| ► Columbus Daily – 08/02/01 – Judge rules O’Brien office can prosecute judges accused of over-billing |
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Columbus Daily – Aug. 2, 2001 – Judge rules O’Brien office can prosecute judges accused of over-billing Nate Ellis – Columbus Daily Reporter Staff Writer
Franklin County Municipal Court Judge H. William Pollitt, Jr. ruled Thursday that Franklin County Prosecutor Ron O'Brien and his assistants can oversee the prosecution of two judges accused of falsifying billing records.
The hearing came following the filing of a motion by David Palmer, executive director of the Committee to Expose Dishonest and Incompetent Attorneys and Judges, to disqualify O'Brien and his office from handling the investigation and possible prosecution of retired judges Tommy Thompson and Stephen Yarbrough on charges of theft in office. Palmer contended that due to conflicts of interest, O'Brien and his assistants should not be permitted to prosecute the criminal cases of Thompson, a visiting judge from Franklin County, and Yarbrough, from Lucas County.
Palmer said O'Brien's conflicts stem from his representation of Yarbrough in a civil action filed in a federal court against the judge by Charles R. Evans. He also claimed O'Brien and his assistants should be disqualified from prosecuting Thompson's case because Thompson repeatedly has been assigned to criminal cases prosecuted by O'Brien.
"Pursuant to the Code of Professional Responsibility, O'Brien is prohibited from acting in a dual capacity such as exists herein," Palmer said. "Put simply, O'Brien cannot prosecute cases before Judge Thompson and at the same time investigate and prosecute him for theft in office."
"I don't think you can be an adversary on the one hand and then have to investigate them on the other."
O'Brien's counsel, Franklin County Assistant Prosecuting Attorney David M. Buchman, disputed Palmer's claims and said there is no conflict of interest that would prohibit O'Brien from prosecuting the cases. He added that disqualification of O'Brien would be costly for the state, since it would be required to spend additional money to hire another person to handle the matters.
"As the Code of Professional Responsibility does not require it, withdrawal would result in an unnecessary and wasteful financial cost, contrary to the best interests of the client, the state of Ohio," Buchman said.
Buchman said an attorney's mandatory withdrawal from a case is governed by the Code of Professional Responsibility Rule 2-110. Section B of the rule states that an attorney representing a client before a tribunal shall withdraw from employment if he knows it is obvious that his client is bringing the legal action, conducting the defense or asserting a position in the litigation, or is otherwise having steps taken for him," merely for the purpose of harassing or maliciously injuring any person.
The section also provides that an attorney could be withdrawn from a case if he knows or it is obvious that his continued employment will result in violation of a disciplinary rule or if he is discharged by his client. Additionally, withdrawal may occur if the attorney's mental or physical condition renders it unreasonably difficult for him to carry out the employment "effectively."
Buchman said O'Brien is not asserting any position in this would-be criminal litigation that is taken for the purpose of harassing or maliciously injuring any person, and added that the state has not sought a withdrawal. Further, he said neither the assigned attorney's mental nor physical condition prevents him from continued representation and involvement.
"The undersigned has not found, after diligent search, and other disciplinary rule that would be violated by (O'Brien's) continuing representation of the state of Ohio," Buchman said.
As to Palmer's contention that O'Brien's previous representation of Yarbrough represents a conflict, Buchman cited a Supreme Court of Ohio Board of Commissioners on Grievances and Discipline rule that states "the responsibility of a judge to recuse does not extend to cases involving an entire governmental office, but only to cases involving the attorneys then currently representing him."
"The duty for the judge to recuse ends when the attorney-client relationship with the particular attorney ends," Buchman said.
Buchman also said there was "absolutely no evidence" that he, as a member of O'Brien's office who likely would investigate and possibly prosecute the cases against the retired judges, had any professional relationship with Yarbrough or Thompson.
"No one said anything to me about this case except that I should get to the bottom of it, and that is what I intend to do," he said.
Buchman also indicated his feelings as to charges levied against the judges by Palmer saying that Palmer has asserted that Yarbrough and Thompson received money in which they were not entitled simply because the Supreme Court should not have granted it to them.
"His approach to the whole thing is the Supreme Court should not be paying this way and because they have paying this way, these judges are guilty of theft in office," he said. "You can't have theft in office without theft in office."
Palmer said the investigation and possible prosecution of the judges should be dealt with by an independent party without ties to Franklin County. He said to allow the prosecutor's office to proceed with the matter would provide the appearance of impropriety.
"The issue is, is there an appearance of impropriety or bias," he said. "I think there is. If there's an appearance of a conflict of interest, you have to leave."
Pollitt said he had heard no evidence that O'Brien or Buchman were currently representing Yarbrough or Thompson, and therefore, a mandatory disqualification did not apply.
"The court has had the opportunity to hear evidence provided by Mr. Palmer and Mr. Buchman," Pollitt said. "The court finds there is no disciplinary rule that would require a mandatory disqualification of Mr. O'Brien or Mr. Buchman."
The case is scheduled to proceed Wednesday.
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