Ohio State Bar Assn. v. Mason (Slip Opinion)
Citation2017 Ohio 9215, 94 N.E.3d 556, 152 Ohio St. 3d 228
Date Filed2017-12-28
Docket2017-0794
JudgeKennedy, J.
Cited0 times
StatusPublished
Syllabus
Judges-Misconduct-Attempted felonious assault and domestic violence-Indefinite suspension with no credit for time served on interim felony suspension and with added conditions for reinstatement.
Attorneys
J. Desiree Blankenship and Eugene P. Whetzel ; Kelly E. Heile, Butler County Assistant Prosecuting Attorney; and Scanlon Group Co., L.P.A., and Maura E. Scanlon, Akron, for relator., Alkire & Nieding, L.L.C., Richard C. Alkire, and Dean Nieding, Independence, for respondent.
Full Opinion (html_with_citations)
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Ohio State Bar Assn. v. Mason, Slip Opinion No.2017-Ohio-9215
.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2017-OHIO-9215
OHIO STATE BAR ASSOCIATION v. MASON.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Ohio State Bar Assn. v. Mason, Slip Opinion No.
2017-Ohio-9215.]
JudgesâMisconductâAttempted felonious assault and domestic
violenceâIndefinite suspension with no credit for time served on interim
felony suspension and with added conditions for reinstatement.
(No. 2017-0794âSubmitted October 18, 2017âDecided December 28, 2017.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2016-037.
_______________________
KENNEDY, J.
{¶ 1} Respondent, Lance Timothy Mason, of Cleveland, Ohio, Attorney
Registration No. 0067346, was admitted to the practice of law in Ohio on
November 19, 1996. From 2008 to 2014, Mason served as a judge on the Cuyahoga
County Court of Common Pleas.
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{¶ 2} In a complaint filed on August 24, 2016, relator, Ohio State Bar
Association, alleged that Mason pled guilty to one count of attempted felonious
assault, a third-degree felony, and one count of domestic violence, a first-degree
misdemeanor. A hearing was held on March 1, 2017, before a panel of the Board
of Professional Conduct. Based on the partiesâ stipulations and evidence presented
at the hearing, the panel found by clear and convincing evidence that Mason
committed the charged violations. After weighing the applicable aggravating and
mitigating factors, the panel recommended that Mason be disbarred for his
misconduct. The board adopted the panelâs findings of fact, conclusions of law,
and recommended sanction.
{¶ 3} We agree with the board that Mason committed the violations alleged
in the complaint. However, we disagree with the board that disbarment is the
appropriate sanction for Mason. Instead, we impose an indefinite suspension with
no credit for time served on the interim felony suspension and with added
conditions for reinstatement.
Misconduct
{¶ 4} When the misconduct in this case occurred, Mason was a sitting judge
on the Cuyahoga County Court of Common Pleas, General Division. During all
relevant times, he was subject to the Code of Judicial Conduct as well as the Rules
of Professional Conduct.
{¶ 5} In March 2014, Mason and his wife, Aisha Fraser Mason (âFraserâ),
separated, with Mason continuing to live in what was the marital home and Fraser
residing in an apartment. During their separation, Mason and Fraser shared equally
in the custody and parenting of their two minor children.
{¶ 6} On August 2, 2014, Mason, Fraser, and the children attended a funeral
service for Masonâs aunt. Mason and Fraser agreed that after the service, Mason
would drop Fraser off at her apartment and Mason would spend the afternoon with
the children.
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January Term, 2017
{¶ 7} During the ride to Fraserâs apartment, the couple engaged in a
conversation about their relationship. As the discussion progressed, Mason became
upset and began assaulting Fraser, all the while continuing to drive. Mason struck
Fraser repeatedly in the head, hit Fraserâs head against the armrest, the dashboard,
and the window of the passenger door, and bit Fraser on her face. Fraser attempted
to escape the moving car, but Mason grabbed her hair. When the car stopped at a
red light, Fraser was able to open the door, but fell to the ground as she tried to flee.
