Tuesday, Jan. 23, 2018
Paulette Kolosai, administrator of the Estate of Nicholas Giancola v. Haitham M. Azem, M.D. et al., Case no. 2016-1584
Eighth District Court of Appeals (Cuyahoga County)
State of Ohio v. Alexis Martin, Case no. 2016-1891
Ninth District Court of Appeals (Summit County)
State of Ohio v. Maurice Mason, Case no. 2017-0200
Third District Court of Appeals (Marion County)
Cincinnati Bar Association v. Justin E. Fernandez, Case no. 2017-1409
Hamilton County
Did Trial Court Improperly Send Nursing Home Wrongful Death Lawsuit to Arbitration?
Paulette Kolosai, administrator of the Estate of Nicholas Giancola v. Haitham M. Azem, M.D. et al., Case no. 2016-1584
Eighth District Court of Appeals (Cuyahoga County)
ISSUE: When a trial court orders arbitration and an appellate court reverses and remands for further proceedings, does the trial court violate the “law of the case” when it considers a renewed motion to compel arbitration with additional evidence?
BACKGROUND:
Nicholas Giancola resided at Walton Manor Health Center, a Cuyahoga County nursing home, and died on Dec. 31, 2011. His sister Paulette Kolosai, as administrator of the estate, sued Dr. Haitham M. Azem, the nursing home, and three Saber Healthcare entities, alleging wrongful death.
Walton Manor asked the trial court in August 2013 to stay the case proceedings and to order arbitration based on paperwork, which included an arbitration clause, that was submitted when Nicholas Giancola entered the nursing home. Walton Manor maintained that he signed the agreement, while Kolosai presented testimony from a former Walton Manor employee who said that Nicholas’ mother, Rose Giancola, signed the paperwork. Kolosai argued that Rose Giancola, who had since died, had no legal authority to enter an agreement on Nicholas’ behalf to pursue any disputes with the nursing home through arbitration.
The trial court determined that Rose Giancola signed the documents, and she had the authority to do so for her son. The case was moved to arbitration.
Appeals Court Considers Matter Twice
Kolosai appealed to the Eighth District Court of Appeals. In October 2014, the appeals court reversed the trial court’s decision and returned the case to the trial court for additional proceedings in line with the ruling.
Walton Manor renewed its motion to stay the case while it was sent to arbitration. Asserting that Nicholas Giancola signed the documents, the nursing home provided other paperwork with Rose Giancola’s signature for comparison and presented testimony from a handwriting expert. The trial court granted Walton Manor’s motion to send the case to arbitration in March 2015, finding that Nicholas, not Rose, Giancola signed the paperwork with the arbitration clause.
Kolosai appealed again to the Eighth District, contending that the dispute no longer could be arbitrated because of the appeals court’s original ruling. In a split decision, the court agreed and reversed the trial court, stating that the nursing home was attempting to re-litigate issues that had already been decided. The Eighth District noted in the first appeal that it concluded the arbitration agreement, executed by Rose, couldn’t be enforced because she didn’t have the authority to sign for Nicholas. The appeals court stated that the case should have gone forward on the trial court’s regular docket.
Walton Manor appealed the Eighth District’s second decision to the Ohio Supreme Court, which agreed to review the issue.
Nursing Home Asserts Arbitration Was Still Allowed, Given New Evidence
Walton Manor argues that the Eighth District’s ruling in Kolosai I didn’t resolve the arbitration issue or order the case directly to trial. Walton Manor notes that it provided new documents to the appeals court to assert that Nicholas, not Rose, Giancola had signed the nursing home paperwork. Though the Eighth District explained in Kolosai I that it couldn’t add materials to the record to decide the appeal, it found the documents “repudiated the rationale” for the trial court’s decision sending the case to arbitration based on Rose Giancola having the authority to sign, and signing, the paperwork.
When a case is remanded, the trial court begins from the point at which the error occurred. Walton Manor disputes the Eighth District’s decision in Kolosai II that the case should have been placed on the trial court’s regular docket to proceed on the merits. From the nursing home’s perspective, Kolosai I stated that the trial court erred by ordering arbitration based on Rose Giancola’s apparent authority to sign the nursing home paperwork with the arbitration clause. The case, then, should return to the point before the trial court ruled on the motion to compel arbitration, Walton Manor contends. The trial court had the authority to address matters relating to the arbitration agreement, including additional evidence about who signed the paperwork, Walton Manor states.
