Several items are clearly delineated within these federal cases relating to such a federal court review of state lawyer disciplinary proceedings and findings and rulings. Among them are issues of whether or not the state proceedings were careful with the fact finding mechanism of the underlying state hearing process .
Another item that the federal courts can review is whether or not the underlying state supreme court proceedings are properly affording respondent attorney litigants their entire and proper due process within these types of formal state lawyer disciplinary hearings. i.e. defendant or accused lawyers can point out any seroius due process violations that occured within the state proceedings that would create a manifest miscarriage of justice if it were to be relied upon inside the federal forum to simply mimic the same punishment at the federal court, which otherwise does NOT hear much less weigh the actual allegations in light of all the evidence pertaining to the alleged lawyer misconduct.
The first issue Olivito raised distinquished the basic numerous 'findings of facts' which the State Supreme Court either deliberately got wrong on purpose or chose to ignore or simply chose not to consider but were clearly contained on the well developed record of the state proceedings.
One of the main legal standards that allows or permits a federal court to vary or digress
completely apart from a State Supreme Court lawyer disciplinary sanction is what is called
the "variance of proof" standard when considering whether or not to impose such a sanction
created by the state court system inside their own federal court system inside what is termed
a "reciprical disciplinary case review".
Under this well settled legal doctrine established nearly a hundred years ago in a significant U.S. Supreme Court case which arose out of the State of Louisiana's supreme court process,
the Federal high court clearly stated that the Federal Courts are NOT bound to follow the
State Supreme Court in imposing reciprical disciplinary sanctions; The U.S. Supreme Court
in Radford v. Selling [and other related cases] clearly stated the various federal Courts are completely UNFETTERED by the state court's final conclusions and findings and the same federal courts can modify the same state supreme court's findings and/or they even could choose to not impose such a state court created sanction whatsoever when reviewing the same sanction for its application to its own lawyer system of ethical oversight for individual lawyer misconduct.
This case which was clearly cited repeatedly inside both Attorney Olivito's written briefs to Judge Sandra Beckwith and also inside two long oral arguments called and held by the district administrative judge of the Southern District last fall was clearly something which set a serious lawful and highly relevant legal floor or foundation for what Attorney Olivito was trying to communicate and even educate both the northern district and the southern district courts
in regards to imposing State Supreme Court derived case sanctions.
The Radford v. Selling case held that although the federal courts ought to carefully note and clearly carefully consider a State Supreme Court's findings and rulings in such ethical disciplinary matters, the same state court disciplinary hearings outcomes are clearly NOT binding on any federal court at any time or place.
It also held that the federal courts are clear to fashion their own findings in their own independent final decision as a matter of law when reviewing any application by a state disciplinary system for the lawyer to have his federal license suspended or completely disbarred inside a reciprical federal disciplinary system's hearing.
Included in this same analysis established by long standing federal precendent is the
notion that a federal Court can find that there were "such variances of proof" between what the state supreme court proceedings findings conclude and what an independent judicial review could reveal before imposing the same state created sanction inside a federal forum.
If such a variance derived within the state disciplinary system is found to exist, then to rely upon the same to impose reciprical discipline in the federal court system against a lawyer under such serious scrutiny and review would be to exhibit a clear injustice and reliance upon the same raises important concerns of a due process nature.
To impose such a flawed state procedure's conclusions and sanctions would be to otherwise further a clearly improper set of findings of critically mistaken, flawed or simply seriously imbalanced and supposed 'carefully determined' and officially 'weighed facts'.
The U.S. Supreme Court years ago addresssed this potential for abuse of the state lawyer disciplinary system so as to prevent the same flawed processes from being utilized within the federal courts themselves to acheive seriously flawed, incorrect, if not seriously constitutionally infirm results.
The Selling case and its progeny strongly suggests that the federal courts ought to conduct their own independent review, where requested by the lawyer under review, de novo, of the entire record of the State Supreme Court's disciplinary system to see whether or not serious and material 'variances of fact' exist inside any given disciplinary case in which the reciprical disciplinary process is triggered.But this standard does not seem to be the way federal courts, in this or other circuits, are viewing their role in the reciprical disciplinary process, today. There are some good reasons given as to why and procedural rules indicate another modified standard but that will be addressed later in this series of blogs.
The second critical basis that Selling sets forth as a legitimate independent basis
for a federal court to find in order to NOT impose the same sanction that the state disciplinary process did, is where there is found by an independent federal review a clear "lack or violation of due process" occuring within the state disciplinary system in reaching or obtaining its state court decided conclusions and judgment.
i.e. this exception is often noted as the "Due Process" issue as noted within the standard of review afforded to the federal system of state court disciplinary proceedings. This must be a significant and material due process violation which would render the underlying state court's findings inapplicable within the federal court due to a particular failure by the state court's procedural failings towards the individual lawyer or his underlying disciplinary case.
