Ohio Reject Mandamus For Respondent Seeking Bar Investigatory Records
The Ohio Supreme Court affirmed the denial of mandamus relief to an attorney who sought the records of her two bar discipline matters.
Appellant, Georgianna Parisi, appeals the judgment of the Second District Court of Appeals denying her petition for a writ of mandamus against appellees, the Dayton Bar Association and the Dayton Bar Association Certified Grievance Committee. Because Parisi did not utilize the correct vehicle, Sup.R. 44 through 47, to seek to obtain the requested records, we affirm the judgment of the court of appeals.
The request
In 2016, Parisi sent a letter to the executive director of the Dayton Bar Association requesting “any and all records” concerning her in the bar association’s possession, pursuant to R.C. 149.43, Ohio’s Public Records Act. She specifically requested:
- [a]ny and all communications related to and/or concerning me, including communications by letter, phone, email, text, voice mail, and the like; and 2. [a]ny and all documents related to and/or concerning me.
The requests involved two bar discipline matters.
The bar association denied an obligation to provide the records and later declined to honor a full-file demand.
The attorney sought mandamus relief.
The court of appeals granted summary judgment in favor of the bar association and the grievance committee, denied Parisi’s cross-motion, and denied the writ of mandamus.
Here
Parisi appealed to this court. She also filed a “motion to elect representation.” We find her motion to be without merit. Furthermore, we conclude that because Parisi failed to seek to obtain the attorney-discipline records pursuant to Sup.R. 44 through 47, the court of appeals correctly granted summary judgment in favor of the bar association and the grievance committee and correctly denied the requested writ of mandamus.
As to the election issue
Parisi is essentially seeking to disqualify opposing counsel. She alleges that Freund Freeze’s representation of the bar association and the grievance committee is directly adverse to its prior clients, Ruffalo, Wildermuth, and Beck. Parisi posits the existence of an unwaivable conflict, in violation of Prof.Cond.R. 1.7 (prohibiting a lawyer from accepting or continuing a client’s representation if that representation will be directly adverse to another client), because those individuals “may oppose [Parisi’s] public records request, not on legal grounds, but because they personally wish to shield themselves from additional unethical behavior being revealed.” We find Parisi’s motion to be without merit.
Freund Freeze represents only the bar association and the grievance committee, the only other parties to this action besides Parisi. Because the other individuals that Parisi mentions are not parties to this action, there is no basis for Freund Freeze to “elect representation” in this case.
Further, Parisi is not a client of Freund Freeze, and she has not identified any obligations or responsibilities that could serve as a basis for opposing counsel’s disqualification. Therefore, Parisi lacks standing to assert that Freund Freeze has a conflict of interest.
On the merits of seeking the records
To determine the appropriate vehicle, we consider the nature of the records requested. Generally, if the records requested are held by or were created for the judicial branch, then the party seeking to obtain the records must submit a request pursuant to Sup.R. 44 through 47. See Sup.R. 44(B) (defining “court record” as including case documents and administrative documents); Sup.R. 44(C)(1) (defining “case document” generally as a document “submitted to a court or filed with a clerk of court in a judicial action or proceeding”); Sup.R. 44(G)(1) (defining “administrative document” generally as a document “created, received, or maintained by the court to record the administrative, fiscal, personnel, or management functions, polices, decisions, procedures, operations, organization, or other activities of the court”); Husband at ¶ 6. If the party is not seeking to obtain the records through the correct vehicle, the party is not entitled to the requested records in that action. See Laria at ¶ 8; Husband at ¶ 6.
Discipline records
Attorney-discipline matters are decided exclusively by this court, as we have original jurisdiction over the discipline of persons admitted to the bar and all other matters relating to the practice of law…
While these entities, especially the certified grievance committees, function somewhat independently from this court, the documents prepared and created in attorney discipline cases by or for these entities must be considered records of this court for purposes of disclosure. That is because this court is the ultimate arbiter of attorney discipline, Cincinnati Bar Assn. v. Powers, 119 Ohio St.3d 473, 2008-Ohio-4785, 895 N.E.2d 172, ¶ 21, and we have the unique and complete responsibility, as designated by Article IV, Sections 2(B)(1)(g) and 5(B) of the Ohio Constitution, to regulate all matters related to the practice of law. Therefore, any documents prepared in attorney-discipline cases, like those requested by Parisi, may be sought only through a request made pursuant to Sup.R. 44 through 47.
KENNEDY, J., concurs in part and concurs in judgment only in part, with an opinion joined by DEWINE and STEWART, JJ.
While agreeing on the disqualification issue
I write separately because I would not consider whether—and cannot subscribe to the majority’s view that—the public-access provisions of the Rules of Superintendence for the Courts of Ohio, Sup.R. 44 through 47, apply to the investigatory materials of a bar association’s certified grievance committee. The court of appeals did not consider this issue in the first instance, Parisi expressly disclaimed reliance on the Superintendence Rules as supporting her claim, and the majority gives no persuasive explanation of how a certified grievance committee of a private, voluntary bar association is “the Supreme Court” within the meaning of Sup.R. 44 through 47. See Sup.R. 44 (“Sup.R. 44 through 47 apply to the Supreme Court”). And contrary to the majority’s assumption that the Superintendence Rules preempt the Public Records Act, R.C. 149.43, the constitutional grant of authority to this court to adopt rules of superintendence for the courts of Ohio does not provide that those rules supersede the enactments of the General Assembly; therefore, Parisi’s failure to assert a right to court records under the Superintendence Rules in addition to the Public Records Act does not foreclose relief. Lastly, by treating the Dayton Bar Association’s certified grievance committee as an arm of this court, the majority sows confusion regarding whether there is any judicial means to compel a certified grievance committee to release public records—a court of appeals lacks authority to issue a writ of mandamus against this court or its adjuncts, and this court may not direct a writ against itself.
Nonetheless, I concur in the court’s judgment affirming the judgment of the court of appeals, because the records that Parisi seeks do not fit within the meaning of “public record” as defined by R.C. 149.43(A)(1)(v).
While the public records vehicle was the wrong car
The majority reasons that because this court has the constitutional authority to discipline attorneys, the documents prepared and created in attorneydiscipline cases by or for certified grievance committees “must be considered records of this court for purposes of disclosure” under Sup.R. 44 through 47. Majority opinion at ¶ 26.
That conclusion is a non sequitur. The fact that we have constitutional authority to discipline attorneys says nothing about whether a certified grievance committee maintains court records, either on our behalf or on its own.
Thus
Parisi’s petition sought records only under the Public Records Act, which does not require release of those records. Because Parisi is not entitled to relief based on the arguments she makes in this court, it is not necessary to go beyond those arguments to resolve this case. As the majority’s decision today demonstrates, reaching to answer questions that have not been the subject of adversarial briefing and lower-court consideration risks an ill-informed decision that may have unintended consequences. And here, the majority assumes that our Superintendence Rules preempt the enactments of the legislative branch, and it relies on a leap of logic to conclude that a bar association’s certified grievance committee is the custodian of this court’s records. The result will be confusion over where a person is to turn to compel the production of public records held by an entity that is in some way affiliated, however tangentially, with this court.
The preferable course would be to leave these issues for a day when parties preserve and present them for our review. Accordingly, although I would affirm the judgment of the court of appeals, I would do so for reasons different from those expressed in the majority opinion.
(Mike Frisch)