In Kolosai II, though, the Eighth District reversed the trial court’s decision based on the “law of the case doctrine.” The Ohio Supreme Court’s opinion in Nolan v. Nolan (1984) states that “the doctrine provides that the decision of a reviewing court in a case remains the law of that case on the legal questions involved for all subsequent proceedings in that case both at the trial and reviewing levels.”
Walton Manor argues that the Eighth District was mistaken in relying on the law-of-the-case doctrine. The doctrine prohibited the trial court after Kolosai I from reconsidering whether Rose Giancola was authorized to sign for her son because that was the issue considered by the appeals court, Walton Manor maintains. The nursing home argues that the ruling didn’t, however, bar the trial court from addressing, based on new evidence, whether Nicholas Giancola in fact signed the agreement. The doctrine wasn’t violated the second time the trial court heard the case because it ruled based on a different record and different issue, Walton Manor concludes.
Estate Administer Counters that Arbitration Was Prohibited on Remand
Kolosai responds that the Eighth District overturned only the trial court’s finding that Rose Giancola had the apparent authority to act on her son’s behalf. As a result, the arbitration agreement was unenforceable because she signed it without legal authority, and the case should have moved forward on the trial court’s docket, as the Eighth District ruled in Kolasai II, Kolosai asserts.
However, when Walton Manor renewed its motion to compel arbitration, newly asserting that Nicholas Giancola signed the documents, it contradicted the law of the case that already had been established, which was that Rose Giancola signed the arbitration paperwork without apparent authority, Kolosai states. In Kolosai’s view, the trial court was prohibited by the law-of-the-case doctrine from considering another motion for arbitration proceedings or any new evidence.
Because the Eighth District reversed the trial court’s holding about Rose Giancola’s authority to sign the documents, Kolosai argues that the case, on remand after Kolosai I, returned not to the point of reconsidering who signed the paperwork but to the point before the court’s determination of this authorization.
Kolosai also contends that the evidence used to support the argument that Nicholas signed the documents wasn’t new because it was in Walton Manor’s possession when the trial court considered the first motion requesting arbitration. The law-of-the-case doctrine bars both arguments that were fully pursued and those that were available to be pursued, Kolosai notes, citing Kolosai II. Because Walton Manor failed to present this evidence the first time, the trial court shouldn’t have considered the evidence after the case was remanded. The nursing home wasn’t permitted to re-litigate the issue, Kolosai maintains.
Regardless, Kolosai argues that the evidence clearly shows that Rose signed the paperwork. Not only did a nursing home employee testify that she witnessed Rose signing the documents, the nursing home’s paperwork for Nicholas includes a page with a box indicating that Rose signed his admission documents, Kolosai notes. Kolosai also questions the handwriting expert’s reliability and lack of bias. The trial court’s ruling after Kolosai I considered arguments not raised, erroneously interpreted the evidence, and was properly overturned by the Eighth District in the second appeal, Kolosai concludes.
- Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Walton Manor Health Care Center et al.: Leslie Jenny, 216.912.3805
Representing Paulette Kolosai, administrator of the estate of Nicholas Giancola: Mark DiCello, 440.953.8888
Did Juvenile Court Adhere to State’s Safe Harbor Law Before Transferring Teen to Adult Court?
State of Ohio v. Alexis Martin, Case no. 2016-1891
Ninth District Court of Appeals (Summit County)
ISSUES:
- Once a juvenile court determines that a defendant is a human trafficking victim, must the court appoint a guardian ad litem, consider the child’s trafficking status, and determine whether the delinquency complaint is related to the child’s victimization, and must the court take these steps before conducting proceedings to consider transfer to common pleas court to try the juvenile as an adult?
- Does a juvenile waive issues challenging an allegedly defective bindover proceeding once the juvenile pleads guilty in adult court?
