Magistrate Reprimanded For Revolving Door Violation
The Ohio Supreme Court reprimanded a magistrate
In November 2017, relator, disciplinary counsel, charged Holben with judicial misconduct for failing to disqualify herself from three cases in which she had participated as a government lawyer prior to becoming a magistrate. Holben stipulated to the charged misconduct. After a hearing, a three-member panel of the Board of Professional Conduct dismissed one of the stipulated rule violations, found that Holben engaged in the remaining charged misconduct, and recommended that we publicly reprimand her. The board issued a report adopting the panel’s findings and recommended sanction, and neither party has objected to the board’s report.
The story
Prior to becoming a magistrate in December 2015, Holben served for nine years as an attorney for Franklin County Children Services. She has stipulated that in March and April 2016—less than six months into her new position as a juvenile-court magistrate—she presided over three cases in which she had previously participated personally and substantially as a lawyer for the agency. Holben also stipulated that she failed to properly seek the parties’ and attorneys’ waiver of disqualification.
For example, in one of those cases, Holben had represented children services for over two years in juvenile-court proceedings involving a mother with chronic drug-dependency issues. Holben had personally and substantially participated in the case by filing multiple motions regarding the custody of the mother’s two minor children, including a request to place the children in the custody of their maternal grandparents, and by appearing and arguing positions adverse to the mother in eight hearings, including an annual review hearing that resulted in the grandparents obtaining legal custody of one of the children.
In April 2016, children services suspected that the same mother was again using drugs and requested the juvenile court to grant the agency a temporary order of protective supervision for one of the children. Children services also filed a new complaint regarding the mother’s third child, who was only one year old. By that time, Holben had commenced her employment as a juvenile-court magistrate. Although Holben was not initially assigned to the case, the magistrate scheduled to preside over an April 29, 2016 preliminary hearing requested that she cover for him because he had formerly represented the father in the same proceeding. Despite Holben’s prior involvement in the case—and despite the fact that the juvenile court employed seven magistrates to handle these cases—Holben agreed to hear the matter.
When Holben commenced the preliminary hearing, the mother had not yet arrived. Holben disclosed to counsel that she had represented the agency on a different aspect of the case, but she did not request that the parties or counsel consider waiving her disqualification. Children services requested a temporary order of protective supervision regarding both children, which would have authorized the agency to investigate and monitor the circumstances of the home without removing custody from the mother. The attorney for children services specifically argued that the agency “would like to work with Mother” and noted that the mother had submitted to a drug screen, with negative results, since the filing of the new allegations.
The mother arrived late for the hearing, and Holben immediately recognized her. After the mother requested an attorney, Holben appointed the same attorney who had previously represented the mother in the case, although the attorney had not attended the hearing. Holben advised the mother that if she wanted her attorney present, she could request a continuance after counsel for the other parties had the opportunity to state their requests for temporary orders. But after hearing from the attorneys, Holben failed to give the mother an opportunity to request a continuance or respond to their arguments. Instead, Holben issued a temporary order placing custody of the one-year-old child with children services, which was contrary to the agency’s position at the hearing. According to the parties’ stipulations, Holben’s decision caused the mother to become extremely upset in the courtroom, and less than two weeks later, a different magistrate vacated Holben’s order and entered the order requested by the agency, which reunited the mother and child.
Reprimand is appropriate
By not disqualifying herself from cases in which she had participated personally and substantially as a government lawyer, Holben failed to promote public confidence in the independence, integrity, and impartiality of the judiciary. But she has since acknowledged the wrongfulness of her misconduct and appears dedicated to ensuring that it is not repeated. The board’s recommended sanction is appropriate in this case.
(Mike Frisch)