What the court's opinion wrote about the "facts" of the discipinary case which Mahoning County Bar association brought against Attorney Richard Olivito is something out of either a Kalfa novel or a page lifted from within an "Alice in Wonderland" kind of looking glass 'finding".
This blog post will attempt to detail first some of the findings of this Supreme Court's opinion which has been widely published in both print and news media but more fully on Google and other internet /legal websites.
One thing is clear: the findings of the Supreme Court in reliance upon its own Board of Commissioners 'findings' are but the creation of a process which is not only seriously flawed itself, lacking in fundamental due process but one which in a word, evinces a certain mysterious but obviously serious court bias and/or even a very distinct 'agenda' both
in the court's opinions' tone and result.
It not unlike the state had adopted apriori, the most unsubstantiated, negative and false and seriously misleading allegations based on mere inneundo, despite what the real facts, testimony and documents in evidence proved during the prior due process proceedings.
In a word, its findings were not only flawed in the legal and due process sense, but they seem to evince a motive other than that which the lawyer disciplinary process is supposedly designed to promote; the fair administration of justice among the people and public who rely upon this very system of laws.
The case arose back in 2004, when a client [the client was a day contractor who filed for bacnkruptcy and was a twice convicted felon] was somehow motivated to file a formal grievance against me for a signature issue inside a basic Chapter Seven bankruptcy case.
The details of the incident which are clearly stated on the record in part, inside the official case, because Richard Olivito did NOT challenge, or lie or even contest that his signature was that which he signed for the clients to assist in getting their bankruptcy filed in a timely manner.
In other words, he signed a bankruptcy petition, for these clients in place of their own signature at the federal bankruptcy court clerk's window at the time of the filing of the petition when he noticed that the bankruptcy petition was itself completed, but left unsigned by the clients.
It was a mistake to do this. Olivito readily admited to the magistrate in Youngstown at the very next court hearing, that indeed, this petition filed in person by Mr. Olivito, in the midst of an extremely busy day and time, contained his own signature for his clients, who had assisted directly in preparing the lengthy [50 plus pages] petition.
What is critical here is: Mr. Olivito never tried at any time to hide this fact, either then during the bankruptcy processing itself within the Federal Bankruptcy Court nor later at ANY time, within the investigation arising within the local bar association.
He did NOT attempt in any way avoid this fact nor did he at any time actually deceive anyone about this fact.
It was a simple inadvertance done in a busy and pressured moment which will be more fullly explained below in a follow up post.
Attorney Richard Olivito admitted it was wrong to do and so stated to both the court, the bar association, in his deposition on this issue and at the follow up hearings inside the Supreme Court. He painfully recounted the incident, acknowledged it as a serious but honest mistake, noting it was not involving others or any secretary nor was it repeated. He commented that it was not intended in any way to benefit himself nor did it nor could such an act do so; it only was intended to further the client's interests in getting their petition filed.
He also noted he never made any attempt to perpetrate any kind of real deception on the court or practice as evinced by his readily admitting when the issue arose at the bankruptcy magistrate's creditor's hearing that it was indeed his own signature for that of his clients.
He noted repeatedly in writing, both thru counsel and in his own deposition and in court testimony and arguments that the signature issue was a mistake. He only mentioned that he
did not actually gain nor did he intend to gain from it whatsoever and that there was a context to how it happened but this was not expressly given as any excuse for any violation fo the prohibition on such conduct.
Even the Mahoning County Bar Association agreed and stipulated openly before the hearing officer on the open public hearing on this issue, that Attorney Olivito did not "act out of any selfish motive". There was absolutely no evidence to this effect ever produced anywhere especially where the clients obtained the full discharge as later noted for a very small sum or fee.
Most lawyers who have done this kind of isolated thing, who do NOT damage their clients and do NOT engage in some serious pattern of related signature conduct, which otherwise results in a direct benefit to the lawyer themselves, usually have received very light sanctions, if any from the Ohio Supreme Court
disciplinary process.