With the two children still in the car, Mason placed the vehicle in park, got out, and
began to strike Fraser as she lay on the ground.
{¶ 8} Mason then returned to his vehicle and drove away, leaving Fraser
behind. Mason and Fraserâs two children (ages six and four at the time) were seated
in the back seat and witnessed the events. The older child, who has special needs
and possesses limited verbal abilities, was quiet while the attack was occurring, but
the younger child was screaming.
{¶ 9} Upon arriving at the house, Mason called his sister, Dr. Lynn Mason,
and asked her to come and pick up the two children because he intended to shoot
himself. He was arrested by police later that day.
{¶ 10} As a result of the attack, Fraser sustained severe physical harm to
her head, face, and neck, including an orbital blowout fracture under her left eye.
She was hospitalized overnight from August 2-3, 2014, following the attack, and
again from August 8-9, 2014, for surgery. Fraser subsequently arranged for her
two children to begin counseling. As of February 2017, they continued to receive
counseling as a result of what they witnessed on August 2, 2014.
{¶ 11} On August 26, 2014, Mason was charged in an eight-count
indictment stemming from this incident. On the same date, this court ordered that
Mason be disqualified from acting as a judge pursuant to Gov.Jud.R. III(6)(A). In
re Disqualification of Mason, 140 Ohio St.3d 1405,2014-Ohio-3703
,14 N.E.3d 1051
. On August 19, 2015, Mason pled guilty to attempted felonious assault and
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domestic violence, and on September 16, 2015, he was sentenced to 24 months in
prison at the Lorain Correctional Institution and six months in county jail, with the
sentences to run concurrently and with additional conditions.
{¶ 12} The board found that Masonâs conduct violated Jud.Cond.R. 1.2 (a
judge shall act at all times in a manner that promotes public confidence in the
independence, integrity, and impartiality of the judiciary and shall avoid
impropriety and the appearance of impropriety) and Prof.Cond.R. 8.4(a) (a lawyer
shall not violate or attempt to violate the Ohio Rules of Professional Conduct),
8.4(b) (a lawyer shall not commit an illegal act that reflects adversely on the
lawyerâs honesty or trustworthiness), and 8.4(h) (a lawyer shall not engage in
conduct that adversely reflects on the lawyerâs fitness to practice law).
Sanction
{¶ 13} When imposing sanctions for judicial and professional misconduct,
we consider several relevant factors, including the ethical duties violated, the
aggravating and mitigating factors listed in Gov.Bar R. V(13), any other relevant
factors, and the sanctions imposed in similar cases. Ohio State Bar Assn. v. Jacob,
150 Ohio St.3d 162,2017-Ohio-2733
,80 N.E.3d 440, ¶ 11
.
{¶ 14} Here, the board unanimously found the following aggravating
factors: Masonâs victims were vulnerable and suffered harm as a result of Masonâs
acts; he failed to adequately explain the conduct that is the basis for the violation;
he failed to provide assurances that the conduct will not happen again; and he did
not fully engage in the redemptive process.
{¶ 15} In mitigation, the board found that Mason did not have a prior
disciplinary record, demonstrated a cooperative attitude toward the disciplinary
process, and presented evidence of his good character and reputation. See Gov.Bar
R. V(13)(C)(1), (4), and (5). The board also found that other penalties and
sanctions had been imposed for Masonâs misconduct. In addition to the criminal
sanctions for his offenses, the board noted that Mason was removed from his
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January Term, 2017
position as a judge, was incarcerated for his conduct, and was in debt to his former
wife for $150,000 from the settlement of a civil case she filed against him. See
Gov.Bar R. V(13)(C)(6). Mason also apologized in open court to his wife at the
conclusion of the civil case.
{¶ 16} We agree with these findings. We find as an additional mitigating
factor the fact that Mason was under stress at the time of the assault. His house had
flooded twice in the months leading up to the assault. In addition, he was separated
from his wife, and he had gone to the ER complaining of chest pains. Finally, the
assault occurred on the way home from his auntâs funeral.