Having stated two of the critical independent basis of any federal court review of a state's lawyer system of ethical review and its opinions concerning a given individual lawyer state disciplinary case result, we now turn to what happened inside of Attorney Richard Olivito's own state disciplinary case developed over the past three years.
The case was brought against Mr. Olivito by the Mahoning County Bar association in 2004 arising out of alleged facts which occured in 2003. It involved a couple named the Accolas and their seeking legal services from Olivito in order to obtain among a few things, a bankruptcy that year. [Mr. Olivito had earlier worked hard on their only' son's small personal injury case and had obtained a favorable result for him so he recommended his parents to him for their bankruptcy.]
They came to his office in May of 2003 and sought representation for restoring the driving privileges of Mr. Accola and to seek a bankruptcy for both of the couple's debts.
Mr. Olivito clearly set to work early on for Mr. Accola's privlieges and he began to work with the couple's creditors, seeking information and generally gathering facts related to their parse records and very confusing financial situation throughout the summer of 2003.
But by Labor day weekend of the same summer, 03, with the assistance of an experienced paralegal, Mr. Olivito created and completed the couple's bankruptcy petition. As Ms. Wright
testified she recollects Mr. Olivito expressly supervising the work on the petition and she clearly recollects Ms. Accola stating she "was very happy and satisfied" with the final product or petition.
Mr. Olivito took control over the Accola file from his Warren paralegal and took it to his Boardman office. He then expected the Accola's to be excited about getting the petition completed and to come into his office and finalize the petition and file the same.
By mid Setpember, Mr. Olivito sought by phone payment of his balance due of the funds he stated were due and owing him in spending the extra time and effort in creating the same petition, prior to his filing of the same. This effort went on from right after Labor day 03 to early to mid- October.
After about a month delay occasioned not by Olivito but first by an odd non- response by the couple and then later a dispute raised by the husband over this additional modest fee request, made in writing to the Accola's after the petition was completed, in a letter created and sent to him by Ms. Higgins, as she testified to the Board panel hearing, Mr. Olivito then met with an upset Mr. Accola in his office in mid October, after Mr. Accola had received this professionally drafted letter indicating that after the fee was finalized the petition could be filed. The letter requested an additional $300.00 in fees for the completion of the work on the bankruptcy.
On the early evening of October 15th, Mr. Accola came into the office in a furious manner, when only a young secretary, Jessica Anderson was present. He demanded to know where Mr. Olivito was and he wanted a confrontation even with the young secretary.
After a very tense meeteing, where Mr. Accola hurled insults at Mr. Olivito's secretary and used foul language on both his young secretary working well past 6 pm, and towards Mr. Olivito, who was on his way back to Boardman from Warren working late in relation to the police cases there, these two came to an agreement on the remaining balance and the petition's filing date.
After agreeing to pay Mr. Olivito the next day after work, Mr. Olivito then agreed to file the bankrptcy petition the next day, on October 17, 2003. Mr. Olivito expressly recollects asking Mr. Accola to go over the bankruptcy petition with him at this same office meeeting, the only office meeting held between Mr. Accola and Mr. Olivito individually, during their six months representation which last another sixty days after this mid-October evening meeting in the
Boardman Ohio office.
The young Jessica Anderson was both present and listening carefully to the originally heated discussion and then the two reaching a common understanding and agreement being concluded with a handshake and invite to dinner being held out by Mr. Accola in order to pay Mr. Olivito, the next evening after work.
Ms. Jessica Anderson clearly recounted this entire Mid October meeting, before the Board's panel hearing, during her hour long testimony in Columbus. She recalled the furious Ms. Accola accosting her in the office, unexpectedly, with foul language causing her to become very upset and then hearing the "agreement" and subsequent calm Accola 'invitation' to have a beer w/ Mr. Accola coupled with the statement he would then promise to pay Mr. Olivito the next evening.
Notably, she also clearly recollects Mr. Accola bringing the letter we sent him into the office with him and throwing it down or shaking it in his hand as he was yelling at her about me before I came into the office.
Thus, in this manner, the completed bankruptcy petition was both created and then filed the next day as agreed upon by Mr. Olivito, while expecting his balance payment the next evening after work.
It was this very same filed bankrpuptcy petition was then relied upon by the Northern District Bankruptcy Court, within ninety days or three month later, after it was filed by Mr. Olivito with Olivito paying the $200.00 filing fee out of the original $ 400.00 fee paid to him by the Accola's to fully discharge the Accola's debts as listed for the couple,
This petition was discharged without amendments as noted nor any reservations or any changes having to be made to the original petition, which was created for the Accola's by Mr. Olivito.