In fact, at most, for a "first time", singular non-harmful inadvertant signature case, almost all Ohio lawyers have received either a public reprimand and/or a six months suspension, oftentimes, with the suspension sanction completely stayed. Actual time off is usually limited to the lower end of the court's sanction continuum where there is a first time, non material event which does not evince any true harm to the client or selfish motive on the part of the misconduct committed.
This is even true in much more direct and intentional 'deceiving' lawyer signature cases, where the lawyer was clearly either not forthcoming about his signing a document for the client and/or even where the signature actually has caused harm to the legal interests of the clients.
[One of the most important cases of this kind of conduct expressly cited often by Supreme Court Cheif Justice Moyers as setting the standard for this kind of case's review only held that the lawyer would be suspended for six months, in a case which had much more serious intentional consequence both for the client and the lawyer involved.]
What is most interesting however, is this very signature issue which was admitted to and never concealed by Olivito at any time and was completely done out of unselfish motives, because it involved ONLY forwarding the interests of the client, and NONE of any of Olivito's personal interests inside this process were even capable of being furthered by the signature issue, became the basis for one of the most serious such 'signature cases' sanctions in recent State Supreme Court history .
For this reason and in this manner, however, the Supreme Court thru its agents and Board of Commissioners motivated by interests far beyond this individual signature case, somehow reached a conclusion that Olivito somehow not only lied and deceived a court of law, but he had also somehow neglected seriously these clients' bankruptcy and caused a "substantial delay"
in the bankrputcy processing itself.
The record is simply devoid of any such supporting evidence and is actually contra the same as per the federal court who handled the underlying client's petition itself.
Finally, the Supreme court found that he somehow had also violated the disciplinary rule against an "improper withdraw" as counsel after the client's had requested and stated in open court that they wished to pursue the bankruptcy without my services any longer and did so.
What is missing, from this very bizarre and uneven and even oftentimes completely false factual finding and holding, is that the clients received their bankruptcy from the sole work product of Attorney Richard Olivito; that they received this according to the very magistrate who passed the petition prepared in the case for the client by Attorney Olivito "in a timely manner" and that all told, they obtained the bankrputcy discharge completely, fully and without any signficant delay, for over $103,000.00 in debts, by the sole work product of Attorney Richard Olivito for a total fee of less than $150.00 total!!
What was left out of the Ohio Supreme Court's findings also is that Attorney Richard Olivito paid the bankruptcy filing fees for these clients, well BEFORE this signature issue ever arose between them and the court, and that Attorney Olivito also fully protected the clients' debtor interests, at all times, and personally protected and sought out, unilaterally without the client's assistance many of the most significant and major debts, which took additional time and effort, all of which time and effort was NOT compensated by the clients, at ANY time before or AFTER the petition was filed.
The case's petition review and legal process once filed, took the standard 90 to 120 days to finalize and became itself, the instrument discharging the client's bankruptcy.
In otherwords, these clients did NOT have ANY other instrument, document, petition or legal filing done or produced or created for them AT ANY TIME AFTER they discharged Attorney Olivito over the alleged "signature" issue, during a magistrate's scheduled creditor's hearing.
I.E. they not only obtained the bankruptcy full discharge by his sole work product, BUT THEY OBTAINED THE SAME WITH THE VERY SAME SIGNATURE ITSELF THAT WAS ALLEGED AND FOUND BY THE MAHONING COUNTY BAR ASSOCIATION to be "fraudulent" and "deceitful".
SO, IN other words, an experienced federal bankruptcy magistrate AND a separate veteran bankruptcy Federal judge, knowing the facts of the signature issue, PERMITTED THE SIGNATURE AND DOCUMENT {THE PETITION}... which Attorney Olivito signed and admitted and disclosed to the same federal court, in December of 2003, BEFORE THE BANKRPUTCY DISCHARGE... TO BECOME THE INSTRUMENT AND SOLE BASIS FOR THE CLIENT'S DISCHARGE ITSELF a very few weeks later.
In the end, the Ohio Supreme Court handed Attorney Olivito one of the heaviest sanctions ever given to a lawyer, for a single, first time, isolated,inadvertant,
non -material- to- the- case damaging lapse which caused NO damage to the client economically, nor to the court materially and did NOT benefit him, in ANY way NOR COULD IT HAVE.