{¶ 17} In reaching its recommendation of disbarment as the appropriate
sanction, the board relied on five cases involving judges who committed grave
misconduct, including four who were convicted of felonies: Disciplinary Counsel
v. Terry, 147 Ohio St.3d 169,2016-Ohio-563
,63 N.E.3d 88
; Disciplinary Counsel v. McAuliffe,121 Ohio St.3d 315
,2009-Ohio-1151
,903 N.E.2d 1209
; Disciplinary Counsel v. Hoskins,119 Ohio St.3d 17
,2008-Ohio-3194
,891 N.E.2d 324
; Disciplinary Counsel v. Gallagher,82 Ohio St.3d 51
,693 N.E.2d 1078
(1998); and Disciplinary Counsel v. Mosely,69 Ohio St.3d 401
,632 N.E.2d 1287
(1994). The
aggravating circumstances justifying disbarment in these cases were fraud,
dishonesty, protracted or premeditated acts, or the abuse of judicial office.
{¶ 18} In Terry, a judge was convicted of multiple federal felonies in
connection with his judicial duties. The conduct underlying these convictions
consisted of providing judicial favors in exchange for contributions to his 2008
election campaign. This conduct violated five canons of the former Code of
Judicial Conduct and two Rules of Professional Conduct. We held that Terryâs
misconduct âoccurred in the performance of his core judicial duties,â and as a
result, we adopted the boardâs recommendation of disbarment. Terry at ¶ 17.
{¶ 19} In McAuliffe, a judge violated the former Code of Professional
Responsibility and the former Code of Judicial Conduct by burning down his house
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in order to defraud an insurance company, committing several federal felonies in
the process. The board recommended the judgeâs disbarment. This court agreed,
concluding that a judge who engages in illegal conduct involving moral turpitude
â âdeserves the full measure of our disciplinary authority.â â Id. at ¶ 29, quoting
Gallagher at 53.
{¶ 20} In Hoskins, 119 Ohio St.3d 17,2008-Ohio-3194
,891 N.E.2d 324
, a
sitting common-pleas judge leased part of a building he owned to the Adult Parole
Authority. When he became concerned about leasing to an agency whose
representatives regularly appeared before him as witnesses, Hoskins first attempted
to conceal his interest in the building, then sought to sell the building to a felon who
he knew would be paying him with proceeds from a criminal enterprise. Hoskins
also illegally released an inmate from custody on the suggestion of a personal
friend, failed to recuse himself from a criminal case in which the defendant was his
assistantâs son, and made misleading public statements about a pending case. This
court was persuaded that the ultimate sanction of permanent disbarment was
warranted because Hoskinsâs misconduct spanned a ten-year period and included
deceit and abuse of his office.
{¶ 21} In Gallagher, 82 Ohio St.3d 51,693 N.E.2d 1078
, a sitting common- pleas judge was arrested and charged with attempting to distribute cocaine. He pled guilty to distributing cocaine and was sentenced to 12 months in prison.Id.
We permanently disbarred Gallagher, characterizing the offense of distributing cocaine as a crime âinvolving moral turpitude.âId. at 53
. This court approved the boardâs recommendation for disbarment because this court believed that the judgeâs felonious conduct âbrings disrepute to the judicial system, [by which] the institution is irreparably harmed.âId.
{¶ 22} In Mosely, 69 Ohio St.3d 401,632 N.E.2d 1287
, a judge was
convicted of six federal felonies stemming from a conspiracy to use his position as
judge to unlawfully obtain property not due him. He received in excess of $230,000
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January Term, 2017
in illegal payments or kickbacks from certain persons, including court-appointed
contractors. This court concurred with the findings and recommendations of the
board to disbar the judge for this misconduct.
{¶ 23} In Cleveland Bar Assn. v. Katalinas, 90 Ohio St.3d 140,735 N.E.2d 432
(2000), which was not considered by the board but which demonstrates the
same philosophy in assessing sanctions as the cases above, a sitting municipal-court
judge agreed to manage the financial affairs of a childhood friend. He took control
of the friendâs funds for his own personal use and ignored demands for their return.