{It was also undisputed between the parties at the subsequent disciplinary hearings that the Accola's did still owe Mr. Olivito additional fees even when they filed their complaint against him, sixty days AFTER he created and filed their complaint on their behalf, in December of 2003, just weeks before it operated without amendment to fully discharge their serious debt load}
Thus, according to Ms. Elaine Graves, the federal magistrate who relied upon Mr Olivito's work product to grant the discharge of the Accola's full debt load, the bankruptcy otherwise "discharged on time". It had been filed in mid October and it was fully discharged by January 12th, 2004, well within the normative routine time for a bankruptcy to discharge in the area's local bankruptcy court system.
[See page 135, Magistrate' Greaves deposition submitted to the Supreme Court's Board of Commissioners and hearing panel in MCBA v. Olivito panel hearing]
And indeed, it did and it resulted again, in the discharge of their significant debts, fully without modification or amendment. Even prior to filing the petition, evidence clearly was
demonstrated to prove Mr. Olivito had protected the interests of the Accola's in terms of
both gathering additional creditor debt information apart from the Accolas and also
by protecting the Accola's financial interests in and through handling creditor phone calls
about their pending bankruptcy.
Yet, somehow and for reasons not quite clear, the Accola's sixty days AFTER the petition was filed and although NEVER making good to Olivito or his secretaries to pay the remaining balance, stated they became dissatisfied with Mr. Olivito and filed a complaint with the local bar in Younstown against Mr. Olivito concerning the manner in which Olivito worked or in their view "failed to" work or appear with them and sought to obtain this bankruptcy discharge for them.
[What is most unique is the complaint's couple, having filed a bankruptcy just five years prior, obtained another complete discharge for over $100,000.00 in debts, early in January of 2004, solely with and in reliance upon the efforts, the representation and work product of Mr. Olivito, alone, in less than seven months after retaining him for less than $400.00 for the bankruptcy, and in less than four months after he personally had filed the related bankruptcy petition and paid the filing fees upon filing the same, in October of 2003 for these clients. ]
It was common that such creditor hearings in a chapter seven bankruptcy at that time in 2003, in Youngtown's federal northern district bankrputcy court were NOT held until 60 days after the filing of a complaint, which in this case, was December 15th, 2003,
sixty days AFTER the filing date of October 17th.
[This hearing date schedule is completely controlled and set by the federal magistrate hearing the petition, by law, and not the lawyer who created and files the same. It is operational by law and rules of the bankruptcy courts themselves, not the individual lawyer representing the petitioners. Nonetheless, the bankruptcy that the Accola's sought and Mr. Olivito and his staff and assistant created was fully investigated, gathered and compiled and completed and finally discharged in early January, a month after the original December creditor's hearing, less than a full seven months, from start to finish.
Again, as stated above, Ms. Graves, duly noted, when asked about this discharge date at her deposition in relation to Mr. Olivito's disciplinary hearing, where much was being made
by the local prosecutor against him for "neglecting these client's bankruptcy and legal needs", the magistrate herself stated:
"in [Youngstown's] bankruptcy court, a typical bankruptcy petition of this nature, takes approximately six months...start to finish ..."
the Magistrate then added a single critical direct qualifying remark;
"depending on the level of cooperation the clients gave to the lawyer representing them and doing their petition..." [E. Greaves, dep, pages 135-136]
We will see how this latter but critically important experienced local federal magistrate clearly provided her expert demonstrative observation concerning the local bankruptcy's court's time frames for a 'normal' bankruptcy to discharge and then how this same clear proposition would be both ignored, covered up and then manipulated seriously by both the state disciplinary Board members, the local Youngstown bar official and then how it was decidedly simply disregarded as "unimportant" and "irrelevant" and simply buried by all seven of the Ohio Supreme Court justices to find against Mr. Olivito in an express manner on whether or not somehow he had materially delayed this bankruptcy and causing it to be not discharged in a timely manner and thus, enabling the state court to so find that he somehow had 'neglected the clients concerning their bankruptcy.'
All this evidence "shaping" and 'discounting' concerning this single issue, [among many others] was done first by the Youngstown bar lawyer and panel hearing officer herself, in Columbus, then the Board of Commissioners in their 'findings and conclusions of law' and then the Supreme Court of the State of Ohio, all of which evinces a clear"variance of proof" issue that is clearly contained on the underlying case's record.
