Sanction Imposed In E-Discovery Matter
Kathleen Maloney summarizes a discipline case on the Ohio Supreme Court web page
The Ohio Supreme Court today suspended Robert P. DeMarco for one year, with six months stayed, for making false statements to a Lucas County court.
While the lawyer disciplinary board had recommended a full one-year suspension, the Court determined in a 6-1 decision that a partial suspension was appropriate in this case.
Discovery Documents Not Given to Court While working on a civil case, DeMarco hired Jack Harper, a computer expert, in 2011. Lawyers for the defendants and DeMarco, who was representing the plaintiff, agreed to have Harper search the defendants’ electronic devices. Any possibly relevant documents were to be provided to the trial judge to inspect privately and to decide which materials should be sent to DeMarco.
Harper conducted the search, put the results on a disc, and gave it to DeMarco, who, disregarding the agreed-to protocol, reviewed the contents and decided none were helpful. He also neglected to submit the disc to the trial judge.
In March 2012, DeMarco told defense counsel at a pretrial conference that Harper had examined the documents and told him none were relevant to the case. After also denying to the defense that he had the disc, DeMarco called Harper and left a message indicating his lie to the court. DeMarco then gave the disc back to Harper.
Defense Requests Disc A few months later when the parties resolved the case, defense counsel asked Harper for the disc. The issue went before a court, and Harper said he had destroyed the disc. The court threatened to hold him in contempt. At a hearing, Harper testified that he had handed the disc over to DeMarco and later destroyed it after DeMarco told him the case was over.
DeMarco responded in the judge’s chambers and openly in court that he had never received the disc nor reviewed the contents. Harper stated that DeMarco had lied to the court in March 2012, but DeMarco claimed he never had lied and “would like to go outside with [Harper].” Harper then played the voicemail. The judge ended the hearing and later, with the defense counsel, alerted the Toledo Bar Association about DeMarco’s false statements.
Court Considers Whether Attorney Lacked Selfish Motive, Had Good Reputation During the disciplinary case, the parties agreed that DeMarco violated professional conduct rules, including knowingly making a false statement to the court and offering evidence that he knew was false. The Supreme Court agreed with the misconduct findings. But the Court disagreed with DeMarco’s request for a fully stayed one-year suspension.
“DeMarco engaged in a series of misrepresentations directly to the court in March and November 2012,” the per curiam opinion stated. “At the November 2012 show-cause hearing, he threatened to take his own expert ‘outside’ after the expert testified truthfully about giving the disc to DeMarco. And if Harper had not saved DeMarco’s voicemail, Harper might have been sanctioned by the court. Additionally, DeMarco admitted at the panel hearing that he was not remorseful for making the repeated misrepresentations until Harper played the voicemail.”
The disciplinary board had recommended an actual one-year suspension, and the Court noted that this type of conduct often leads to an actual suspension.
However, “the character references and character testimony indicate that his misconduct here was an aberration in an otherwise unblemished 45-year legal career,” the Court concluded. “We find that under these circumstances, staying a portion of the one-year suspension is consistent with prior cases.”
Justices’ Votes The majority opinion was joined by Justices Paul E. Pfeifer, Terrence O’Donnell, Judith Ann Lanzinger, Sharon L. Kennedy, Judith L. French, and William M. O’Neill.
Chief Justice Maureen O’Connor dissented and would have imposed the board-recommended suspension of one year with no stay.
2014-1738. Toledo Bar Assn. v. DeMarco, Slip Opinion No. 2015-Ohio-4549.
