The Massey Energy v Caperton case, is a significant Due Process and game changing case recently decided by the U.S. Supreme Court, in part, due to the award winning article written by Adam Liptak of the New York times regarding the Ohio Supremes.
Like most major impacting cases, affecting the state of the judiciary in states like Ohio and America in general, this case due to certain business ties, is being made all too soon, invisible, if not, safely, forgotten by most major media in the State of Ohio and beyond. Perhaps, it may be they just don't wish to face the stark reality that justice in America, for some time, now, has not been the thing of what most American's are led to believe by various sectors including the media and by some measure of expense, the high court's themselves often portray and try to make people still believe what it isn't.
In part, it may be also, major media corporate interests don't want to turn a true investigative eye on the serious corrupting and affecting interests who hold such all too obvious sway over the present Supreme Court of Ohio and numerous other states high courts, even when a paper like the New Times and well documented evidence, from judicial Center's are willing to put some substance to the issue and to provide at least, some political cover over any would be true investigative effort about the serious bad influence and bribery of high court officials in Ohio and elsewhere by large donor law firms, chamber of commerce interests and other significant special interests with business to get done at this level of operations and government.
The Caperton/Massey Case indicates, there may be an end point at which major donor funding for major supreme court races, like those in Ohio for the past eight years, is to be perceived within the context of a Constitutional level violation terms. In fact, such a violation of major donor special interest funding over such high courts and their actions and decisions, is truly a civil rights type of 14th Amendment Due Process violation as per the arguments for the Caperton side has argued, for those affected citizens and individuals and party litigants who have been so adversely impacted by powerful donor groups and interests who have conspired with the republican party across the State of Ohio, West Virginia, Indiana and others to ensure justice is always firmly dispensed, in a "philosophical" favor or "bent" towards those interests who have the deepest pockets, both on the bench and those who are willing to fill those pockets of those whom serve on the bench...again, both here in Ohio as it has been for the past eight years and among numerous other states.
NOW, in light of Caperton, we need as individuals and groups to not allow the elites of a particular legal profession, or subgroup such as judiciary formed committees who already are all too well entrenched to begin to make the new rules regarding when a justice must recuse themselves given the corporate or major donor special interests are helping to pave the way for a results oriented "philosophical" outcome based series of decisions.
What instead, is needed and required, is an independent, objective "policy" for the various states when such decision, that will be responsive to the will of the people, given such a set of rules, will clearly directly affect every citizen and ordinary individual who may appear before such courts and whom, least we forget, are by definition, the true power of this supposed democratic experiment we refer to as the United States of America.
In one way, we need to immediately ask of ourselves, why do the people of our nation, continually default their rights and their voice and power to the special interests and those who are most closely aligned with the same over the most basic functions of a governmental branch as critical as the judicary?
Could it be, at least, in part, because the media in affected states, like Ohio and elsewhere, don't truly wish to report the impact and the possibilites of what can change if we would educate our common populations and the people across such states and America itself, on the impact and the consequence of major donor money
on today's various high courts? Could it also be reported that the people's courts, are not exactly run for and by the people, today, if in fact, they ever truly were in the past 120 years.
To this end, the Midwest Center is focusing its immediate attention on making known the strong message of the recent Massey v. Caperton decision and the unique status now left to the states, the various courts in the wake of Massey and to assist to raise awareness, that the people of the states are to have a key and strong voice, in recreating the standards and 'floor' for when and whether a justice can be perceived as being someone overinvolved in less than an objective impartial form of justice, and/or is in fact, engaging, individually or as a whole in nothing but crass political and personal 'self dealing' ...when it comes to serving on the high courts, and deriding, the interests of the people and those ordinary citizens, and advocates, who often, have to appear in front of them.
We need to stay engaged even with the solid positive result of the Caperton case. Its not as complete as nor an absolute clear victory for those of us who have been watching and dealing with the issue for the past three or more years.
Yet, it will be a solid guide, even as we think it not as strong as we believe it ought to have been, given the four republican conserivate major [major donor] votes on the Supreme Court. Given Justice Kennedy's and the more moderate to liberal four others willingness to shift the paradigm of major donor interests among state high courts, in terms of viewing such a challenge as one clearly implying a Constitutional Due Process clause level violation, if even ever so slightly, the basic hands off or 'laize faire' approach of a former finanicial capitalistic approach to electing overly biased state supreme court justices, as happened in the West Virginia based Caperton case's purchasing of a seat, to get "results driven" outcomes, is probably a thing of the past.
Furthermore, advocates, court watchers and the citizens of our states, have to make it clear that the Court's recent decision has in fact, changed the rules of game, when it comes to the major donor funding of courts like Ohio's all republican major money bought and conglomerate mobbed up Court has itself, been found so emeshed within.
Our present state court is an all republican court, in a state which that has no other major state elected officials either retaining or obtaining state office or power, in the past four years; this political fact, in itself, bespeaks of corrupting influence of the same kinds of special interest who created the problem in West Virginia that formed the basis of the Caperton decision as having a very firm root on the Court system in Ohio.
Post Caperton, it is now no longer assumed that such endless amounts of cash, given to a particular 'cause' candidate or silent candidacy like those in Ohio, all too often, will NOT then, be subjected to a serious constitutional challenge, if its done in the manner its been orchestrated by certain special interests in Ohio and elsewhere this past decade.
This decision, in effect, should affect the hedgemony of the powerful money driven well honed, business/insurance/republican Supreme Court campaigns in Ohio. such efforts, have been funded by major Columbus, Cleveland and other major city insurance defense industry law firms and sizable chamber of commerce groups and related municipality insurers and business interests as well as particularly strong politically sensitive interest groups like the State FOP.
The issue, in light of Massey v Caperton opens quite a gap in fact, for the states to act in good faith with the spirit of the holding; it has left to the people and interested parties of the various states and concerned citizens and affected advocates to make clear this change is to a sincere and thorough one, not controlled or cleverly concealed by either the same special interests or store bought justices and media that helped to create such major funding issues in the first instance, in our recent American experience with our Third Branch of our government.