BACKGROUND:
The prosecutor filed a complaint in late 2013 in Summit County Juvenile Court alleging that 15-year-old Alexis Martin and three other people planned the burglary of an Akron home. During the burglary on Nov. 7, 2013, Angelo Kerney was shot and killed, and Alecio Samuel was shot and seriously injured. Martin was charged with delinquency for aggravated murder, attempted murder, aggravated robbery, aggravated burglary, felonious assault, and tampering with evidence.
The juvenile court held a hearing to determine whether Martin was amenable to rehabilitation in the juvenile system or should be tried as an adult. The judge heard testimony from a psychologist and noted that Martin may be a victim of human trafficking. The judge asked the lawyers what role that should play in the court’s decision. Finding that Martin wouldn’t be responsive to rehabilitation, the juvenile court transferred the case in July 2014 to the common pleas court to try her as an adult.
Juvenile Questions Transfer to Adult Court
In common pleas court, Martin challenged the bindover, arguing that the common pleas court didn’t have jurisdiction in the case because the juvenile court didn’t follow the law in R.C. 2152.021(F), described as part of Ohio’s Safe Harbor Law. After the court rejected her motion, she agreed to plead guilty to murder, including a firearm specification, and felonious assault. In March 2015, the trial court sentenced Martin to 21 years to life in prison.
Martin appealed to the Ninth District Court of Appeals, which upheld the trial court’s conviction and sentence. She asked the Ohio Supreme Court to review the issues, and the appeal was accepted.
Juvenile Court Was Required to Follow Safe Harbor Law, Teen Argues
Ohio’s legislature passed a law, effective June 27, 2012, to provide safe harbor protections to victims of human trafficking. Martin notes that the statute applies to juveniles charged in two situations – first, when the charges allege that the child engaged in prostitution, solicitation, or loitering to solicit, or, second, when the court “has reason to believe” the child is a human trafficking victim and the alleged offenses are related to the child’s victimization. (See sidebar.)
The state maintained that Martin worked with another female and two males to plan the robbery. The prosecutors alleged that Martin and the other female distracted Kerney and Samuel with sex, so that the armed males could enter the house to rob Kerney and Samuel, which led to the shootings. However, the amenability evaluation report submitted to the juvenile court stated that Kerney sold Martin when she was 14 years old to others for sex, made her perform exotic dances naked at a Cleveland club, and used her as a runner to collect money from other girls he was trafficking. Martin adds that the juvenile court judge noted the “clear history of human trafficking” and considered it as a factor to support keeping the case in juvenile court. Her brief argues that her victimization was “a precipitating cause and an integral and inseparable part of the alleged burglary and shootings and the circumstances leading to these events.”
Understanding that she was a human trafficking victim, the court was mandated to go further and apply the safe harbor protections to her case, Martin maintains. Those protections require the appointment of a guardian ad litem for Martin. Under the law, the court could also hold a hearing to determine whether to suspend the charges to provide services to the juvenile to avoid prosecution and prevent additional victimization. Martin contends that the juvenile court had a “clear duty” to take these steps, regardless of whether her trial attorney requested the measures, pointing to the statute’s language – “the court may hold,” “the court has reason to believe,” and “the court shall promptly appoint.”
Reviewing the related statutes and their purposes together, Martin asserts that a juvenile court must first consider and apply the safe harbor protections in R.C. 2152.021(F) before holding a bindover hearing to decide whether to transfer the youth to adult court. Because the juvenile court in this case failed to follow the statute’s requirements, the bindover order was void, and the common pleas court had no jurisdiction to handle Martin’s case, she maintains.
Martin disputes the Ninth District’s position that she waived this argument when she pled guilty in the common pleas court. She cites two 1995 Ohio Supreme Court opinions and multiple state appellate court decisions to challenge the Ninth District’s conclusion.
She asks the Court to reverse her convictions, remand the case to the juvenile court for appointment of a guardian ad litem, and instruct the juvenile court to apply the safe harbor law to her case.
Teen’s Crimes Unrelated to Trafficking, State Maintains
According to the Summit County prosecutor, the language of R.C. 2152.021(F) doesn’t give protections to juveniles, like Martin, who are charged with violent offenses or with crimes that aren’t related to their status as a trafficking victim. The juvenile court determined that Martin’s history as a victim of human trafficking and other factors that favored keeping the case in juvenile court were outweighed by the violent nature of the alleged crimes along with other circumstances, such as her cognitive and physical maturity, the prosecutor notes. The court also stated that “public safety requires that [Martin] be subject to adult sanctions.”