He also agreed to represent clients while a judge and then neglected their cases, and
in one case, he refused to return his clientsâ file unless the clients paid him $5,000.
This court adopted the findings, conclusions, and recommendation of the board and
disbarred the judge.
{¶ 24} In this case, Mason was convicted of a felony based on a single
violent assault. Brutal it surely was. But it was not shown to be premeditated or
part of a pattern of behavior. In this regard, we consider this case to be
distinguishable from those cited by the board. Instead, we look to Ohio State Bar
Assn. v. McCafferty, 140 Ohio St.3d 229,2014-Ohio-3075
,17 N.E.3d 521
. In that
case, a sitting judge was convicted of lying to the Federal Bureau of Investigation.
This court imposed an indefinite suspension with no credit for time served. We
distinguished previous cases, including those cited by the board in this case: â[T]he
circumstances in this case can be distinguished from Gallagher, McAuliffe, and
Hoskins, in which judges were permanently disbarred. In those cases, the judges
had engaged in criminal conduct over a period of time, from a few days to months,
and the misconduct was preplanned.â Id. at ¶ 23. We emphasized that
McCaffertyâs violations were unplanned and occurred on a single impromptu
occasion, rather than as a pattern of premeditated criminal conduct. Id. at ¶ 24.
Therefore, we concluded, âimposition of the systemâs most severe sanction [was]
not warranted * * *.â Id.
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{¶ 25} We do not demean the gravity and severity of Masonâs misconduct,
but we do believe that there is a distinction to be made between the misconduct in
this case and the cases relied on by the board to justify disbarment as the
recommended sanction.
{¶ 26} In our research, we have not found any cases in which a judge was
disciplined after a felony conviction for assault. However, for purposes of
comparison, we look to similar cases involving lawyers who were convicted of
felony level assaults. In those cases, this court approved a term of suspension with
credit for time served on an interim felony suspension.
{¶ 27} In Disciplinary Counsel v. Whitfield, 132 Ohio St.3d 284, 2012- Ohio-2708,971 N.E.2d 915
, a lawyer pled guilty to one count of aggravated assault,
a fourth-degree felony, for hitting another man at a bar with a glass bottle, causing
two facial lacerations and imbedding a piece of glass in the manâs eye. After
finding violations of the Rules of Professional Conduct, this court suspended the
lawyer for two years with credit for time served under the interim felony suspension
conditioned upon a two-year extension of his OLAP contract and his continued
compliance with the treatment recommendations of his mental-health
professionals. Id. at ¶ 14.
{¶ 28} Similarly, in Disciplinary Counsel v. Goodall, 103 Ohio St.3d 501,2004-Ohio-5583
,817 N.E.2d 23
, a lawyer was convicted of aggravated assault, a
felony of the fourth degree, for injuring her husbandâs arm during a domestic
dispute. This court imposed a six-month suspension with credit for time served on
the interim felony suspension.
{¶ 29} We also found that a one-year suspension was warranted when an
attorney was convicted of aggravated assault, a felony of the fourth degree, for
breaking into a house and getting into an altercation with a male friend of his ex-
wife. Columbus Bar Assn. v. Harris, 1 Ohio St.3d 33,437 N.E.2d 596
(1982). The
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January Term, 2017
victim in this case suffered âvarious serious injuriesâ after the attorney involved in
the altercation struck him with a bat. Id. at 34.
{¶ 30} We recognize that there are other cases involving attorneys
convicted of felonious assault or aggravated assault in which the attorney received
an indefinite suspension, but we consider these cases distinguishable from the
assault in this case because a deadly weapon was used in the assaults. See, e.g.,
Disciplinary Counsel v. Cushion, 92 Ohio St.3d 144,749 N.E.2d 224
(2001) (felonious assault: shot female companion/indefinite suspension); Disciplinary Counsel v. Lucey,63 Ohio St.3d 143
,586 N.E.2d 78
(1992) (aggravated assault: stabbed wife with a knife/indefinite suspension); Disciplinary Counsel v. Colburn,42 Ohio St.3d 173
,538 N.E.2d 110
(1989) (felonious assault: shot wifeâs ex-
husband/indefinite suspension).
