The Ohio Supreme Court today suspended a Cincinnati-area attorney for providing assistance and poor advice to a man who violated a civil protection order and was sentenced to 90 days in jail.

The Supreme Court issued a two-year suspension to John W. Hauck of Milford with the second year stayed on conditions. The Court added a requirement that if he is reinstated to the practice of law, Hauck must serve a period of monitored probation. Hauck had challenged the allegation that he violated the rules governing Ohio attorneys claiming he helped the man as a friend and was not his lawyer.

In a per curiam opinion, the Court found that by allowing Richard Ellison to send Ellison’s parents a letter on Hauck’s attorney letterhead, Hauck not only assisted in violating a civil protection order obtained by Ellison’s parents, but also violated the attorney rules of conduct.

Client Has Troubled Family History
In 2004, Ellison entered the home of his mother and stepfather claiming he wanted to talk to them about longstanding family problems. He possessed duct tape, two pairs of handcuffs, a hammer, and a change of clothing when he confronted them. Ellison injured his stepfather as the man tried to leave the house. Ellison pleaded guilty to charges of aggravated burglary, kidnapping, and abduction and was sentenced to six years in prison.

In anticipation of her son’s early release, Ellison’s mother obtained a civil protection order (CPO) from Hamilton County Domestic Relations Court in 2010 that prohibited Ellison from having contact with his parents for five years. The CPO barred contact by several means, including communications “through another person.”

Hauck met and befriended Ellison in September 2012 and they began to discuss a letter that Ellison wanted to send to reconcile with his estranged parents.

Hauck Assists With Reconciliation Letter
After months of discussion with Hauck, Ellison began drafting a letter in late 2013 or early 2014 with the hope of reconciling with his parents. Hauck encouraged its writing, and he offered advice about the wording and content. Hauck also suggested that Ellison request that his parents ask the domestic court to terminate the CPO.

Ellison knew the CPO prevented him from directly contacting his parents and also was concerned they would not open a letter with his return address. He asked to use Hauck’s letterhead and signature so that it appeared to be from the attorney. Hauck was reluctant to use his regular office letterhead, and Ellison designed a letterhead with Hauck’s name and  title as an “attorney at law.” Hauck agreed to edit, print, and sign the letter. While identified as an attorney, Hauck added a disclaimer in the body of the letter stating that he was not acting as an attorney in the matter, but “strictly as a friend and a Christian who wants to help.”

Ellison mailed the letter in March 2014, unaware his stepfather had died in 2010, and days after it was sent, he was arrested and charged for violating the CPO. Unable to post bond, Ellison was jailed until the pending trial. Hauck used his attorney identification card to visit Ellison in jail and spoke to him by telephone. Hauck testified that the purpose of his communications were to determine if he could represent Ellison, but realized he could not because the prosecutor might call him as a witness. While the trial was pending, Hauck wrote three letters to the arresting officer on Ellison’s behalf, but he did not obtain approval from Ellison or Ellison’s court-appointed attorney to send them.

Potential Criminal Charge Against Hauck Dropped
An assistant county prosecutor assigned to Ellison’s case indicated that Hauck could have been charged with complicity for his role in Ellison’s CPO violation, and when Hauck invoked his Fifth Amendment right against self-incrimination, the trial court granted him immunity from criminal prosecution so that he could be compelled to testify against Ellison. Ellison then agreed to plead guilty to a lesser charge of attempt to violate a CPO and served about two months in jail.

The Cincinnati Bar Association filed a complaint against Hauck in 2014 based on the letter he sent on Ellison’s behalf. The bar association charged that Hauck violated several rules of professional conduct, including failing to provide competent representation, committing illegal acts, practicing while not in good standing, and engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.

Hauk has faced prior disciplinary actions. In 2011, he was suspended from practicing law for 12 months, with six months stayed on conditions, for several violations of professional conduct rules. He was found in contempt for not abiding by the imposed conditions, and the Court required he serve the full one-year suspension. He was suspended later in 2011 for failing to renew his two-year registration, but was reinstated in November 2012.