Again, Caperton may not have been a clear as some would have liked, including this author, but it is a true, significant start and strong first step in the right direction to curb this abuse of power and influence. We, who have been engaged in this fight and realistic assessment of the state of our judiciary, for some time, and who have as lawyers, gone up against such major special interest influcences, inside this state's high and federal courts, needed just such a win; In Caperton, as slender as Kennedy's opinion maybe, we, nonetheless, clearly obtained one.
Perhaps, there just may be hope for justice in Ohio and elsewhere across this nation, just yet.
Wednesday, June 24, 2009
Saturday, July 12, 2008
The Truth About Attorney Olivito's Mental Status As Per A Real Court of Law: Seventh District Court of Appeals
Here's what a real higher duly impaneled court inside this very State of Ohio's judiciary
has concluded, once several years ago, about the supposed mental health related issues
concerning his practice and aiblity to represent individuals in this State before
the the various Court of Ohio...
Its NOT what the state ethic chief Assistant Prosecutor, a former Board of Grievance's
Chair and some redneck disciplinary counsel
from Mahoning County Bar Association's have cobbled together and have made
into a literaly smear campaign about him and his otherwise sound legal abilities
It is the opnion they want NO ONE to read and they themselve ignored, despite
being informed about the same prior to their motions and moves being made
against my interests before the Supreme Court of Ohio
"The record also reflects that the mental health evaluation would serve no purpose to the contempt that occurred here. If he submits to the evaluation, he stil must serve the sentence in jail. It is an order to submit to an evaluation, not counseling. Thus, it has no rehabilitative, restorative, or even punitive effect, as sentencing is designed to achieve.
Furthermore, there is nothing in the record of this case or evident in the court's findings demonstrating that a mental health evaluation is relevant or proper.
The record does not reflect a history or indication of mental health issues. The presentence investigation mentions nothing about mental health issues and opines that appellant is in good health. Accordingly, based on the record here, this court hereby deletes the portion of the sentence ordering appellant to submit to a mental health evaluation. "
This is NOT just any lawyer or myself talking here. This is the proper duly deliberative
opnion of one very busy and active Court of Appeals from the very county wherein the
original discipilnary actions arose. This court knows me personally and they know my work
as well. I have won a few cases before them and I have been known to several of their
judges for years.
They were independent and judicious in reaching their opinion and they did not give me a
complete pass either on this case. But on the seriously misleading conclusory allegations
that some distractors of mine wish to try to keep making a public issuse for me over,
they clearly speak to the very same issues as to why I am not taking the so called
"board ordered" mental health evaluation. Its an unamerican thing to submit to an unlawful
and baseless order and I have a strong record of both criminal and civil rights advocacy behind me to back this stance up, not to mention, a verified published court of appeals opinion
that some among this profession simply have seriously and intentionally ignored.
has concluded, once several years ago, about the supposed mental health related issues
concerning his practice and aiblity to represent individuals in this State before
the the various Court of Ohio...
Its NOT what the state ethic chief Assistant Prosecutor, a former Board of Grievance's
Chair and some redneck disciplinary counsel
from Mahoning County Bar Association's have cobbled together and have made
into a literaly smear campaign about him and his otherwise sound legal abilities
It is the opnion they want NO ONE to read and they themselve ignored, despite
being informed about the same prior to their motions and moves being made
against my interests before the Supreme Court of Ohio
"The record also reflects that the mental health evaluation would serve no purpose to the contempt that occurred here. If he submits to the evaluation, he stil must serve the sentence in jail. It is an order to submit to an evaluation, not counseling. Thus, it has no rehabilitative, restorative, or even punitive effect, as sentencing is designed to achieve.
Furthermore, there is nothing in the record of this case or evident in the court's findings demonstrating that a mental health evaluation is relevant or proper.
The record does not reflect a history or indication of mental health issues. The presentence investigation mentions nothing about mental health issues and opines that appellant is in good health. Accordingly, based on the record here, this court hereby deletes the portion of the sentence ordering appellant to submit to a mental health evaluation. "
This is NOT just any lawyer or myself talking here. This is the proper duly deliberative
opnion of one very busy and active Court of Appeals from the very county wherein the
original discipilnary actions arose. This court knows me personally and they know my work
as well. I have won a few cases before them and I have been known to several of their
judges for years.
They were independent and judicious in reaching their opinion and they did not give me a
complete pass either on this case. But on the seriously misleading conclusory allegations
that some distractors of mine wish to try to keep making a public issuse for me over,
they clearly speak to the very same issues as to why I am not taking the so called
"board ordered" mental health evaluation. Its an unamerican thing to submit to an unlawful
and baseless order and I have a strong record of both criminal and civil rights advocacy behind me to back this stance up, not to mention, a verified published court of appeals opinion
that some among this profession simply have seriously and intentionally ignored.
Thursday, October 18, 2007
Yet Another Day At Moyer's "Kalfa's Lunch Cafe"
[Editor's Note: Kalka is the last name of a eastern european writer who wrote
in the strange brave new world of eastern european soviet police state dominination and how wierd certain linguistics and legal phrases could be so well molded by those modern nation state leaders to make what was simply intollerable and completely inhuman, seem so humane and perfectly agreeable to the human mind and sensibilities...
He is often also quoted by many legal and judicial opinions for what is commonly
considered the strange paradox of having a system seemingly stand for liberty, the rights of man and the due process of law but is actually usurped, subverted and co-opted by those very leaders and 'chief officials' of the same system who understand exactly how to manipulate and just how far to go in order to appear justified in manipulating a certain legal form of positivism, moulding its veneer so as to promote a "sort of appearance of justice"....but in reality is but a shiboleth or mere form over substance of what such a system is truly masking , which underneath is a very false and merely thin-skinned but almost imperceptable
...totalitarianism.
The following little creative quasi fictional account of a given "lunch counter" conversation at 65 South Front street Colulumbus offices where the Ohio Supreme Court rests in state, would make even Kalka himself...proudly smile...we believe, who work for Supreme Lies....listen in...]
Byline: Ludite Towers Score Yet Another Victory Over A People's Attorney
Today, the Supreme Court fully entered yet another level of its own very spacious Kalfequesque cafe...when it simply denied Attorney Richard A. Olivito his pro se motion for a reasonable continuance supported directly and in very well written opinion letter authored by a professional colleque, medical doctor and lawyer friend and fellow co counsel on several key civil rights cases, who has written to Chief Justice Moyer in a six page letter something that is so direct, so clear, and so truthful yet mild and non reactionary, that even the most vocal foaming at the mouth kinds of "original intenters/manic republican" jurist...