Even if the juvenile court applied the safe harbor protections and considered diversionary measures for Martin, the prosecutor states that the record offers no indications that the outcome would have been different.
For Martin to succeed in her appeal, the prosecutor maintains that the Supreme Court must find a lower court error (a deviation from a legal rule), and an obvious defect in the trial proceedings that affected the case’s outcome. When the juvenile court failed to apply the safe harbor law, it wasn’t a legal error and there was no defect, the prosecutor argues. Nor did the juvenile court’s actions void the bindover decision or affect the adult court’s jurisdiction in the matter, the prosecutor states.
The prosecutor asserts that Martin and the parties that filed amicus curiae briefs with the Supreme Court argue that the statute “has limitless application in every juvenile proceeding that involves an offender who is found to be the victim of human trafficking.” The prosecutor counters that the safe harbor protections aren’t that extensive.
To determine whether Martin’s charged offenses were related to her victimization, the statute refers to R.C. 2905.32, which prohibits trafficking people, the prosecutor notes. The prosecutor reads that law as criminalizing the activities of individuals who compel persons into some form of involuntary servitude or sexual enterprise for hire, which involve the victims being forced to commit non-violent offenses. In addition, the medical and psychological professionals who evaluated Martin didn’t find that the sex trafficking was related to the murder or attempted murder, the prosecutor explains. Given Martin’s crimes, the prosecutor concludes that the safe harbor protections don’t apply, and diversion options aren’t available to her.
The prosecutor also maintains that Martin waived her arguments because she didn’t raise them in juvenile court, resulting in an insufficient record for the Court to review on appeal. She also waived the arguments, in the prosecutor’s opinion, because she ultimately pled guilty. The prosecutor states that the appellate cases Martin cites to support her position were limited and permit a juvenile who has pled guilty to challenge only certain, not any, alleged issue with a juvenile court’s proceedings.
Anti-Trafficking Groups Support Juvenile
Several organizations submitted amicus briefs supporting Martin’s arguments, essentially arguing that Martin is a victim of human trafficking, including sex trafficking, and that her victimization can’t be separated from the events that led to Kerney’s murder. The briefs were submitted by the following organizations:
- Justice for Children Project at the Ohio State University College of Law collectively with Advocating Opportunity, Finding Hope Consulting, Franklin County Public Defender’s Office, and Mount Carmel Crime and Trauma Assistance Program
- Human Trafficking Law Clinic of Case Western Reserve School of Law
- Human Trafficking Pro Bono Legal Center
- Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Alexis Martin: Professor Jennifer Kinsley, Northern Kentucky University Chase College of Law, 859.572.7998
Representing the State of Ohio from the Summit County Prosecutor’s Office: C. Richley Raley Jr., 330.643.8408
Does U.S. Supreme Court Decision Invalidate Ohio’s Death Penalty Sentencing Procedure?
State of Ohio v. Maurice Mason, Case no. 2017-0200
Third District Court of Appeals (Marion County)
ISSUES:
- Did the U.S. Supreme Court’s 2016 Hurst v. Florida decision invalidate Ohio’s death penalty sentencing process?
- Is Ohio’s death penalty sentencing process similar to Florida’s, which was declared unconstitutional by the U.S. Supreme Court because it violated a defendant’s Sixth Amendment rights under the U.S. Constitution?
- Is Ohio’s death penalty sentencing process constitutional because a jury makes all the findings necessary to make a guilty defendant eligible for a the death penalty, leaving a trial judge only in the position to decide to apply the death penalty?
- Is the Ohio Supreme Court’s 2016 ruling in State v. Belton — that Hurst does not impact Ohio’s sentencing scheme — applicable to defendants who were tried by a jury and sentenced to death?
BACKGROUND:
In 1993, a Marion County jury convicted Maurice Mason of the aggravated felony murder and rape of Robin Dennis and for illegally carrying a weapon. It also convicted Mason of a death-penalty specification for committing the murder during the course of a rape. At the sentencing phase of the trial, a jury heard mitigating evidence and found beyond a reasonable doubt that the aggravating circumstances outweighed the mitigating evidence. The jury recommended a death sentence. The trial court, by law, conducted an independent review of the evidence, and agreed with the jury. Mason was sentenced to death.