Yet, in light of such facts, the republican dominated state supreme court subjected Olivito to a two year suspension with one year 'stayed on conditions', [as found on google here] for signing a client's otherwise valid, properly executed and ultimately successful bankruptcy petition wherein the petition itself, signed by Olivito and admitted before the very bankruptcy court magistrate and judge, of the Northern District Of Ohio, competely accepted and discharged the client's $103,000 [that is one hundred and three thousand dollars] bankruptcy debts alone, WITHOUT FURTHER LEGAL ASSISTANCE BY ANY OTHER LAWYER.
This proper and valid and legally binding petition discharged for the Accola's debts, based upon the petition filed by Richard Olivito, occured, just two weeks AFTER Attorney Olivito HAD to, under the Code of Professional Responsibility, MANDATORILY withdraw from further representation of the clients when he offered continued representation inside a magistrate conference and was expressly declined by the clients to continue with them as their bankruptcy lawyer, even where all the work had been done by him to obtain their debts' dischargd.
[This all happened also, wherein he did NOT charge the clients any further, other than the original $150.00 dollars they originally paid six months prior for which he took much more time and effort on their behalf to successfully draft a solid petition which operated to discharge the clients' bankruptcy. ]
As stated above, Mr. Olivito personally had paid the $200 filing fee, in October of 2004, when he filed the petition, from my own funds, SEPARATE and apart from their bankrutpcy fees which he had prior to filing the client's petition, charged them in writing and yet the clients never fully remitted.
For this related conduct, as they court allegedly finds, the court said, this conduct was the kind that requires the most severe form of a lawyer sanction and subjected Olivito's license to the "higher sanction" because he allegedly had somehow, in Justice Moyer's eyes, "damaged" the clients, despite all evidence , records and federal bankruptcy courts' findings, to the contra
Adding, further, the clients, somehow, had suffered a form of undocumented, never in court produced, or even anywhere ever documented, noted and/or recorded 'damages.'
What kind of damages exactly demonstrated through ANY court testimony, document, or findings is not specified clearly except to say that Attorney Olivito somehow had caused "about a month" delay in the process when after the client's discharged him and then had their backruptcy hearing postponed.
This was as will be seen, was something which was not Olivito's fault or failure but was one of several decisions of the clients' own choosing.
Whatever the alleged finding's basis by the Supreme Court about Mr. Olivito causing "at least a one month delay", in the process, the federal local magistrate who actually processed the bankruptcy case herself, openly stated, when examined at her deposition, readily admitted, "this case was NOT SERIOUSLY delayed and it discharged on time". {Page 135 of Magistrate's Deposition} ESPRESSLY CONTRA TO THE OHIO SUPREME COURT'S "FINDINGS" -- ISSUED TWO AND HALF YEARS AFTER THE BANKRPUTCY DISCHARGED IN FEDERAL COURT.
Furthermore, even if a month delay occured, the clients were NOT HARMED BY THE SAME AND THEIR CREDITOR STATUS WAS PROTECTED BY THE WORK AND EFFORTS OF ATTORNEY OLIVITO AS FOUND INSIDE THE BANKRUPTCY CASE's OFFICIALLY STAMPED AND CERTIFIED FILE COPY.
Nonetheless, Moyers and the court also "found" that, simply because Attorney Olivito strongly denied and then fought the other flawed and undocumented Mahoning County Bar allegations, and presented a strong defense in his own behalf and had differed within various depositions inside the case's litigation,-- and at times locked horns with the local bar lawyer and prosecutor who oftentimes was making wild, personal, unsubstantiated serious allegations against him inside of depositions-- that Olivito's attitude towards the process was concluded to be therefore "uncooperative" by the Ohio Supreme Court, towards the investigation and process itself;
They found that he was "uncooperative", even where Attorney Olivito had retained Attorney Richard Koblentz out of Cleveland, the month the formal complaint was brought against him, in the amount of $10,000.00 and Olivito had Koblentz file a timely, consistent and clearly stated written formal answer and denial with his direct input and drafting of the same.