...would have to consider taking a valium in its afterglow just to be able to better discern its well stated if not somewhat lengthy content...
Nonetheless, such objective, dispassionate, true medical professional
based opinions and related intellectual discourses are not to found into the otherwise dark and murky world of a Supreme Court Case's docket,
in Columbus.
In this cafe, no such reason and light will be allowed onto the record, controlled
as tight as a salem witch gathering in 1700's, by the Chief among us who
for some reason, has forgotten his role in the multi layered scheme of
lawyer disciplinary cases and has taken this one up close and personal...it appears...
Chief Moyers is his royal stature, as king among us lowly lawyers, is attempting
to have the non medical opinion of his well paid, but rather aged first assistant
disciplinary counsel, whose youth is withering this year, as the leaves are falling, this fall, take precedence and stand for more than that of a well known, nationally traveled and highly respected medical doctor-lawyer's opinion letter when it comes to
the debate over whether or not, richard olivito is nuts or not.
This debate "among the lunes" is taking center stage soon, at 65 South Front Street
at the old industrial troglodite ludite building that now houses the equally ferociously silly and stupid republican party's last bastion in the midwest bellweather's state as large and fertile as Tom remains, in ohio's center, for all grangers and masons and insurance insurance lobbyists who love their Noe living large mores more than life itself.
Soon, we will see the true muscular neo con Ohio movement taking and making
puddy of one its most outspoken, if not idly brilliant but "on the edge of reality" solo lawyers in all of eastern Ohio.
What is normal ? will be the issue at bar and Tommy Boy jean plans to let every lawyer know exactly what He SAYS GOES as far as what sanity's limits will forever and ever be allowed to be as a member of the Bar Association of Ohio...
Reason itself is on trial and the life of one very poor and downtrodden individual's solitary march against the tides of not just eastern's ohio's bad police officers actions but their historical contribultion to the notion that America is quite distinct and separate from its state ideals, as a nation, as it ever were...
it appears today, the Ohio Supreme Court acts as though it were the early 1800's, and not the early 2000's....
Moyers plans to say soon to Richard Olivito, "you're not a man, but only 2/3 human and therefore, in our dawrinian republican movement, you're defective, even if, my favorite gestepo clerk does not have a medical degree whatsoever...to her pedigree...{ms. brown} She's bull enough for me, and that's all that matters", say's Moyer who loves it when lessor gods try to impose their will against his major one...
"What I say goes, and this goes also as far as what human sanity is, as far as I am concerned"
And, in true Duvallian fashion, Moyer's was overheard at another disciplinary hearing...Moyer's recently caused a stir among reporter by stating to another justice at yet another solo lawyer's disciplinary counsel hearing:
"dont' you love the smell of dead lawyer brains in the mornin'"
Moyer's will set the standard in this case for the most adjectives ever used in describing a mentally ill lawyer, who has never seen a shrink much less been diagnosed by one but Moyer's clone groupies themselves...
"A real medical doctor's opinion who happens to work w/ Olivito on successful civil rights clients cases, means nothing to me....
"NO Southern white guy is going to come to Ohio and tell this grand marshal how to run this court..." Moyer was overheard telling a clerk...while reading the six page typed letter from the associate of the American College of Medicine, "Isn't this some swampy, southern sucessionist...bull...." he observed.
"Hell, moyer's adds, "they're just crazy done there in that state of Charleston South Carolina,"
This is the state where Olivito's recent strongly self expressed legal representative and willing medical advisor and fellow co-counsel on various federal civil rights cases hails from...
"What matters is what Tommy Boy Geans says about a lawyer who serves in my domain ...and no goddammed medical doctor is going to come to my house and tell me who and who isn't crazy in my neighborhood...said the Chief, just before he told his clerk of court
to not accept the good doctors six page well written letter about Olivito's legal abilities and background and his current ability to actually represent clients today and win significant legal victories inside some of the most complex, if not intense litigation occuring anywhere in the United States today.
"Hell, this cafe is closed"...Chief Moyers said, speaking in low tones about his Kalfa cafe at the basement of the ludite building where the republicans are more under pressure there than that of the U.S. soldiers and commanders are in the Green Zone.
"And what do I need with a medical doctor/lawyer's opinion letter about Mr. Olivito when I have this nice, obedient funtionary telling me, all what I want and need to hear?", he concluded.
Continuing on, about this letter which obviously upset the Colonel like figure
"And just when in Ohio 's [Supreme Court] history did we ever hold forth that the rule of law meant that we had to listen to true academics, and true professionals in their chosen fields?
To suggest the same is to say, Taft and McKinley had no right to invade all those little countries back in the glory days of the republican party of Ohio...", Moyers added.
"What the hell..." Olivito was himself heard saying...at the end of a day, inside yet
another bizarre supreme experience he's had, while visiting the basement Kalfa cafe in the big white mable institutional building that he now sees more as a modern archetecturual tribute to someone at the supreme court's ancient echoes of one major politico's egoist subconcious phalic worship than man's pursuit of justice reaching towards the heavens ...
"This place is just CrAzi" Olivito was last heard saying...quoting his favorite former SNL host's favorite line, as Moyers prepared his men in white robes [sans their hoods] to take Olivito and remove him from the Kafka cafe and ludite towers...
"...forcibly remove him to the second level basement bottom of the ludite capital building near the Scioto..." were the invisible black robed Colonel Kurtz's dictator like instructions to his minions... ..."do it NOW!" he shouts....
"And don't let him dare file that $%^& letter from that doctor he found
somewhere down there in the swamps where Sherman kicked their asses..."
Ohio's Chief legal officer added.
The question remains, what will become of the next daring little solo who dares to
tell Moyer that he ought to actually consider something resembling the truth about his
life and a real medical doctors opinions when discerning whether or not a lawyer who serves
on Moyer's plantation is truly mental or not...
"We in Ohio, like them in Texas, like big open spaces and large things...and we love our opinions to be just a large and vacant as my mind....in this way, we are unclouded in our dedication and purpose"....
the Colonel Kurtz [aka Apocalypse Now] like figure said, "just like King George is committed to winning this war in Iraq for freedom..."