Mason appealed his conviction. The Third District Court of Appeals affirmed the sentence in 1996, and the Ohio Supreme Court affirmed it in 1998.
He then pursued federal appeals, and in 2008, the U.S. Sixth Circuit Court of Appeals ruled that Mason received ineffective counsel during the sentencing phase. The court ordered a new sentencing hearing. Several appeal issues delayed the new sentencing hearing until 2016 when Mason requested that the Ohio trial court dismiss the aspects of his sentencing related to the death penalty based on the U.S. Supreme Court’s 2016 Hurst v. Florida decision. The trial court found that the Ohio’s sentencing procedure was similar to the one struck down in Florida and ruled that the state couldn’t seek the death penalty under the current process allowed by the Ohio Revised Code.
The Marion County Prosecuting Attorney’s Office appealed the decision to the Ohio Third District Court of Appeals, which reversed the trial court’s decision. Mason appealed the Third District’s ruling to the Ohio Supreme Court, which agreed to hear the case.
Ohio Law Places Death Penalty Sentence Solely with Trial Judge, Mason Argues
Mason cites the U.S. Supreme Court in Hurst, which states the Sixth Amendment to the U.S. Constitution requires a jury, not a judge, “to find each fact necessary to impose a sentence of death,” and that a jury’s recommendation is not enough to meet the Sixth Amendment right to a jury trial. In Hurst, the high court ruled Florida’s process violated the Sixth Amendment.
Mason explains that under R.C. 2929.03, a trial court jury determines whether the aggravating circumstances the offender was found guilty of committing are sufficient to outweigh the mitigating factors present in the case. If the trial jury unanimously finds, by proof beyond a reasonable doubt, that the aggravating circumstances outweigh the mitigating factors, the trial jury shall recommend to the judge that the death sentence be imposed. If the jury doesn’t find the aggravating circumstances outweigh the mitigating factors, the jury is required to recommend that the offender be given a life sentence.
Mason notes that R.C. 2929.03(D)(2) doesn’t require the jury to explain any of the factual findings it made to determine why the aggravating circumstances outweigh the mitigating factors. Once a jury makes a death-sentence recommendation, the trial court judge must independently consider the same evidence the jury considered. The trial court may sentence a defendant to death only if the court finds that the aggravating circumstances the offender was found guilty of by the jury outweigh the mitigating factors. The judge must articulate the findings in a written opinion.
Because the jury doesn’t announce any specific findings, the judge has no guidance as to what factors in mitigation the jury considered or found, what weight the jury gave to each mitigating factor, why the jury found the aggravating circumstances outweighed the mitigating factors, and how the jury conducted the weighing, Mason states. That means the judge alone determines whether the evidence leads to imposing the death penalty, which is a violation of the Sixth Amendment according to Hurst, Mason argues.
Jury Fact-Finding Leads Only to Enhanced Penalties, Mason Maintains
Mason challenges the Third District’s conclusion that the Ohio Supreme Court has already declared that Hurst doesn’t apply to Ohio’s process in State v. Belton (2016). Mason argues that oral arguments in Belton were conducted five days after the U.S. Supreme Court announced Hurst and the Ohio Supreme Court didn’t allow the parties to fully brief how Hurst might impact Ohio. Mason also maintains that in Belton the offender waived his right to a jury trial and a three-judge panel found him guilty. Ohio has a two-part trial process in capital offense cases. The first part is the “guilt” phase where either a jury or panel of judges determines whether the defendant is guilty, Mason explains. If so, the case moves to a “sentencing phase” where the aggravating and mitigating factors are weighed and the sentence then imposed.
Belton, the defendant, argued that he was entitled to have a jury sentence him even though a jury didn’t hear his case, and he raised Hurst as part of his argument. Mason states the Ohio Supreme Court concluded that when an offender waives the right to a jury trial, then the Six Amendment doesn’t guarantee a jury trial in the sentencing phase.
