by Richard W. Millar, Jr.
Judges have oft noted that with each decision they risk alienating half of the lawyers and litigants before them. There is a certain realism about that as some winners will sing high praises while some losers will sling low insults.
As lawyers, we are to be above all that. Even if a ruling feels like being run over by a cement truck hurtling through a red light, we say, “Thank you, Your Honor.”
Of course, we don’t mean “Thank you, Judge, for ruining our lives and those of our children and grandchildren,” we mean “Thank you for hearing and deciding our client’s disputes.” Even if we don’t really mean it. Our job is to present; theirs is to decide.
Unbridled criticism can get us in trouble, whether we unleash it at witnesses, opposing lawyers, or judges. Lest you disbelieve me, a case in point.
One Thomas Yoder of Holland, Ohio is the recipient of a less than complimentary ruling by the Ohio Supreme Court, partly because he did not pay attention to Millar’s Corollary No. 47, which is “Before you appeal a bad result, make sure the next court can’t make it worse,” which, in turn, is a follow up of Corollary 46 which is “Quit while you are only a little bit behind.”
A panel of the Board of Professional Conduct conducted a hearing, and then recommended that Mr. Yoder be suspended for two years with one year conditionally stayed. The board adopted the panel’s findings, conclusions, and the sentence.
Mr. Yoder, as I am sure you guessed, appealed, arguing, among other things, that the sentence was too harsh. The supreme court said:
“On review, we find that the board’s findings of fact and misconduct are supported by the record, but that a more severe sanction is necessary to protect the public from Yoder’s ongoing misconduct.”
Instead it suspended him for two years with six months conditionally stayed and required that before reinstatement he would have to prove he had been evaluated by the Ohio Lawyers Assistance Program and that he had complied with that program’s recommendations.
Don’t you hate when that happens?
So, what did he say that got him in this trouble? I will give you the highlights.
In a child custody dispute, a magistrate had awarded temporary custody of minor children to a Codi Dowe who was a cousin of the children’s father, instead of Mr. Yoder’s clients who were the maternal grandparents. He accused Ms. Dowe of “kidnapping,” of “lies and fabrications,” and being a “very troubled person” who was “obviously delusional.” And, because Ms. Dowe was a nurse, he sent a letter to the Michigan Department of Licensing accusing her of “wild, insane allegations [that] only exist in her mind.” He requested the department to conduct a hearing to determine her fitness as a nurse.
After a negative ruling, he called the Magistrate’s decision “the most absolutely insane decision [he had] ever encountered in almost forty years . . . [and not what] a normal, competent magistrate would have done.”
In another case, he called opposing counsel “a complete idiot,” accused him of “churning” hours, and sent one letter back to him saying it “was so stupid I sent it back to you as I didn’t want it in my file.” He called the lawyer’s client a “very ignorant, troubled woman” who was a “liar” and “an idiot,” summing it up by saying she was represented by “a mentally ill attorney advising an idiot.”
A third count involved the disciplinary hearing itself. He was found to have sent letters to witnesses telling them that they would be under oath and advising them to seek an attorney as “to the ramifications of your testimony.”
I am guessing it also didn’t help when he claimed the bar counsel “had absolutely no clue as to any of the facts he has alleged in his complaint.”
His defense: “Everything I have ever said about anybody is 100% absolutely true.”
All of this goes to prove Millar’s Corollary No. 48: “While truth may be a defense, it may not be the best defense.”
Richard W. Millar, Jr. is Of Counsel with the firm of Friedman Stroffe & Gerard in Irvine. He can be reached at rmillar@fsglawyers.com.