That all discovery was undertaken by Olivito himself and he personally conducted four depositions and presented four of his own witnesses in his all day hearing before the panel chair in Columbus and that he submitted to not only one sworn deposition but another sworn open hearing testimony which submitted him to cross examination again.
Later and at the end of the entire disciplinary case's process, six months prior to the Supreme Court issuing a final opinion, Attorney Olivito had retained the late Max Kravitz for a retainer fee of $25,000.00--- to file what is called an "objections brief" to the Boards' findings and then had noted Columbus Attorney Max Kravitz and his fine and respected law partner Paula Brown make the oral argument stating that he did nothing deceptive whatsoever before the bankruptcy court, nor with the investigators, nor to the panel in their careful review of the entire case's records and documented evidence, in representing his interests in regards to these allegations at any time.
In otherwords, Olivito was at such critical times, except during the panel process and parts of key discovery deposition process which lasted about a month on the case's record, represented by competent counsel of record [even wherein he had a serious disagreement arise between the first counsel Mr. Koblentz , just prior to the panel hearing] Attorney Olivito in short, paid over $35,000.00 in lawyer fees only to be called "uncooperative" by the Ohio Supreme court where he fully otherwise submitted and participated in the process of both defending himself, attempting to reach a stipulated settlement and then arguing in mitigation on his own behalf, after a full eight hour open public hearing, on this related $150.00 bankrutpcy signature issue which otherwise passed the federal bankruptcy court system two years prior without much of a problem except this noted signature issue which did not PREVENT the bankruptcy from discharging in any way.
The Court nonetheless, in a manner evincing something of a bias or motive other than true fact finding created an entirely new, post hearing "charge" or alleged "violation" of being "uncooperative" and "wasting time" was NOT presented on review for any KIND OF DUE PROCESS defense or argument or review or post Board finding briefing, at any time, by any of my lawyers or myself.
Yet, this very same conclusion and flawed factual "finding of uncooperativeness" by the Ohio Supreme Court, served their own needs to find another alternative and additional basis to 'elevate' the sanction inside an otherwise, singular non materially damaging, and otherwise isolated first time in an entire career, technical signature, ethical violation case.
WE will address this part in a second portion of this particular blog post. But suffice it to end this initial part by stating, Richard Olivito was handed the heaviest suspension in this modern court's history for a bankruptcy/legal signature case...
... wherein the clients themselves again 1] obtained a complete and TIMELY discharge of ALL of their debts within six months start to finish 2]WHERE the clients admittedly never did PAY COUNSEL ALL of his requested fees [$300.00] prior to filing their petition as is customary inside such bankruptcy cases and 3] Olivito admitted openly and quickly to the signature issue when asked by the magistrate about it and offered continued representation but was 4] declined by the clients, despite having completed ALL the necessary legal work and heavy lifting and legal filings and petitions associated with such a bankrputcy case months prior to this hearing. 5] The petition created by Attorney Olivito and his legal staff, was the ONLY instrument that was present on the bankruptcy case file and they had in fact, paid NO legal fees to ANY other lawyer to complete this matter.6] Attorney Olivito present four clear personal secretarial and legal assistant testimony which was basically uncontroverted on key material relevant points of contention during the open public hearing portion of the pre decision process which develops the underlying case's record and the prosecution did NOT present ANY live witnesses in rebuttal, in their case against Olivito.
The Client: Mr. Michael Accola{ THE TWICE CONVICTED FELON: THEFT BY DECEPTION KIND OF GUY
The main client in this disciplinary case, and the chief complainant, with whom Mr. Olivito had spoken with and had been originally retained by, was a Mr. Michael Accola. He never submitted to a deposition by the local bar association, he was never called by the Mahoning County Bar Association to the stand during the one day open hearing, and he was never made to swear an affidavit against Olivito, although several key allegations of the Bar Association's complaint were solely founded upon his false allegations of what he either was alleged to have done or said or what Olivito did or did not say to him.
In otherwords, much of the main prosecution's case from the Mahoning County Bar association is purely based on hearsay "evidence" and/or simple false inneundo.