What were then some of the issues that would trigger the application of such standards referenced above of a federal review to Mr. Olivito's 2006 state disciplinary case's final order which found several 'facts" upon which the Supreme Court of Ohio relied upon to sanction him so severely with a full one year actual suspension in light of this case's facts, the first such any disciplinary case ever brought against Mr. Olivito in his fourteen years of solo law practice?
[Also, another issue arises at this point; to be commented more fully later in these blogs, in view of whether or not this severe one year actual suspension sanction was in accordance with the Ohio Supreme Court's own internal consistent treatment of other lawyers for related or similar case precedent on such similar conduct as alleged in this Accola case against Mr. Olivito?]
These are issues we now turn our attention to.
The first issue Mr. Olivito raised before the Southern District Court was the 'variance of proof' standard issue which he believed the state supreme court record demonstrated a clear problem with within the same.
In this initial portion of his brief and argument, presented to Judge Sandra Beckwith first in a long solo hearing in September last fall, then again in another several hour hearing, in November of 2006, Attorney Olivito references the presentation at his state panel disciplinary hearing [taking place in July of 2005 before the Supreme Court in Columbus at his Board panel hearing] of his three then relevant solo law firm secretaries to this Accola Bankruptcy matter.
These three live witnesses were brought from Youngstown to Columbus, to testify, live and in person and under cross examination before the panel, in a strongly supportive manner that evinced a completely different narrative and account of that which the prosecution and the complaining parties were alleging against Mr. Olivito.
These three witnesses testimony lasted for over three hours. Ms. Jessica Anderson was not once effectively cross-examined by either the Mahoning County Bar prosecutor [not one question was asked when offered the opportunity to do so] or ANY of the three panel members.
Ms. Robin Wright was asked a very short and negative couple of questions by the Mahoning Bar counsel who was quickly and effectively negated by the clear and firm responses of Ms. Robin Wright, as she testified via a cell phone live connect.
She was then asked a follow up set of brief but important questions by the panel chairwoman, Ms. Sandra B Anderson of Vorys Sater, a large downtown Columbus corporate defense firm with strong ties to both the state FOP and the State Republican party office holders, including the Cheif Justice of the Ohio Supreme Court of Ohio.
Ms. Higgins, another part time secretary also took the stand and testified. She testified as to what she knew about some of the critical details that were being leveled against my office management and whether or not and how Attorney Olivito did or did not attempt to connect or communicate with both the federal magistrate and/or the clients during their representation periond from when Ms. Higgins first came to work for my office in October of 2003 on thru when she filed personally the motion to withdraw with the veteran Bankruptcy Judge who instantly granted the same for me, at my request for the same, on the last day of December, 2003.
All of these women's testimony was clearly and firmly stated and presented without reservation. They were my witnesses and they were witnesses who volunteered to come to testify on my behalf on what they felt collectively was a clear miscarriage of justice occurring within the local bar and the State proceedings.
They were all NOT presently employed by Olivito when they appeared before the official Board panel members in Columbus in July of 2005.
Although every one of these witnesses testimony went well beyond ANY thing that was ever asked of any of them on cross examination in the limited scope such any cross examination was conducted mainly by the one panel chair woman, Sandra Anderson towards them, nonetheless, by far, the ONLY portion of their testimony which ended up being commented upon and utilized and made a basis for the very severe and out of balanced and blatantly false "findings of fact" were the very few questions asked of Ms. Higgins and Ms. Wright about very limited subjects and scope.
None of the Board hearing's findings nor any official conclusions, from the panel hearing members to the Board of Commissioners, on up to the final Supreme Court's official record and adoption of its lower Board 'findings and conclusions' and its final orders contained ANY reference to the hour long testimony given by Ms. Jessica Anderson, without ANY cross examination being done of her, whatsoever and none that was ever utilized against the respondent, Richard Olivito.
Ms Anderson also testified as did Ms. Higgins that both law office secretaries continously sought to contact the Accolas AFTER September and in particular AFTER the law office had filed the petition in mid October but to no avail.
They even had appointments set up with these clients but they continously and stubbornly refused to not only keep their appointments but they became very difficult to either speak to or merely reach by telephone, even when the secretaries knew the Accola's were home during the various phone calls made to their residence between October and December 12th, 03.
This in turn produced an office concern about their final payment and whether or not Mr. Olivito ought to remain on their case prior to the scheduled creditor's hearing in mid December.
Ms. Higgins also notes they sought to make appointments with the Accolas in order to have them come into the office and speak w/ Mr. Olivito. All such efforts resulted in failure and simple no shows or stubborn silent refusals to speak.
No complaints were filed against Mr. Olivito by the Accola's during this same significant period of time between October and December 12th. The petition was already created and filed and a creditor's hearing was scheduled on the same for December 15th.
Considerable law office time was being spent on just trying to either contact these client's by phone and/or have them make and keep office appointments.