With this, 'Colonel' Moyers walked off the court with his clerks holding back their laughter until they all closed the door behind him which are located directly behind the big bench where often times, inside the grand chief's "red room" where these same republican justices hold court every now and then and dolefully serve up dead lawyers carcasses for lunch... on certain days...
"Lori Brown is 'our man in the middle' and what she writes and says about any one
in this state's profession is as good as any ol' southerners opinion, medically
speaking or not....
Don't these jerks get it"? one Ohio Supreme Court dutiful anonymous source commented.
"How dare that Olivito bring some little southern medical doctor who claims to be
a lawyer too into our state court and tell us who and who isn't mentally ill!", retorted
another angry young Nazi youth like clerk. while crossing his legs....tightly.
Indeed, even the waitresses at the Kalfka basement cafe, at the ludite headquarters
were overheard, this past week, wondering out loud just how a medical doctor's opinion would be totally ignored by the grand white people's council...in Ohio's farm boy capital.
Yet, at the end of the day, they knew better, and as they filed out of the mezzanine
white ludite office tower, the skies overhead were just that much more grey and grimfaced, for all those at the center of all things,
....tonight...no one wants to speak a word out of line, since the Colonel was still fuming over his lobbyist purchased dinner...
"I just wish we could pave our streets with the dead solo lawyer's a...a...livelihoods" Moyers stated to the top management at one of Columubus major law firms...as he ordered his rare argentina bred steak...
"yes, yes, we agree, ...we too chief...we too..."
"but we at least can get rid of them one at a time and you're doing a very fine job of this..." his well healed table company retorted...with a firm back slap....
"well, thankyou guys...i don't know what i would do without your support...and we at the court appreciate all your understanding...
and all your donations....." "....its just this job does not pay enough for all that i have to put up with....you know..."
moyers, sad faced, lamented...out loud...before taking his black label drink to his lips before his watching private listeners ....
"but at least we got this pesky kid olivito down there in that part of the state that is basically hillbilly...anyways... he was beginningn to cost us plenty you know in insurance premiums you know...bad for business...." said one dutifully observant fellow corporate type...
"its just just democrats and queers occupy that area, you know..." moyers then gushed, only half heartedly holding back his laughter with a broad smile, to his now also laughing captive top heavy, dinner guests...
"o! there you go again chief,...you ought to be a comedian guy!" said...the major managing partner from a certain law firm in akron...
"I was glad to help you on that one, chief..believe me...it almost cost me more than it was worth...but i think we at least interrupted his several serious civil cases against our friends, nicely...dont you think..?"
the managing partner...propositioned the chief...
"Yes, good job...good job" said moyers..."but then added, wrly,
"you also...almost brought the house down on us... you stupido! you better learn when to hang up a phone!!"
again, hearty laughter rolls over the table as moyers grabs the bald head of this young managing corporate law firm partner and lead republican party state lawyer...and rubs it...hard...
[this is reference to the akron corporate law firm managing partner who forgot
to hang up his three way phone call, allowing his and lori brown's ex parte conversation to be recorded on Olivito's retired dad's answering machine...a conversation which was then fully denied in writing as having never occured even though it was digitally recorded and pertained to their plans on how they were going to create the mental health motion to defame olivito and prevent his timely reapplication to the practice of law...]
o-wl !!!... says the managing partner and republican insider....
"o well, you deserved that.." moyers said...w/ a confident smile...as the table simply roared...in obedient laughter...
"next time...we'll have to work more carefully to stop this kind of thing before it ever goes that far again!" roared moyers....and you may not even make it beyond your law firm's doors before i have to consider your payment in kind, moyers said half jokingly to now turning seriously ill top partner...
"you know what al did to crappy mistake makers like you..." pointing to a hanging baseball bat at the upscale restaurant's posh but sporty environment...
and with that, a toast was held to his around the table....among all....
"here here" to CJ Tom Moyers..."the best of the best ever for our cause" all the corporate counsel in attendance said with a high intoned reverence....
"yes..yes..."
in the strange brave new world of eastern european soviet police state dominination and how wierd certain linguistics and legal phrases could be so well molded by those modern nation state leaders to make what was simply intollerable and completely inhuman, seem so humane and perfectly agreeable to the human mind and sensibilities...
He is often also quoted by many legal and judicial opinions for what is commonly
considered the strange paradox of having a system seemingly stand for liberty, the rights of man and the due process of law but is actually usurped, subverted and co-opted by those very leaders and 'chief officials' of the same system who understand exactly how to manipulate and just how far to go in order to appear justified in manipulating a certain legal form of positivism, moulding its veneer so as to promote a "sort of appearance of justice"....but in reality is but a shiboleth or mere form over substance of what such a system is truly masking , which underneath is a very false and merely thin-skinned but almost imperceptable
...totalitarianism.
The following little creative quasi fictional account of a given "lunch counter" conversation at 65 South Front street Colulumbus offices where the Ohio Supreme Court rests in state, would make even Kalka himself...proudly smile...we believe, who work for Supreme Lies....listen in...]
Byline: Ludite Towers Score Yet Another Victory Over A People's Attorney
Today, the Supreme Court fully entered yet another level of its own very spacious Kalfequesque cafe...when it simply denied Attorney Richard A. Olivito his pro se motion for a reasonable continuance supported directly and in very well written opinion letter authored by a professional colleque, medical doctor and lawyer friend and fellow co counsel on several key civil rights cases, who has written to Chief Justice Moyer in a six page letter something that is so direct, so clear, and so truthful yet mild and non reactionary, that even the most vocal foaming at the mouth kinds of "original intenters/manic republican" jurist...
...would have to consider taking a valium in its afterglow just to be able to better discern its well stated if not somewhat lengthy content...
Nonetheless, such objective, dispassionate, true medical professional
based opinions and related intellectual discourses are not to found into the otherwise dark and murky world of a Supreme Court Case's docket,
in Columbus.
In this cafe, no such reason and light will be allowed onto the record, controlled
as tight as a salem witch gathering in 1700's, by the Chief among us who
for some reason, has forgotten his role in the multi layered scheme of
lawyer disciplinary cases and has taken this one up close and personal...it appears...