However, Mason argues his situation is different and that Belton doesn’t apply. He also rejects the conclusion made in Belton that if the jury finds the crime was committed and the aggravated circumstance was proved beyond a reasonable doubt, then the offender at that point becomes eligible for the death penalty. The Supreme Court wrote in Belton there is nothing more a judge can do during the sentencing phase to increase the penalty, which means the process doesn’t violate the Sixth Amendment. Mason counters the decision is incorrect and that the jury in the guilt phase can find the offender is eligible for “enhanced penalties,” not just for the death sentence. At the time Mason was sentenced in 1993, the enhanced penalties ranged from death to life in prison without eligibility for parole for 20 years, Mason explains.
It isn’t until the sentencing phase, where the weighing of the aggravating and mitigating circumstances happens, that the offender becomes eligible for the death penalty, Mason argues. It’s at that point that the jury recommends a sentence, and the judge makes an independent decision based on the jury’s recommendation, he notes. And because the jury only makes a recommendation, then it’s the judge who is delivering the death sentence, which the U.S. Supreme Court declared unconstitutional, Mason concludes.
Mason maintains that if the state wants to pursue a death sentence, the Ohio Supreme Court cannot impose that under the current law, and that the Ohio General Assembly would have to change the law to be consistent with the ruling of Hurst.
System Constitutional if Judge Can’t Increase Sentence, State Argues
The Marion County prosecutor states that the Third District appropriately reversed the decision based on Belton and other U.S. Supreme Court cases that preceded Hurst. The prosecutor urges the Ohio Supreme Court to read Hurst in context with other opinions and rule that since it’s a jury in Ohio that makes the offender eligible for the death penalty, the state’s system is constitutional.
The prosecutor argues the U.S. Supreme Court extended its 2000 decision in Apprendi v. New Jersey to the death-penalty sentencing schemes in Arizona and Florida. In Apprendi¸ the U.S. Supreme Court found that if any fact, other than a prior conviction, increases the penalty an offender faces, then a jury, not a judge, must make the finding that leads to the increased penalty. The prosecutor suggests that Apprendi was extended to Florida in Hurst because, under the Florida system, the jury finds the offender guilty of a crime that allows for the death penalty. In the sentencing phase, the judge conducts a hearing before the jury where the aggravating circumstances and mitigating factors are weighed. The jury then issues an “advisory sentence” to the trial judge on whether to impose the death penalty, without stating which aggravating circumstances were selected. The judge, who is free to accept or reject the jury’s finding, conducts an independent review and determinesthe fate of the offender, the prosecutor explains.
That system was found unconstitutional and differs from Ohio, the prosecutor maintains. In Florida, the judge alone can enhance the penalty based on finding an additional fact, which contradicts the rule established by Apprendi, the prosecutor explains.
Ohio System Different, Prosecutor Argues
Ohio’s system differs from Florida’s in a number of important ways, the prosecutor notes, including that in Ohio the jury must specify which aggravating circumstance it found beyond a reasonable doubt qualified the offender for the death penalty. In Mason’s, case the jury did find an aggravating circumstance and the judge agreed with it, the prosecutor’s brief notes. Unlike Florida, that aggravating circumstance is binding on the trial judge in Ohio, and the judge is not permitted to make an assessment of which aggravating factor applies.
In Ohio, the jury’s findings make the offender eligible for the death penalty and the jury can recommend it. If the jury recommends the death penalty, the judge can impose it. If a jury doesn’t recommend the death penalty, the judge can’t impose it in Ohio, which differs from Florida, the prosecutor argues.
“If an Ohio jury recommends a sentence of death, the maximum sentence the defendant can receive is death. A judge, however, may determine that death is disproportionate or otherwise inappropriate and impose a sentence of life imprisonment. If an Ohio jury recommends a sentence of life imprisonment, the maximum sentence the defendant can receive is life imprisonment. That recommendation is binding on the judge,” the prosecutor’s brief states. “This is the balance that has been struck by the Ohio legislature. The respective roles of the jury and the judge are thoughtfully and clearly defined. Without a clear directive from the U.S. Supreme Court, Ohio’s capital sentencing scheme should not be declared unconstitutional.”
Friend-of-the-Court Briefs
An amicus curiae brief supporting Mason’s position has been submitted by the Ohio Association of Criminal Defense Lawyers. The Ohio Attorney General’s Office, the Cuyahoga County Prosecutor’s Office, and the Ohio Prosecuting Attorney’s Association have filed an amicus briefs supporting the Marion County prosecutor.
- Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Maurice Mason: Kort Gatterdam, 614.365.4100
Attorney Discipline
Cincinnati Bar Association v. Justin E. Fernandez, Case no. 2017-1409
Hamilton County
The Ohio Board of Professional Conduct recommends that Cincinnati attorney Justin E. Fernandez be indefinitely suspended from practicing law in the state because he was paid to represent clients in three bankruptcy matters but did nothing in the cases.
Although the Cincinnati Bar Association suggested a lesser suspension of one year, the board believes that a greater sanction is needed to protect the public.
Attorney Hired to Help with Financial Disputes
From April through June 2015, Fernandez agreed to represent Cleora J. Smith, Betty Smith Carpenter, and Eddie and Amie Foster in separate matters. The clients found Fernandez through Morgan Drexen, a California company that went out of business later that year after a federal court stopped its operations and froze its assets.
Smith and Carpenter hired Fernandez to help them resolve debt issues. Smith paid Fernandez $926, and Carpenter paid him $2,618. The Fosters asked the attorney to represent them in a Chapter 7 bankruptcy filing and paid him $900.
According to the professional conduct board’s report to the Supreme Court, Fernandez provided no legal services and wasn’t responsive to his clients. His voicemail recording even said that clients could leave no more than one message a week because of his workload. Despite doing no legal work on their cases, Fernandez hasn’t refunded any of these clients’ money.
In October 2015, a bank notified the Cincinnati Bar Association that the attorney’s client trust accounts (IOLTA) were overdrawn. Fernandez didn’t respond to inquiries from the bar association about the accounts or the client grievances, the board’s report notes.
Panel Suggests Increased Penalty
During the disciplinary process, Fernandez and the bar association eventually agreed that he violated multiple rules of attorney conduct, and a one-year suspension was recommended.
The board’s panel that reviewed the case, however, found additional aggravating circumstances. The panel stated that the clients were particularly vulnerable because Fernandez took their money and neglected their needs when they needed help dealing with their creditors. In addition, the panel determined that the attorney acted with a dishonest or selfish motive, and noted his failure to cooperate during the bar association’s investigation into the matter.
Although Fernandez said during the disciplinary hearing that he suffered from mental health issues, no medical evidence was provided to support the contention. The panel concluded that an indefinite suspension was warranted, and the board agreed.
The board has suggested specific conditions if Fernandez wants to be reinstated after his suspension. Among those conditions: He must make restitution to these clients within 60 days of the Supreme Court’s disciplinary order in the case, undergo an evaluation for disorders by a health-care professional, and comply with any treatment proposed in the evaluation.
Attorney Says He Had No Selfish or Dishonest Motive
Fernandez filed objections to the board’s findings and recommended suspension. He disputes that he had a selfish or dishonest motive and states that he has expressed remorse. He was suffering from depression and was homeless for parts of 2015 and 2016, he explains. He argues that his life was unsettled and that he exercised poor judgment in managing the cases, but he didn’t act dishonestly or selfishly. These issues don’t require medical evidence at a disciplinary hearing, he states, and he asks the Court to impose the bar association’s recommended one-year suspension.
Bar Association Advocates for Lesser Sanction with Conditions
The bar association also supports a one-year suspension for Fernandez. It notes that the Supreme Court publicly reprimanded Fernandez in 2016 for similar conduct. In that case, the bar association had recommended an indefinite suspension in part because Fernandez didn’t accept responsibility and also to protect the public, but the professional conduct board suggested the lesser sanction, which was adopted.
Given the board’s analysis in Fernandez’s prior disciplinary case and because the attorney did begin cooperating with disciplinary authorities during the process in this case and did accept responsibility this time, the bar association decided that an indefinite suspension wasn’t appropriate. In its view, a one-year suspension with the board’s recommended conditions for reinstatement would sufficiently protect the public because Fernandez still will have to show his fitness to practice law before rejoining the profession.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Justin E. Fernandez, representing himself: 513.977.4206
Representing the Cincinnati Bar Association: Nicholas Zingarelli, 513.381.2047
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