While Mr. Olivito has often represented criminal clients and clients with strong felony backgrounds, he has not usually encountered the same kind of convicted felons when representing such individuals filing a federal bankruptcy petition. Perhaps, indeed, he ought
to have been more careful.
Mr. Olivito only discovered AFTER the formal bankrupcty was completed, AFTER the represenation had ended and even as the disciplinary process had begun against him, brought by the local bar association, over the alleged mistaken signature issue, that Mr. Accola was a local Youngstown twice convicted felon...
Accola had plead guilty to defrauding homeowners of work related homeimprovements in the area, taking fees but not producing the related work product; i.e Mr. Accola had been convicted of "theft by deception" several years prior to coming to Mr. Olivito's office and asking for his second bankruptcy in ten years.
Yet, this client's hearsay comments about Mr. Olivito and his solid office staff and legal assistants were taken as gospel truth while Mr. Olivito's unblemished legal career credibility was held in strict contempt by the Chief Justice and his cohorts at the Board of Commissioners of Ohio's Lawyer Disciplinary system.
Lets try to find out why...
There is more and this is only the beginning. But what is important, is Mr. Olivito's follow up attempt to not only fight the other than signature issues in a legal, strong and documented fashion within the proper due process hearings afforded to him, but also how and what he did and discovered along the way in appealing the findings of these Boards and even the Supreme Court 's final opinion findings of fact, about his conduct, later.
This very discipinary action has become subject to more twists and turns and eventual issues which are presently pending between Mr. Olivito and this present Disciplinary system of the Ohio Supreme Court. Some issues are beyond this present blog post scope in part;
But please, do not read the Opinion of the Ohio Supreme Court as if it is based on real, actual entirely "the whole truth and nothing but truth" based factual findings.
What is being posted and officially stated about my legal character and professionalism is nothing short of a very serious false light campaign to smear a lawyer's abilities, his legal background and his capacity to function on behalf of clients, even when the clients themselves are twice convicted felons who have repeatedly withheld critical information to their lawyer, subverted the process to maintain the semblance of open and honest due process and have engaged in a special form of cover up of at least their own issues, within the Youngstown's area and by its hard working Bar Association in making sure this lawyer is not able to continue on with his signficant legal work inside their region and local bar area.
The work of Richard Olivito on behalf of civil rights litigants and those who have suffered serious constitutional violations, has been and remained the main focus of most of his entire adult legal career; Mr. Olivito fought hard over the last fourteen years to bring important civil rights issues in hard to reach, out of the way, smaller communities, to high public attention and helped to litigate many serious real, serious citizen civil rights cases before the various courts of eastern Ohio and elsewhere.
This particularly solo bankrupcty case represents a problem in that while Mr. Olivito admitted to the serious but technical error and signature mistake and clearly denoted it as something that ought not to have happened and is not otherwise defensible, or a model for lawyer conduct, nontheless, it was and remained a
isolated, one time, inadvertant issue which came up inside a difficult client's case, wherein the timing of the same became a problem for him and his clients.
Again, a solo lawyer can not benefit economically from signing his or her client's name inside such a modest and otherwise unremarkable bankruptcy petition in the selfish sense of the word.
This did not intend any economic or personal gain in ANY manner, for attorney Richard Olivito. His actions only furthered the client's petition and interests but mistakenly and inadvertantly so. He admitted to the same, more than once inside the formal process itself.
It also just happened to occur while he was in the midst of a national breaking news legal issue which was enveloping the City of Warren and causing major officials in Washington DC to take a critical look at what was happening in the Mahoning Valley region, including Youngstown and Warren police departments, where Mr. Olivito was then on the front page and headlines of every media organization for the immediate prior three months to this issue about the bankruptcy becoming a serious distraction to his important legacy and critical legal work and advocacy on behalf of those citizens and individuals.... whom the local area or state FOP do NOT want to have a dedicated and otherwise strongly ethical lawyer suing them in either a state or federal court anywhere or anytime.