Chief Moyers is his royal stature, as king among us lowly lawyers, is attempting
to have the non medical opinion of his well paid, but rather aged first assistant
disciplinary counsel, whose youth is withering this year, as the leaves are falling, this fall, take precedence and stand for more than that of a well known, nationally traveled and highly respected medical doctor-lawyer's opinion letter when it comes to
the debate over whether or not, richard olivito is nuts or not.
This debate "among the lunes" is taking center stage soon, at 65 South Front Street
at the old industrial troglodite ludite building that now houses the equally ferociously silly and stupid republican party's last bastion in the midwest bellweather's state as large and fertile as Tom remains, in ohio's center, for all grangers and masons and insurance insurance lobbyists who love their Noe living large mores more than life itself.
Soon, we will see the true muscular neo con Ohio movement taking and making
puddy of one its most outspoken, if not idly brilliant but "on the edge of reality" solo lawyers in all of eastern Ohio.
What is normal ? will be the issue at bar and Tommy Boy jean plans to let every lawyer know exactly what He SAYS GOES as far as what sanity's limits will forever and ever be allowed to be as a member of the Bar Association of Ohio...
Reason itself is on trial and the life of one very poor and downtrodden individual's solitary march against the tides of not just eastern's ohio's bad police officers actions but their historical contribultion to the notion that America is quite distinct and separate from its state ideals, as a nation, as it ever were...
it appears today, the Ohio Supreme Court acts as though it were the early 1800's, and not the early 2000's....
Moyers plans to say soon to Richard Olivito, "you're not a man, but only 2/3 human and therefore, in our dawrinian republican movement, you're defective, even if, my favorite gestepo clerk does not have a medical degree whatsoever...to her pedigree...{ms. brown} She's bull enough for me, and that's all that matters", say's Moyer who loves it when lessor gods try to impose their will against his major one...
"What I say goes, and this goes also as far as what human sanity is, as far as I am concerned"
And, in true Duvallian fashion, Moyer's was overheard at another disciplinary hearing...Moyer's recently caused a stir among reporter by stating to another justice at yet another solo lawyer's disciplinary counsel hearing:
"dont' you love the smell of dead lawyer brains in the mornin'"
Moyer's will set the standard in this case for the most adjectives ever used in describing a mentally ill lawyer, who has never seen a shrink much less been diagnosed by one but Moyer's clone groupies themselves...
"A real medical doctor's opinion who happens to work w/ Olivito on successful civil rights clients cases, means nothing to me....
"NO Southern white guy is going to come to Ohio and tell this grand marshal how to run this court..." Moyer was overheard telling a clerk...while reading the six page typed letter from the associate of the American College of Medicine, "Isn't this some swampy, southern sucessionist...bull...." he observed.
"Hell, moyer's adds, "they're just crazy done there in that state of Charleston South Carolina,"
This is the state where Olivito's recent strongly self expressed legal representative and willing medical advisor and fellow co-counsel on various federal civil rights cases hails from...
"What matters is what Tommy Boy Geans says about a lawyer who serves in my domain ...and no goddammed medical doctor is going to come to my house and tell me who and who isn't crazy in my neighborhood...said the Chief, just before he told his clerk of court
to not accept the good doctors six page well written letter about Olivito's legal abilities and background and his current ability to actually represent clients today and win significant legal victories inside some of the most complex, if not intense litigation occuring anywhere in the United States today.
"Hell, this cafe is closed"...Chief Moyers said, speaking in low tones about his Kalfa cafe at the basement of the ludite building where the republicans are more under pressure there than that of the U.S. soldiers and commanders are in the Green Zone.
"And what do I need with a medical doctor/lawyer's opinion letter about Mr. Olivito when I have this nice, obedient funtionary telling me, all what I want and need to hear?", he concluded.
Continuing on, about this letter which obviously upset the Colonel like figure
"And just when in Ohio 's [Supreme Court] history did we ever hold forth that the rule of law meant that we had to listen to true academics, and true professionals in their chosen fields?
To suggest the same is to say, Taft and McKinley had no right to invade all those little countries back in the glory days of the republican party of Ohio...", Moyers added.
"What the hell..." Olivito was himself heard saying...at the end of a day, inside yet
another bizarre supreme experience he's had, while visiting the basement Kalfa cafe in the big white mable institutional building that he now sees more as a modern archetecturual tribute to someone at the supreme court's ancient echoes of one major politico's egoist subconcious phalic worship than man's pursuit of justice reaching towards the heavens ...
"This place is just CrAzi" Olivito was last heard saying...quoting his favorite former SNL host's favorite line, as Moyers prepared his men in white robes [sans their hoods] to take Olivito and remove him from the Kafka cafe and ludite towers...
"...forcibly remove him to the second level basement bottom of the ludite capital building near the Scioto..." were the invisible black robed Colonel Kurtz's dictator like instructions to his minions... ..."do it NOW!" he shouts....
"And don't let him dare file that $%^& letter from that doctor he found
somewhere down there in the swamps where Sherman kicked their asses..."
Ohio's Chief legal officer added.
The question remains, what will become of the next daring little solo who dares to
tell Moyer that he ought to actually consider something resembling the truth about his
life and a real medical doctors opinions when discerning whether or not a lawyer who serves
on Moyer's plantation is truly mental or not...
"We in Ohio, like them in Texas, like big open spaces and large things...and we love our opinions to be just a large and vacant as my mind....in this way, we are unclouded in our dedication and purpose"....
the Colonel Kurtz [aka Apocalypse Now] like figure said, "just like King George is committed to winning this war in Iraq for freedom..."
With this, 'Colonel' Moyers walked off the court with his clerks holding back their laughter until they all closed the door behind him which are located directly behind the big bench where often times, inside the grand chief's "red room" where these same republican justices hold court every now and then and dolefully serve up dead lawyers carcasses for lunch... on certain days...
"Lori Brown is 'our man in the middle' and what she writes and says about any one
in this state's profession is as good as any ol' southerners opinion, medically
speaking or not....
Don't these jerks get it"? one Ohio Supreme Court dutiful anonymous source commented.
"How dare that Olivito bring some little southern medical doctor who claims to be
a lawyer too into our state court and tell us who and who isn't mentally ill!", retorted
another angry young Nazi youth like clerk. while crossing his legs....tightly.
