Ex Parte Communication At Issue In Bar Proceeding

An interesting bar case will be heard on July 22 by the Ohio Supreme Court

Disciplinary Counsel v. Joan Jacobs Thomas, Case No. 2020-0467
Lorain County

A Lorain County attorney specializing in domestic relations law objects to a proposed public reprimand from the Board of Professional Conduct for sending a letter to a court staff attorney expressing concern about a court proceeding in which she had no direct involvement.

A three-member hearing panel of the board issued a split decision, recommending that the charges of rule violations by Joan Jacobs Thomas be dismissed . However, the full board agreed with the dissenting panel member’s assessment that Thomas violated the rule against making ex parte communications to a court. The board suggests that the Ohio Supreme Court publicly reprimand the lawyer.

Because of the COVID 19 pandemic, the Court will hear oral argument about the dispute by videoconference.

Attorney Learns about, Questions Custody Proceedings
Thomas represented Jessica Vealey in her divorce from Robert Vealey. The Vealeys had two minor children. While the divorce was pending, Robert married Donna Sterrick. The divorce decree named Jessica the residential parent and granted Robert visitation rights with his children. The decree prohibited Donna from being present in Robert’s home when his children were visiting, and she was barred from being involved in the children’s school, extracurricular, or medical matters.

After the divorce was final, Robert was found in contempt of court for failing to pay fees associated with the divorce. During a sentencing hearing for contempt, Robert testified that Donna was in the process of adopting a minor child.

Thomas, and her client, Jessica, were surprised by the announcement. Thomas was concerned because Donna was prohibited from having contact with her own stepchildren, and had been admonished by the court for her rude treatment of the guardian ad litem in the Vealey’s divorce who is an attorney in private practice. Donna posted negative comments about the attorney on the attorney’s firm’s Facebook page and filed a grievance against her with the local bar association.

Thomas searched clerk of court records and discovered that attorney David Bartos represented Donna in a private custody matter in which Donna would gain custody of a 6-year-old special needs child in the custody of Charles and Julia Duensing. The child was one of three siblings placed in foster care with the Duensings, who then adopted the three children.

Attorney Seeks Advice
Thomas describes herself as an advocate for children, and had concerns that a single attorney was involved in the matter, and there was no Family Court Services investigation or appointment of a guardian ad litem to ensure Donna’s adoption was in the best interest of the child. Thomas called the Office of Disciplinary Counsel for advice, and was told that she could not contact the court directly.

Thomas attended a monthly “brown bag” luncheon hosted by Lorain County Domestic Relations Judge Sherry Glass that was intended for informal discussions. Amy Barnes, Judge Glass’ staff attorney, was at the lunch. Thomas posed a hypothetical question to the judge that was essentially Donna’s proposed adoption, which was pending before Judge Glass.

Judge Glass explained her concerns about ex parte communications, and noted that her procedure was to use Barnes to filter those communications and take the appropriate actions.

Thomas then faxed a four-page letter to Judge Glass’ courtroom, sent to the attention of Barnes, and explained her concerns.

Bartos learned of the letter and contacted Thomas. Thomas refused to give Bartos a copy because she didn’t want Donna to have it and said she feared retaliation from Donna. Thomas told Bartos he could look at the letter at her office.

Barnes recommended to Judge Glass that a guardian ad litem be appointed and a Family Court Services inquiry opened. The judge imposed the recommendations, and ultimately the court found it was in the child’s best interest to allow Donna to obtain custody. Bartos complained that Thomas’ actions delayed the process by five months and increased Donna’s costs.

Board Finds Rule Violation
The board found Thomas violated the rule against ex parte communication, citing the dissenting panelist’s position that allowing the attorney to slip a message to a judge via her staff attorney without the parties in the case knowing about it suggests “a recognized channel of communications that exists.”

The board notes that allowing this process would lead to an “anything goes” system where parties in cases, attorneys, and anyone else could “lobby and influence the judge handling the case by sending communications” to the judge’s staff.

Rule Was Followed, Attorney Argues
In her objections to the proposed sanction, Thomas urges the Court to adopt the position of the panel majority and find that the board failed to demonstrate by clear and convincing evidence that she violated the rule prohibiting ex parte communications. Thomas claims she followed the suggestions of Judge Glass on how an attorney can raise an important issue with the court about a case when that attorney isn’t part the case.

Thomas also maintains the rule doesn’t exclude communicating to a judicial staff member.

Letter Violated Rule, Disciplinary Counsel Maintains
|The Office of Disciplinary Counsel counters that attorneys aren’t allowed to send ex parte communications to courts, and Thomas stated in her opening sentence in the letter to Barnes that the  letter was an ex parte communication. Thomas’ failure to allow Bartos or the Duensings to know about the recommended additional investigations is at the heart of the rule preventing undisclosed messages to the court, the disciplinary counsel maintains. Without knowing, the parties had no way to prepare a response to the information, the office asserts. The disciplinary counsel urges the Court to issue a public reprimand and send a strong message that such letters are inappropriate.

– Dan Trevas

(Mike Frisch)