Moreover, the FOP and the chamber of commerce of various Ohio municipalities, who both openly endorsed the Ohio Republican Supreme Court candidates and contributed heavily to their elections, even in 2004 and 2006, were also much less interested in having the Department of Justice in Washington DC coming into such regions and opening up federal investigations into their area's police departments mainly because the efforts of Attorneys like Richard Olivito have had a long and detailed competent history in eastern Ohio of doing just this kind of thing.... that in turn, helps to triggers such intense, very complex reviews by the Special Litigation unit of the Washington D.C. Civil Rights Section of the DOJ.
Taking A Moment to Breath and Ask Why?
The very outcome of this argument against this Ohio Supreme Court disciplinary case against Attorney Olivito brings to light several important questions.
Why would this kind of thing happen inside a lawyer discipline case in Ohio?
Has it ever happened to anyone else?
What would be the background and motives of a local bar association's interest in "getting" a non local originated lawyer and have him suspended from the practice of law?
Has this kind of thing occurred before, or elsewhere in Ohio?
Was there any potential conflict of interests that were being played out inside this otherwise singular, one time inadvertant technical violation case wherein the client got everything and more what they came to Mr. Olivito and paid him the sum total of about $150.00 for six months of work on their bankruptcy case.
The numerous 'found' allegations yet do not match up to the either the records, the sworn testimony and the plain certified copied documents and the defense of the claim on the grounds of "improper withdraw from representation" and "uncooperativeness" and most importantly, the "serious neglect" of a legal matter regarding the bankruptcy and the all important related lack of actual damages issue as addressed above.
Why would the court so suspend Attorney Olivito's license then for up to two years in such a case as this where the client's goals and aims were actually fullfilled by the subject lawyer's petition and work product, wherein the client got away without paying anything close to the market value of such legal services?
Another issue to be addressed is whether or not any one at the local bar of any status ever tell him anything about the nature of the prosecution which was being brought against him and how it was originally perceived?
Also, the follow up inquiry may ask if any courts in the Youngstown region ever mentioned this particular local Mahoning County Bar Association case while it still was pending and undecided by the Ohio Supreme Court, against him as a reason to not rule on important pending motion[s] before it on completely unrelated issues and unrelated clients but during signficant and continued important cases of any kind?
i.e. Did any Courts in the region ever use the pending issue of the Accola case against Mr. Olivito's clients, as a weapon against their best interests?
Also, as a practical matter, the question arises, why would the Accola's complain at all, since they obtained what they sought in the end, from his work product and efforts, --all that they could obtain----without paying Mr. Olivito much if anything, especially where the main party is a convicted felon locally.
Indeed, how did these clients' come into Mr. Olivito's solo busy law practice in the first instance?
Who are the powers behind the decision makers in this very disciplinary hearing process that came to such drastic conclusions that permitted or "caused" the Ohio Supreme Court to be able to make draconian and seriously false conclusions about Mr. Olivito and his character?
Did any of these important hearing officers inside this case have any interests or conflicts of their own which may have played a role inside of this hearing and Olivito's underlying case which ought to have been revealed as a matter of public policy, law and/or simple fairness and ethical conduct itself, before any such officer of the court made any judicial determination of the facts and/or law as it applied to Mr. Olivito's own presentation and representation of himself before the Board of Commissioner's one "due process" panel hearing.
Indeed, even the most basic question can be reviewed now in hindsight...
Did the Mahoning County Bar Association know who the Accola's were and what Mr. Accola's background was in the criminal sense of the word?
Was there any court in Youngstown that had actual knowledge or should have, of Mr. Accola's very serious problem with truthfulness?
This related blog posts will continue. The question which arises on the face of the disciplinary case which has issued suspending the law license of Mr. Olivito is Did the Ohio Supreme Court make its decision in this case related to Mr. Olivito and the bankruptcy matter in accordance with its own prior case precedent, and its own standards in finding a basis for elevating its sanctions for related conduct?
And finally, did it properly apply its OWN due process rules governing related disciplinary case sanctions and holdings for conduct of equal or even more serious value?
If not, what are some of the case decision of the same court which would say they did not....
...or have held completely varying opinions from Attorney Olivito's case on either similar or even much much worse lawyer conduct cases containing actual admitted criminal lawyer misconduct itself.
That is the topic to which the next related blog postings on this subject will address
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