Indeed, even the waitresses at the Kalfka basement cafe, at the ludite headquarters
were overheard, this past week, wondering out loud just how a medical doctor's opinion would be totally ignored by the grand white people's council...in Ohio's farm boy capital.
Yet, at the end of the day, they knew better, and as they filed out of the mezzanine
white ludite office tower, the skies overhead were just that much more grey and grimfaced, for all those at the center of all things,
....tonight...no one wants to speak a word out of line, since the Colonel was still fuming over his lobbyist purchased dinner...
"I just wish we could pave our streets with the dead solo lawyer's a...a...livelihoods" Moyers stated to the top management at one of Columubus major law firms...as he ordered his rare argentina bred steak...
"yes, yes, we agree, ...we too chief...we too..."
"but we at least can get rid of them one at a time and you're doing a very fine job of this..." his well healed table company retorted...with a firm back slap....
"well, thankyou guys...i don't know what i would do without your support...and we at the court appreciate all your understanding...
and all your donations....." "....its just this job does not pay enough for all that i have to put up with....you know..."
moyers, sad faced, lamented...out loud...before taking his black label drink to his lips before his watching private listeners ....
"but at least we got this pesky kid olivito down there in that part of the state that is basically hillbilly...anyways... he was beginningn to cost us plenty you know in insurance premiums you know...bad for business...." said one dutifully observant fellow corporate type...
"its just just democrats and queers occupy that area, you know..." moyers then gushed, only half heartedly holding back his laughter with a broad smile, to his now also laughing captive top heavy, dinner guests...
"o! there you go again chief,...you ought to be a comedian guy!" said...the major managing partner from a certain law firm in akron...
"I was glad to help you on that one, chief..believe me...it almost cost me more than it was worth...but i think we at least interrupted his several serious civil cases against our friends, nicely...dont you think..?"
the managing partner...propositioned the chief...
"Yes, good job...good job" said moyers..."but then added, wrly,
"you also...almost brought the house down on us... you stupido! you better learn when to hang up a phone!!"
again, hearty laughter rolls over the table as moyers grabs the bald head of this young managing corporate law firm partner and lead republican party state lawyer...and rubs it...hard...
[this is reference to the akron corporate law firm managing partner who forgot
to hang up his three way phone call, allowing his and lori brown's ex parte conversation to be recorded on Olivito's retired dad's answering machine...a conversation which was then fully denied in writing as having never occured even though it was digitally recorded and pertained to their plans on how they were going to create the mental health motion to defame olivito and prevent his timely reapplication to the practice of law...]
o-wl !!!... says the managing partner and republican insider....
"o well, you deserved that.." moyers said...w/ a confident smile...as the table simply roared...in obedient laughter...
"next time...we'll have to work more carefully to stop this kind of thing before it ever goes that far again!" roared moyers....and you may not even make it beyond your law firm's doors before i have to consider your payment in kind, moyers said half jokingly to now turning seriously ill top partner...
"you know what al did to crappy mistake makers like you..." pointing to a hanging baseball bat at the upscale restaurant's posh but sporty environment...
and with that, a toast was held to his around the table....among all....
"here here" to CJ Tom Moyers..."the best of the best ever for our cause" all the corporate counsel in attendance said with a high intoned reverence....
"yes..yes..."
Monday, October 1, 2007
New Sixth Circuit Opinion Supports Olivito's Work on Underlying Case: Functional Ability of Olivito in Question? by Whom and Why?
Recently, the Sixth Circuit Court of Appeals upheld a lower district court ruling and opinion
which clearly favored the strong pleading, discovery and briefing that Attorney Olivito was
able to produce inside a very disturbing but real Section 1983 claim which clearly demonstrated
that the plaintiffs, a white working class family from Steubenville Ohio were entitled to
overcome the qualified immunity challenges of the local Steubenville officers when they jumped
a privacy fence, then pursued a son of the father and owner of the residence, then allegedly
struck him on the side of his temple with a mag lite flashlight three times and then once inside
the same residence, arrested the minor for underage drinking contra what they pursued him
for allegedly. The underage drinking charged had been dismissesd by the local municipal
court three years ago.
In the recently decided Thorne v. City of Steubenville Police Officers, the Sixth Circuit
strongly rejected the subsequent thirty five page appellate brief the City's insurer's defense
firm had filed stating that the lower district court got it wrong. What the Sixth held was the
case's issues of officer liability under Fourth Amendment standards were so clear and so well
delineated by the lower court after their own "extensive and careful review and a separate oral
argument" that the lower court opinion granting Attorney Olivito's original briefing a clear legal
victory on the initial summary judgment officer liability issues was sufficient to stand for their
own affirmance of the lower court on all of the most relevant claims including the improper
search and warrantless entry into a private residence's backyard, the subsequent false arrest
and the excessive force claim, which was not challenged on appeal by the city lawyers.
This legal opinion from the high appellate court in Cincinnati, represents a sweet and
particularly strong victory for the original counsel on the case's record, Mr. Olivito, who filed
the original pleadings, did all of the discovery work as lead and solo counsel on the case and then
also wrote, alone, the main summary judgment plaintiff responsive briefs on this case last year
which proved to be both very effective and sufficiently strong to overcome the serious
qualified immunity defenses that all police officers can raise and were stated and briefed by the
large insurance defense firm out of Columbus and Cleveland, Mazanec, Raskin & Ryder who
represented the City, the officers and the FOP locally for the City officers.
The opinion result is also clearly based on the hard and diligent work of Dan Thorne Sr
himself, who put much of the case's key documents together for Mr. Olivito even before he had
hired a lawyer to do the same.
Judge Marbley included as lead counsel inside his published opinion, Mr. Richard Olivito's
name as first counsel on that case's district court opinion. While noting the district court made
a technical error on applying to the officers both sets of officer immunity claims and reversing
that in part, the appellate court clearly upheld the district court's well written primer opinion on
Fourth Amendment standards, strongly vindicating both the lower district court and the
plaintiff's arguments and pleadings inside the original case filed in January of 2005.
********************************************************************************
What does this mean for the career of Attorney Richard Olivito? Only the future knows
but one thing is clear: The Supreme Court's office of disciplinary counsel chief prosecutor
Lori Brown had filed a motion in late February and then a supportive brief last March, [2007]
stating that due to certain issues in Mr. Olivito's personal life, he was "no longer capable of
functioning as a competent attorney"...