{¶ 31} Of course, these cases represent discipline of lawyers convicted of
felony-level assaults. We hold judges to âthe highest possible standard of ethical
conduct.â Mahoning Cty. Bar Assn. v. Franko, 168 Ohio St. 17, 23,151 N.E.2d 17
(1958); In re Complaint Against Harper,77 Ohio St.3d 211, 220
,673 N.E.2d 1253
(1996). Canon 1 of the Code of Judicial Conduct states, âA judge shall uphold and
promote the independence, integrity, and impartiality of the judiciary * * *.â
Jud.Cond.R. 1.1 states, âA judge shall comply with the law.â
{¶ 32} As set forth above, the consistent aggravating circumstances in all of
the cases the board relied on is that the judicial misconduct involved either fraud,
dishonesty, protracted or premeditated acts, or the abuse of judicial office. The
board recommended disbarment, which would mean that Mason âshall not be
readmitted to the practice of law in Ohio.â Gov.Bar R. V(12)(B). We agree with
the board that Masonâs misconduct was âegregious.â In fact, his misconduct was
reprehensible and abhorrent. However, we do not believe that his misconduct fits
in the same category as the cases in which disbarment was the sanction imposed.
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{¶ 33} The primary purpose of judicial discipline is âto protect the public,
guarantee the evenhanded administration of justice, and maintain and enhance
public confidence in the integrity of [the] institution.â Disciplinary Counsel v.
OâNeill, 103 Ohio St.3d 204,2004-Ohio-4704
,815 N.E.2d 286, ¶ 33
. Because of
the distinction between the misconduct in this case and the premeditated or
protracted misconduct in the cases relied on by the board, and because Masonâs
misconduct did not involve dishonesty or abuse of his judicial office, we conclude
that the appropriate sanction for Mason is something less than the ultimate penalty
of disbarment. But his position as a judge and the gravity of his offense demand
something more than a term suspension with credit for time served and the usual
conditions for reinstatement. See Gov.Bar R. V(24)(A).
{¶ 34} The imposition of an indefinite suspension with no credit for time
served on the interim felony suspension with conditions is appropriate here because
it protects the public by ensuring Mason cannot return to the practice of law without
petitioning for reinstatement pursuant to Gov.Bar R. V(25)(A). Before he can be
reinstated, he must demonstrate that he has met the conditions set forth in this
opinion. Gov.Bar R. V(25)(D)(1). In addition, Mason must establish by âclear and
convincing evidenceâ that he is ânow a proper person to be readmitted to the
practice of law in Ohio,â Gov.Bar R. V(25)(D)(1)(f).
Conclusion
{¶ 35} Accordingly, Lance Timothy Mason is hereby indefinitely
suspended from the practice of law with no credit for time served under his interim
felony suspension. Furthermore, in addition to the requirements set forth in
Gov.Bar R. V(25)(D)(1), the following conditions for reinstatement shall apply:
Mason shall (1) submit to a mental-health evaluation conducted by the Ohio
Lawyers Assistance Program (âOLAPâ) and obtain a report that he is able to return
to the competent, ethical, and professional practice of law, (2) enter into an OLAP
contract, the duration and terms of which shall be determined by OLAP, and (3)
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January Term, 2017
comply with all recommendations of OLAP and his treating professionals. Costs
are taxed to Mason.
Judgment
accordingly.
OâCONNOR, C.J., and OâDONNELL, FRENCH, OâNEILL, FISCHER, and
DEWINE, JJ., concur.
_________________
J. Desiree Blankenship and Eugene P. Whetzel; and Kelly E. Heile, Butler
County Assistant Prosecuting Attorney; and Scanlon Group Co., L.P.A., and Maura
E. Scanlon, for relator.
Alkire & Nieding, L.L.C., Richard C. Alkire and Dean Nieding, for
respondent.
_________________
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