentation when personally engaging in
investigatory activity and that Brockler's Facebook ruse therefore violated the
rule.
Disciplinary Counsel
v. Brockler, supra.
(You can, if you are interested, find the Ohio Rules of
Professional Conduct, which are the rules that govern ethical lawyer conduct
and that define improper conduct, here.)
The Supreme Court then took up the issue of the sanction(s)
that should be imposed on Brockler for his violation of Rule 8.4(c). Disciplinary
Counsel v. Brockler, supra. It began
that analysis by explaining that
[w]hen imposing sanctions for attorney
misconduct, we consider relevant factors, including the ethical duties that the
lawyer violated and the sanctions imposed in similar cases. Stark Cty.
Bar Assn. v. Buttacavoli, 96 Ohio St.3d 424, 775 N.E.2d 818, ¶ 16. In
making a final determination, we also weigh evidence of the aggravating and
mitigating factors listed in Gov.Bar R. V(13).
As an aggravating factor, the board
found that Brockler's deceptions and misrepresentations in his contacts with
Mossor and Lewis resulted in multiple violations of Prof.Cond.R. 8.4(c) and
(d), though it treated them as a single instance of misconduct. See Gov.BarR. V(13)(B)(4). The board also found that his extrajudicial statements to the
media, deflecting blame for his own misconduct to the police department and the
prosecutor's office, undermined the public's confidence in the criminal-justice
process. See Gov.Bar R. V(13)(A) (requiring the board to
consider all relevant factors in determining the appropriate sanction for a
lawyer's misconduct).
In mitigation, the board found Brockler
did not have a prior disciplinary record, made a full and free disclosure and
cooperated in the disciplinary process, submitted numerous letters attesting to
his good character and reputation for honesty, and acknowledged that the loss
of his “dream job” was a form of penalty. See Gov.Bar R.V(13)(C)(1), (4), (5), (6). Although Brockler's use of deception violated core
ethical values, the board also found he was not motivated by self-interest,
because he honestly—albeit erroneously—believed that his covert use of Facebook
was an effective and acceptable tactic akin to more traditional investigative
tactics such as staged drug buys and the use of undercover informants. See Gov.BarR. V(13)(C)(2).
Disciplinary Counsel
v. Brockler, supra.
The Supreme Court went on to explain that
[d]espite advocating for a
public-policy exception for deceptive prosecutorial investigation tactics,
Brockler admitted that his conduct violated the plain language of Prof.Cond.R.
8.4(c) and argued for no more than a stayed six-month suspension. Relator, in
contrast, argued that Brockler should serve an actual suspension from the
practice of law, though he did not suggest any specific duration.
The board acknowledged that misconduct
involving dishonesty, fraud, deceit, or misrepresentation generally warrants an
actual suspension from the practice of law. See,
e.g., Disciplinary Counsel v. Karris, 129 Ohio St.3d 499, 954
N.E.2d 118, ¶ 16; Disciplinary Counsel v. Fowerbaugh, 74 Ohio
St.3d 187, 658 N.E.2d 237 (1995), syllabus.
But the board also recognized that we
may deviate from that rule in the presence of significant mitigating
evidence. See Disciplinary Counsel v. Potter, 126 Ohio
St.3d 50, 930 N.E.2d 307 (absence of a prior disciplinary record, efforts
to rectify the consequences of the misconduct, full cooperation in the
investigation, self-reporting, and evidence of good character and reputation
apart from the charged misconduct sufficient to stay 12–month suspension for
violating fiduciary duty as the executor of an estate); Disciplinary
Counsel v. Niermeyer, 119 Ohio St.3d 99, 892 N.E.2d 434 (absence
of prior misconduct, self-reporting, cooperation in the disciplinary process,
acceptance of responsibility for misconduct, and evidence of good character and
reputation sufficient to stay 12–month suspension for altering a document to
make it appear that it had been timely filed). See also King, 84
Ohio St.3d 174, 702 N.E.2d 862 (imposing a fully stayed one-year
suspension based upon the presence of significant mitigating evidence); Statzer, 101
Ohio St.3d 14, 800 N.E.2d 1117(imposing a fully stayed six-month suspension
based upon the presence of significant mitigating evidence).
Disciplinary Counsel
v. Brockler, supra.
The court then outlined the sanction to be imposed on
Brockler:
Noting the substantial mitigating
factors present in this case—including the board's finding that the misconduct
was an isolated incident in an otherwise notable legal career—the board
recommends that we suspend Brockler for one year, fully stayed on the
conditions that he engage in no further misconduct and that he pay the costs of
this action.
Having determined that the board's
findings of fact and conclusions of law are supported by the record and the
law, we adopt the board's report, find that Brockler's use of a deceptive
investigative technique to contact Dunn's alibi witnesses violated Prof.Cond.R.
8.4(c) and (d), and dismiss the alleged violation of Prof.Cond.R. 3.6(a). We
also find that a one-year suspension, fully stayed on the conditions
recommended by the board, is the appropriate sanction for Brockler's
misconduct.
Accordingly, Aaron James Brockler is
suspended from the practice of law in Ohio for one year, fully stayed on the
conditions that he engage in no further misconduct and pay the costs of this
proceeding. If he fails to comply with the conditions of the stay, the stay
will be lifted, and he shall serve the full one-year suspension. Costs are taxed
to Brockler.
Disciplinary Counsel
v. Brockler, supra.
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