Ms. Higgin's stated under oath before the Supreme Court of Ohio she told the Accola's directly by phone and left messages by phone that they could come to the office and pick up a copy of their petition.
Again, no payments were made to the office or secretaries and no explanation was provided as to why it was not being done by the clients.
Why was any of this significant? We shall explore this a little later in detail but remember the 'variance in proof" standard discussed above and the due process issue of "right and wrong"as it ought to obtain and pertain to any serious legitimate federal review of state disciplinary proceedings of a solo lawyer?
These live witnesses testimony and what they had to say and what in the end, was "allowed" into the record so as to "fit" the outcome sought by the panel and the MCBA [Youngstown Bar Association] is going to be something to further develop below.
But the broad ranged, hours long direct live testimony of ALL three respondent or defense witnesses which was highly probative and uncontroverted and very favorable to the respondent, did not appear in any way in its significant portions and most critical fair and objectively reasonable and very favorable aspects, inside either the Board's findings and/or even later, within the State Supreme Court own adopted findings.
The Court actually went even further in regards to these various favorable witnesses of Attorney Olivito and completely ignored or disregarded their cross examined sworn testimony before its Board, when making a very one sided, completely imbalanced series of 'findings' with respect to the underlying case's facts, completely contra the actual very clear and completely uncontroverted three secretaries live testimony where their testimony clearly contradicted and destroyed the numerous false allegations leveled against Mr. Olivito by the Mahoning County Bar counsel Ronald Slipsky and then adopted by the panel chair first, Sandra Anderson and then later by those at the full Board and beyond.
These three live witnesses's sworn testimony, particularly one of them, Ms. Jessica Anderson, was simply and wholly ignored and either never fully entertained or actually relied upon
or it was simply intentionally taken in extremely tiny measure and piecemeal aspects, by the Court and its reviewing board, both choosing to take such very limited one line or one sentence aspects of a couple of minutes of otherwise, hours long probative testimony and twist the same limited tidbits, into what they felt would "fit" their already programmed outcomes which were based on biased assumptions about Mr. Olivito and his law abilities and practice.
The court in its final opinion not only wholly adopted a entirely bizarre "omelet" version of such testimony but they had actually worked hard to disregard all but the most limited few sentences as indicated to make it all neatly square with their 'matrix' of a predetermined set of mental impressions regarding Attorney Olivito and then simply discarded those salient and relevant portions of the same live witnesses testimony which was not either at all challenged during the same "due process hearing"in Columbus and that majority portion which completely did NOT square with either their desired outcome or what they thought they had in a bizarre ethics prosecution over a one time, isolated, minor technical signature issue which got blown all out of proportion into something completely unrecognizable but neatly suited for the ends and means of those sitting in Youngstown and Columbus who could derive some type of benefit from doing just this kind of serious ripping of the due process rights of Mr. Olivito and mischaracterization of his actual work and professional representation two very difficult clients who were acting very strange inside a federal bankruptcy proceeding, just like the state disciplinary Board's proceeding became equally a theater of serious disregard for the truth regarding the legal representation of these clients and this fully discharged and otherwise timely sought and obtained bankruptcy.
In this brazen manner, procedurally, none or most of this strongly probative and favorable testimony from three separate live witnesses, was afforded any relevant or equal value or even its due weight by any Board member or at any part of the process afforded to Mr. Olivito, much less was this critical testimony even mildly considered by the State Supreme Court in its final Disciplinary decision regarding in its opinion the relevant and operative facts pertaining to those strongly marshalled facts Mr. Olivito's raised in his own defense of these related ethical allegations.
Where such marshaled testimony and evidence threatened the 'matrix' view of the "official party line" that somehow Mr. Olivito "must have neglected the clients" and then, equally rather bizarrely "improperly withdrew without due regard for the best interests of the clients", as the Supreme Court has found, in support of the Bar association's dutiful false smear campaign, without any true probative and relevant evidence to genuinely show such one fact in support of the same kind of allegations, this kind of actual objective, clear and strongly favorable evidence was easily and immediately dispensed with by every state official involved in this process at every critical "due process", so called, stage of the alleged process itself;
In the end, when it could not be attenuated, qualified, discredited, denounced or rendered in admissable or irrelevant...such clear and probative if not striking evidence was simply ignored by these state employed lawyers and the Supreme Court and its boards acted as if had not been actually obtained nor stated on its open own court's proceedings' record.
IN fact, they collectively as a whole, as a major supreme effort, were so in denial of these humble three live witnesses actual proportionate and objectively demonstrated and extrinsically supported testimony that they even gave a nice commendation to Ms. Higgins for being a "seemingly honest person"...but then dutifully described her one single lapse of memory occurring from something two years before in critical detail and made it sound as if this reduced the rest of her live testimony on much more significant and probative and material issues to nothing but unreliable babble.