Hauck objected to the bar association’s charges, claiming that Ellison was not his client and that his assistance with the letter did not form an attorney-client relationship.

Board Finds Hauck Provided Legal Assistance
During a Board of Professional Conduct panel hearing, Hauck testified that while he knew a CPO had been issued against Ellison at the time they discussed drafting a letter, he claimed he did not know and made no effort to ascertain the content of the letter. However, recorded conversations from a jailhouse phone call contradicted Hauck’s statement, and the board found Hauck had reviewed the order and still believed it was appropriate to send the letter. The board found Hauck’s holding himself out as an attorney imparted an air of credibility in the letter, and he acted as Ellison’s attorney by signing the letter as well as providing him with time, advice, and encouragement to send it.

The Court’s opinion noted the board expressed shock about Hauck’s poor advice and lack of judgment because Ellison had made him aware of his troubled relationship with his mother and that she had obtained a CPO against him. Ellison had also testified he believed Hauck was acting as his attorney, and that if Hauck advised him not to send the letter, he would have followed the advice.

The board concluded that Hauck failed to provide competent representation by not realizing the impact violating the CPO would have on Ellison, and that he committed an illegal act when he helped draft the letter. The attempt to deceive Ellison’s parents by signing the letter on Hauck’s letterhead violated the rule against engaging in deceitful conduct, the board concluded. And Hauck substituting his own judgment rather than abiding by the CPO violated the rule against prejudicing the administration of justice. Hauck also admitted that in 2013 and 2014 he had not registered as an Ohio attorney, and while not under formal suspension he admitted that his continued practice of law  while not in good standing violated professional regulations in this state.

Hauck Challenges Constitutionality of Findings
The Court affirmed the board’s rejection of Hauck’s claims that he was not acting as Ellison’s attorney when he helped him with the letter, and that he did not know the CPO prohibited the communication with Ellison’s parents.

Hauck also argued to the Court that the board’s findings violated the U.S. Constitution’s First Amendment and the due process clauses of the U.S. and Ohio constitutions. Hauck contended was he cannot be found to have violated professional rules if the violation is based on an unconstitutional order, and he said the CPO’s communication restrictions were unconstitutional.

The opinion stated that Hauck did not challenge the validity of the CPO at the time he assisted Ellison with violating the order, and rejected his right to challenge its constitutionality in a later disciplinary proceeding.

In considering a sanction against Hauck, the Court noted the board found he did not act with a dishonest or selfish motive, cooperated with the disciplinary proceeding, and presented evidence of his good character. The board also considered Hauck’s prior discipline, the multiple offenses committed, his refusal to admit the wrongful nature of his action, and the harm he caused to vulnerable people, including members of Ellison’s family and to Ellison, who spent 90 days in jail.

Court Troubled by Letter
The opinion noted the board’s hearing panel was troubled by the content of Ellison’s letter, describing it as “offensive and accusatory,” rather than conciliatory, and that Hauck failed to appreciate that it would be inappropriate to send even if a CPO did not prohibit it.

“While appreciating Hauck’s goal of reuniting Ellison with his mother, the panel believed that the letter they sent to his parents could be seen by a reasonable person only as making matters worse. And the panel expressed true dismay that Hauck could counsel his client to send that letter without any appreciation of how it would be perceived by the recipients,” the Court stated.

The board recommended that the Court indefinitely suspend Hauck with reinstatement subject to conditions. Hauck argued that an indefinite suspension is too punitive, and that he should be commended – not blamed – for following his Christian beliefs by trying to help the family.
The Court stayed the second year of his suspension on the condition that he submit to a mental-health evaluation conducted by the Ohio Lawyers Assistance Program and comply with any treatment recommendations resulting from it, pay Ellison $150 in restitution, serve one year of monitored probation if reinstated, and engage in no further misconduct.

Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer, Terrence O’Donnell, Sharon L. Kennedy, Judith L. French, and William M. O’Neill concurred in the opinion. Justice Judith Ann Lanzinger concurred in judgment only.

2016-0260. Cincinnati Bar Assn. v Hauck, Slip Opinion No. 2016-Ohio-7826.

View oral argument video of this case.

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