"What a deeply misguided, slanderous and serious allegation to lay at any lawyer's feet,
much less have it done by the State Supreme Court of Ohio's enforcement arm and mechanism
by its very own ethics office. I think Ms. Brown has opened herself up to a false light complaint."
What is going to be the standard applied now by the Ohio Supreme Court, who seems to
be wasting no time to somehow respond officially to this Sixth Circuit victory given the plaintiff's
original lawyer Richard Olivito who created the case, its pleadings and wholly prosecuted and
as solo lead counsel developed the record of the same to date, all just before the Ohio Supreme
Court suspended his license last summer for a year?
The outcome and the truth is yet to be seen. God literally only knows what is to come
of this unique battle and legal circmstance between Mr. Olivito and his distractors. No doubt,
Attorney Olivito has made powerful enemies among certain high political circles and some local
bar associations in this state. There are some among these who are very quick-to-
the-draw-enemies of Mr. Olivito's and his law practice who have devoted more than a passing
interest in Mr. Olivito and have spent much more than mere 'face time' with his distractors and
not a few mere dollars in investigating him, by those appointed to kill off his practice, working
for this present Supreme Court and some related special interests in this state.
These same individuals seem to love to chat with some of the more powerful political office
holders of inside this state's judiciary about the law practice of Richard Olivito in terms of his
standing within the legal system and profession of Ohio. They love to create falsehoods about
his representation of lowly clients. The are like those we have read in sunday school lessons
who in the ancient times as the Old Testament described them: "they are those who call evil
good, and good, evil...".
Whatever the outcome and the recent effort to make Olivito submit to the bizarre
request they have made regarding him submitting to a mental health evaulation sought by
by this very sick and compromised chief disciplinary counsel lawyer Ms. Brown of the
Ohio Discipilnary Counsel's office and then, dutifully 'ordered', by the seriously
compromised Akron corporate law firm and State Republican party lead lawyer, Jeff Heintz,
one thing is very clear:
The Sixth Circuit conservative judges, some from Ohio, some not, not only believed in what
the Thorne- Olivito claim had plead and developed thru hard won efforts, inside his legitimate
federal 1983 lawsuit filed on behalf of very seriously injured clients but they completely believed
strongly about what they reviewed, heard and then decided about the case, so much so they
completely affirmed the extremely favorable lower court decision regarding officer liability
in this case and let stand the district court's published opinion which was clearly endorsed
and strongly affirmed most of the work product of the plaintiff's original pre summary judgment
part of the case, over and against that of the large insurance defense firm of downtown
Columbus' lawyers who strongly opposed and challenged the plaintiff's solo counsel for the
first two years on this case every step of the way but have now come away major losers in
these all important first several rounds of such intense and complex federal litigation.
"I have to wonder, whether or not, Ohio Disciplinary Counsel Ms. Lori Brown, or David
Comstock of Youngstown and/or even the former panel chair on my present pending but
stayed disciplinary case, ever have had the opportunity to litigate such issues all the way
through the highest federal appellate courts and yet win within such complex federal litigation
with the kind of well- funded, deep pocket opposition that we have had to face in terms of
this particular kind of Thorne case.
I have, very fortunately and for a lot of reasons, which relate to the careful choosing of the
claims I take and the underlying strength of the client's case and by God's grace, literally, and
now we have overcome. If any such counsel [have ever done this type of litigation] then they
ought to know for certain, I am quite capable of functioning fully as a lawyer for anyone who
wants to chance me with their federal civil rights claim based on Fourth and Fourteenth
Amendment violations.
If not, then they need to sit back, take a breath and just truly ponder what they are foolishly
stating about a fellow lawyer who has run circles around several major defense firms, both in
Cleveland and now in Columbus, by himself, on a shoe string budget armed only with the truth,
the records of his client's cases and his own astute experience and knowledge of a very rarified
and often not truly utilized by average lawyers, field of federal litigation, reserved for only
those who would dare to take on their local cities and municipalities and their local police chief's
and.......win...the most important legal arguments pertinent to such heavy litigation....at the
highest possible courts in the entire midwest region we're operating within."
"This result ought to stand for something in light of all that has been alleged against me by
these out of control and truly biased 'ethics' lawyers who along with this present all republican
FOP endorsed Supreme Court of Ohio which seems more bent on harming my reputation and
the cause of my innocent clients than they are protecting the public and/or promoting the truth
about my actual abilities as a winning advocate -lawyer on behalf of my various serious civil
rights clients, along with their very serious federal constitutional claims."
which clearly favored the strong pleading, discovery and briefing that Attorney Olivito was
able to produce inside a very disturbing but real Section 1983 claim which clearly demonstrated
that the plaintiffs, a white working class family from Steubenville Ohio were entitled to
overcome the qualified immunity challenges of the local Steubenville officers when they jumped
a privacy fence, then pursued a son of the father and owner of the residence, then allegedly
struck him on the side of his temple with a mag lite flashlight three times and then once inside
the same residence, arrested the minor for underage drinking contra what they pursued him
for allegedly. The underage drinking charged had been dismissesd by the local municipal
court three years ago.
In the recently decided Thorne v. City of Steubenville Police Officers, the Sixth Circuit
strongly rejected the subsequent thirty five page appellate brief the City's insurer's defense
firm had filed stating that the lower district court got it wrong. What the Sixth held was the
case's issues of officer liability under Fourth Amendment standards were so clear and so well
delineated by the lower court after their own "extensive and careful review and a separate oral
argument" that the lower court opinion granting Attorney Olivito's original briefing a clear legal
victory on the initial summary judgment officer liability issues was sufficient to stand for their
own affirmance of the lower court on all of the most relevant claims including the improper
search and warrantless entry into a private residence's backyard, the subsequent false arrest
and the excessive force claim, which was not challenged on appeal by the city lawyers.
This legal opinion from the high appellate court in Cincinnati, represents a sweet and
particularly strong victory for the original counsel on the case's record, Mr. Olivito, who filed
the original pleadings, did all of the discovery work as lead and solo counsel on the case and then
also wrote, alone, the main summary judgment plaintiff responsive briefs on this case last year
which proved to be both very effective and sufficiently strong to overcome the serious
qualified immunity defenses that all police officers can raise and were stated and briefed by the
large insurance defense firm out of Columbus and Cleveland, Mazanec, Raskin & Ryder who
represented the City, the officers and the FOP locally for the City officers.