As stated above, Ms Jessica Anderson's unequivating and determined and unchallenged whole testimony was simply wholly dismissed. Not one comment, not one negative or positive description and no distinguishing of this witnesses's statements or facts; as pure and whole and truthful as it could be read and listened to, it was equally as determinedly snuffed from the later determination of so called "facts and conclusions of law" in the Board of Commissioners and even twice more forgotten by the Supremes.
First, the secretaries materially challenged thru their testimony that Mr. Olivito was somehow negligent, if at all, concerning the Accola bankruptcy and that he acted at all times
relevant in a considered, professional and ordinary lawyerly way towards clients that were both very confusing if not very peculiar but also difficult and "complex" persons who made it a game of 'catch me if you can' as to getting back in touch w/ Attorney Olivito contra to Ms. Accola's testimony that she had herself a very difficult time to get in touch with Mr. Olivito.
What Ms. Accola did not admit or express or tell the Board via her deposition was that
she 1] had clearly the wrong starting date as to when the professional relationship began
between her and Mr. Olivito...admitting that she was "terrible with dates" she then tries
rather anemically and very revealing manner, why she can state contra to her immediate
prior statement of being "terrible in my memory w/ dates" that she can "clearly remember
when she came to my office; and w/whom she spoke...it was "one of those people" i.e.
a black female from Warren, Ohio...that Mr. Olivito had employed at the time, in his office, who was a woman, she admits to calling and clearly testifies to: "I spoke to an ..black woman and i know it was March of that same year because we spoke of his work on "those people's cases" in Warren and how Mr. Olivito was "working only apparently on those cases"....
Indeed, Ms. Accola the wife of the chief complainant and the chief witness for their seriously flawed prosecution, clearly testified "i know when it was because i recall the female i spoke with and her....odd sounding voice...you know.."
...by which Ms. Accola meant, a "black person's" voice...
thus, Ms. Accola and the MCBA [the Mahoning Bar Association] thought Olivito would be confused by this and not remember exactly at this point who she was talking about;
Ms. Accola was correct; Attorney Olivito had employed part time a black female receptionist in my small solo Boardman Ohio law office; yet the fact would hardly support their stated position and argument as to when the first date of representation begun between Ms. Accola and Mr. Olivito. They claimed it was March of 2003 and this fit their allegation of negligence claim.
i.e. if they could establish March of 2003 as the beginning date of the legal representation, then there would be a better case for finding some negligence on the part of Olivito in simply getting to the bankruptcy filing, in the objective sense; instead of a six month period from start to finish it would have been eight months, not a significant development but one that could inure to their case's 'narrative' against that stated by Mr. Olivito.
But Olivito remembered something extremely probative, relevant and critical to this female part time secretary's employment;
its true, Olivito had employed this woman, the only black female that year 2003; but there is one very grave problem with Ms. Accola's assertion that she spoke several times to 'this woman' and "thus I am certain it was March instead of May when we first retained Mr. Olivito..."
Why? Because the single black female about whom she spoke and testified about discussing the "Warren problem" i.e. my police civil rights cases in Warren which begun in the summer and became very high profile in the media that same summer and fall...only began to work for me AFTER the cases in Warren concerning the police issues first arose... which was early July
of 2003, that summer, not one day before, given the Lyndal Kimble incident occurred on June 28, 2003 and I did not have ANY clients in Warren prior to this date.
The girls' name is Jamie Harris and I met her in the immediate aftermath and intense media glare of the Kimble matter which I became involved with on or about June 30, 2003. She came to work for my Boardman law office later in July and early August, only. She gave an affidavit that she never knew me prior to this and only worked for this brief period of time, taking some of the intense load off of my small solo office practice in light of super intense national and regaionl media glare of the Kimble case Warren police events.
Ms. Accola stated this was what they had briefly spoken about... and she rested upon this very conversation to state
Indeed, "Mr. Olivito's secretary [black female] clearly spoke about the police problems with me during this first conversation I had with his office...sometime after we had just come in to
retain him for the same..."
But this places the conversation with either a non existent black female who never worked for me, at least in March or April or May or June of that same year because, I only came to know the one black female part time secretary AFTER JUNE 28, 2003....the same one I sometime later that summer employed in my office for receptionist duties related to the Kimble case events.
Thus, Ms. Accola was clearly about FOUR MONTHS OFF in her time recollection and reliance upon the "single black female conversation" as a basis for her "certainty in knowing that it was March , not May" that she had come into my office with her husband and had retained me to do the bankruptcy and driving privileges case for $400.00 combined.