The opinion result is also clearly based on the hard and diligent work of Dan Thorne Sr
himself, who put much of the case's key documents together for Mr. Olivito even before he had
hired a lawyer to do the same.
Judge Marbley included as lead counsel inside his published opinion, Mr. Richard Olivito's
name as first counsel on that case's district court opinion. While noting the district court made
a technical error on applying to the officers both sets of officer immunity claims and reversing
that in part, the appellate court clearly upheld the district court's well written primer opinion on
Fourth Amendment standards, strongly vindicating both the lower district court and the
plaintiff's arguments and pleadings inside the original case filed in January of 2005.
********************************************************************************
What does this mean for the career of Attorney Richard Olivito? Only the future knows
but one thing is clear: The Supreme Court's office of disciplinary counsel chief prosecutor
Lori Brown had filed a motion in late February and then a supportive brief last March, [2007]
stating that due to certain issues in Mr. Olivito's personal life, he was "no longer capable of
functioning as a competent attorney"...
"What a deeply misguided, slanderous and serious allegation to lay at any lawyer's feet,
much less have it done by the State Supreme Court of Ohio's enforcement arm and mechanism
by its very own ethics office. I think Ms. Brown has opened herself up to a false light complaint."
What is going to be the standard applied now by the Ohio Supreme Court, who seems to
be wasting no time to somehow respond officially to this Sixth Circuit victory given the plaintiff's
original lawyer Richard Olivito who created the case, its pleadings and wholly prosecuted and
as solo lead counsel developed the record of the same to date, all just before the Ohio Supreme
Court suspended his license last summer for a year?
The outcome and the truth is yet to be seen. God literally only knows what is to come
of this unique battle and legal circmstance between Mr. Olivito and his distractors. No doubt,
Attorney Olivito has made powerful enemies among certain high political circles and some local
bar associations in this state. There are some among these who are very quick-to-
the-draw-enemies of Mr. Olivito's and his law practice who have devoted more than a passing
interest in Mr. Olivito and have spent much more than mere 'face time' with his distractors and
not a few mere dollars in investigating him, by those appointed to kill off his practice, working
for this present Supreme Court and some related special interests in this state.
These same individuals seem to love to chat with some of the more powerful political office
holders of inside this state's judiciary about the law practice of Richard Olivito in terms of his
standing within the legal system and profession of Ohio. They love to create falsehoods about
his representation of lowly clients. The are like those we have read in sunday school lessons
who in the ancient times as the Old Testament described them: "they are those who call evil
good, and good, evil...".
Whatever the outcome and the recent effort to make Olivito submit to the bizarre
request they have made regarding him submitting to a mental health evaulation sought by
by this very sick and compromised chief disciplinary counsel lawyer Ms. Brown of the
Ohio Discipilnary Counsel's office and then, dutifully 'ordered', by the seriously
compromised Akron corporate law firm and State Republican party lead lawyer, Jeff Heintz,
one thing is very clear:
The Sixth Circuit conservative judges, some from Ohio, some not, not only believed in what
the Thorne- Olivito claim had plead and developed thru hard won efforts, inside his legitimate
federal 1983 lawsuit filed on behalf of very seriously injured clients but they completely believed
strongly about what they reviewed, heard and then decided about the case, so much so they
completely affirmed the extremely favorable lower court decision regarding officer liability
in this case and let stand the district court's published opinion which was clearly endorsed
and strongly affirmed most of the work product of the plaintiff's original pre summary judgment
part of the case, over and against that of the large insurance defense firm of downtown
Columbus' lawyers who strongly opposed and challenged the plaintiff's solo counsel for the
first two years on this case every step of the way but have now come away major losers in
these all important first several rounds of such intense and complex federal litigation.
"I have to wonder, whether or not, Ohio Disciplinary Counsel Ms. Lori Brown, or David
Comstock of Youngstown and/or even the former panel chair on my present pending but
stayed disciplinary case, ever have had the opportunity to litigate such issues all the way
through the highest federal appellate courts and yet win within such complex federal litigation
with the kind of well- funded, deep pocket opposition that we have had to face in terms of
this particular kind of Thorne case.
I have, very fortunately and for a lot of reasons, which relate to the careful choosing of the
claims I take and the underlying strength of the client's case and by God's grace, literally, and
now we have overcome. If any such counsel [have ever done this type of litigation] then they
ought to know for certain, I am quite capable of functioning fully as a lawyer for anyone who
wants to chance me with their federal civil rights claim based on Fourth and Fourteenth
Amendment violations.
If not, then they need to sit back, take a breath and just truly ponder what they are foolishly
stating about a fellow lawyer who has run circles around several major defense firms, both in
Cleveland and now in Columbus, by himself, on a shoe string budget armed only with the truth,
the records of his client's cases and his own astute experience and knowledge of a very rarified
and often not truly utilized by average lawyers, field of federal litigation, reserved for only
those who would dare to take on their local cities and municipalities and their local police chief's
and.......win...the most important legal arguments pertinent to such heavy litigation....at the
highest possible courts in the entire midwest region we're operating within."
"This result ought to stand for something in light of all that has been alleged against me by
these out of control and truly biased 'ethics' lawyers who along with this present all republican
FOP endorsed Supreme Court of Ohio which seems more bent on harming my reputation and
the cause of my innocent clients than they are protecting the public and/or promoting the truth
about my actual abilities as a winning advocate -lawyer on behalf of my various serious civil
rights clients, along with their very serious federal constitutional claims."
Friday, September 14, 2007
The Variance of Proof Issues Inside Olivito's Selling Brief at the Southern District Last Fall: Part I
When asked to show cause last fall as to why his southern district of Ohio federal law license ought not be suspended in the same manner that the Ohio State Supreme Court did last summer, [a one year actual suspension and one additional year by conditional status w/ approval] Olivito argued several critical elements and theories based on clearly established long standing federal precedent as to why his federal license ought not to be suspended in the exact same 'reciprical' manner as it was in the State court system.
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'.
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]
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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