Olivito clearly demontrated he had NOT been in Warren and began to represent his first significant black person's civil rights case in Warren, until AFTER june 28, 2003...
This was some FOUR MONTHS AFTER Ms. Accola at her deposition testified that she
"was certain of the time because i spoke to "one of those people..." at the time....
This black female provided both an affidavit which was submitted to the panel and Board of Commissioners and the Mahoning County Bar Association's bar prosecutor, but she also answered the call to attend the panel hearing itself, which she did, but very late in the day and she did not take the stand as a result.
The black female COULD NOT have spoken to Ms. Accola contra to the allegations of the complaining witness brought against me by the Mahoning County Bar ASsocition supremely because; I did NOT EVEN MEET her UNTIL AFTER JUNE 28,....
Thus, there is a significant 'variance of proof' between what the actual record demonstrated and my other secretaries could support and did testify to, and that of what "findings of fact" the Board and the Supreme Court actually chose to adopt and make it appear as if i were lying about this "commencement" date as between the Accola's and Mr. Olivito.
Why is this of any significance? Because the panel heard and as the Board found and the
Supreme Court also accepted as proven and "demontratedly clear", that somehow Mr. Olivito
had "neglected" the Accola's bankruptcy and therefore had violated an additional ethical
directive which makes it a violation to improperly and unduly neglect or delay a client's
case...
Is there any thing to this allegation and again eventual finding of the Supremes?
If so, one would think the commencement or starting date of any attorney cleint relationship would have to be first established; and in a backhanded manner, the Accola witness provided the one true indication of when Ms. Accola first spoke to me or my office by phone as she recollected; it was at least ONE month AFTER they initially came in, in May according to my records and recollection and by evidence, early May...
The Accolas starting date of their request for me to become their legal representative on two legal matters was of some interest then, if a neglect charge were to be made out against Mr. Olivito...or at least one would consider the same...
So, if the Supreme Court says they agree w/ the Board of Commissioners who all state
"indeed, Mr. Olivito did neglect these persons legal interests for which they retained him"
one would think then they simply adopted Ms. Accola' deposition testimony at face value
contra to the evidence presented by Mr. Olivito on this point;
Not so. Ms. Accola was made out to be either seroiusly creative or creatively lying about when she "was certain" when the legal relationship had began, in her poor memory's view because, she stated, "it was March when i spoke to this ...woman..."
AS clearly demonstrated at the time of the deposition and later thru the very person with whom she spoke stating, she had NOT met me until late June/ early July of
2003, Ms. Accola and the Supreme Court get lost anyways as to what then was the exact
time frame for when Mr. Olivito supposedly began this legal relationship and when
he was to supposed to have neglected it; the problem is, just from the start, given the clearly uncontroverted and 'time committed' statement of the cheif complaining testifying witness
on point, the relationship began supposedly four months prior to when she actually spoke with teh black female part time secretary Mr. Olivito had employed.
This was the first variance of proof issue; numerous others would follow.
What was odd, even when Mr. Olivito clearly blew away the cheif complaining witness's
allegations and "commencement date" of their attorney client relationship, nonetheless,
teh Supreme Court would simply forget to mention Mr. Olivito, his witnesses and his documentation and clearly stated evidence would completely vary and contradict this witnesses allegations as to her "certainty" they nontheless, simply forgot the importance it appears of establishing this "commencement date" for the purposes of PROVING by CLEAR AND CONVINCING evidence that indeed the neglect charge was based upon seroiusly flawed if not completely and seriously erroneous if not fabricating testimony missing the all important
commencement date of the attorney client relationship by at least four months as state above.
Nonetheless, when the Supreme Court of Ohio found through its adoption of the Board's findings that indeed Olivito had neglected his client's case because as we shall see later,
by ANOTHER series of VARIANCES OF PROOF factors which again clear, uncontroverted
favorable testimony of Mr. Olivito's three secretaries before the panel hearing clearly
chose to engage in with outright deliberate choosing to ignore, or collective and selective
amnesia.
Mr. Olivito's three secretaries testimony clearly and completely discounted ANY allegations of neglect in this manner:
Ms. Robin Wright, who Mr. Olivito utilized to prepare the bankruptcy clearly and unchallenged testified that she spoke to Ms. Accola about her bankruptcy in late August and early September of 2003 summer; She testified that Ms. ACcola did NOT produce all the necesssary documentation of their debtor status, has she had promised or believed she had
when Ms. Wright first began to work on this file.
Ms. Wright stated however that the office and Richard had not only directly supervised her
but that the office and herself had clearly worked to obtain entire sets of finanical records
of the clients without ANY assistance from the clients in obtaining critical debtor information
or documentation which was then used in the preparation of the key bankruptcy petition.
What is clear is this; the Accola's admit and clearly was corroborated by Ms. Wright and not just Mr. Olivito that the all important petition was created out of direct and express efforts
which were made on the client's behalf, throughout the summer and early fall by direct unilateral efforts of the lawyer and his staff who both could NOT have completed the client's petition without the same [but was admittedly NOT provided to the attorney by the client's even though it was THERE responsibility to obtain the same]
and it was clear, that the Clients were benefited by the same extra and unilateral effort
by Mr. Olivito and his staff, in taking the additional time and careful consideration to so find these additional numerous debts and accounts information which amounted to over 30,000
dollars in extra debts which were then eventually correctly placed on the petition and then discharged, PRECISELY BECAUSE MR. OLIVITO and his staff, thru his instruction had
clearly taken the limited additional time, because the Accola's had failed to produce the same critically necessary documentation themselves.
So far from being neglectful and delaying in nature, Mr. Olivito and his paralegal who prepared the actual petition for the clients were PROACTIVE and very much engaged in protecting both the client's creditor status and their debtor's petition and ONLY completed
the same, WHEN THEY THEMSELVES HAD DISOCOVERED LATE IN THE RELATIONSHIP
such related tens of thousands of dollars of additional debts which teh Accolas never had presented anything close to a coherent or conclusive and complete picture of AT ANY time,
from May thru August to their attorney they supposedly came to for a chapter seven bankruptcy.
What is clear there is a clear variance of proof on teh record of the proceeding thru direct
corrobarating witness evidence who testified "live" in person before the very fact finding
panel hearing as to what she knew, did and how she was clearly instructed, supervised and
ultimately directly engaged with Mr. Olivito in seeking and completing these non forthcoming
cleints in relationship to their bankruptc.
Ms. Accola when confronted in her deposition about this fact; the Olivito law office and staff "going out" and finding entire sets of entirely new financial debts and accounts, which were NOT disclosed to him, at ANY time during the May thru August period, she admitted to the same
facts by curtly and arrogantly stating; "oh, yes, I did not supply those records to Mr. Olivito...either he or someone at his office had obtained those on their own..."
This was a direct and uncontroverted quote by the cheif complaining witness inside this
State Supreme Court Discilinary case and yet AGAIN it was both ignored and/or simply
swept under the rug and the Court acted as if again it WAS NEVER said inside a formel sworn deposition statement directly being on the most relevant issue affecting this cases'
neglect charge against Mr. Olivito.
What is amazing Ms. Wright clearly testified ALSO that the bankruptcy petition was DONE by labor day weekend of September 2003, even though the prosecutor for the Mahoning Bar
clearly tried to get her to state it was "late September was it not?"
She says, emphatially, "no, i clearly recall it was labor day weekend because i had taken it home"
The court's panel chair and panel hearing and later Board members then chose to simply again
openly and deliberately ignore such an unequivical favorable witness's testimony and simply
concluded "we find Mr. Olivito neglected these cleints at least by one month."
This was the adoption of the facts also by the State Supreme Court.
When this was brought to light by Mr. Olivito at the southern District as to just these two rather involved and twisting "factual allegations of neglect", and how the real, evidence clearly
evinces a completely different or 'varied' actual record and narrative, the Southern District Court also simply failed to apply their own federal precedent standard which requires such a
reviewing court to consider seriously such very "variances of proof" between the State proceedings and that of the Federal as those which are material and sufficiency enough to demonstrate that "something went wrong" at the lower court level.
Indeed, "something serious went wrong" as the federal precedent allows and instructs its reviewing federal courts to do about imposing the same discipline that a supreme court
has done itself after making less than true, genuine or merely truly fair and open and democratically valued live witnesses statements and opponent admissions which to any truly
independent judiciary would have no choice but to readily adopt a much different if not radically different view of these most basic "variances of proofs" and alleged "facts" and thereby
negate or find that the clear and convincing standard would NOT support a finding that the lawyer somehow had "neglected" these clients bankruptcy for 'at least one month'.
Such a statement can not be found or supported by any material evidence inside this
cases' real live testimony and documented evidence.
It is even crossed by the serious party opponent admissions to the contra as Ms. Accola admitted that "she did NOT obtain those records, [the additional 30,000 in debts] that those "must have obtained solely by Mr. Olivito and/or his office" sometime after we came to him
Da? Does any of this make any sense?
Write, let me know and I will continue this competely real life story of how the state supreme court of Ohio knowingly supported a record which was otherwise corrupted and lacking in integrety much less simply fair and honest and openly viewed in a true and geniunely balanced manner.
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