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Disciplinary Counsel v. Burge

Supreme Court of Ohio

August 13, 2019

Disciplinary Counsel
v.
Burge.

          Submitted March 27, 2019

          On Certified Report by the Board of Professional Conduct, No. 2016-044.

          Scott J. Drexel, Disciplinary Counsel, Joseph M. Caligiuri, Chief Assistant Disciplinary Counsel, and Jennifer A. Bondurant, Assistant Disciplinary Counsel, for relator.

          Montgomery, Rennie & Jonson, George D. Jonson, and Lisa M. Zaring, for respondent.

          PER CURIAM.

         {¶ 1} Respondent, James Michael Burge, of Lorain, Ohio, Attorney Registration No. 0004659, was admitted to the practice of law in Ohio in 1975. Burge served as a Lorain County Common Pleas Court judge from 2007 until he resigned on April 14, 2015 after a jury found him guilty on three counts of tampering with records and three counts of falsification.

         {¶ 2} On April 15, 2015, we suspended Burge's license to practice law on an interim basis based on the felony counts of tampering with records. In re Burge, 142 Ohio St.3d 1235, 2015-Ohio-1427, 30 N.E.3d 957. On August 10, 2015, we reinstated Burge after being notified that the tampering charges had been reduced to misdemeanors due to an error in the jury-verdict forms. In re Burge, 143 Ohio St.3d 1283, 2015-Ohio-3169, 40 N.E.3d 1144.

         {¶ 3} In September 2018, relator, disciplinary counsel, filed an amended complaint against Burge charging him with multiple violations of the Code of Judicial Conduct and the Rules of Professional Conduct. The parties submitted stipulations of fact, misconduct, and aggravating and mitigating factors. The matter proceeded to a hearing before a three-member panel of the Board of Professional Conduct. The panel adopted the parties' stipulations, found that the evidence established that Burge had engaged in the charged misconduct, and recommended a one-year suspension with six months stayed. The board adopted the panel's findings of fact, conclusions of law, and recommended sanction. Burge objects to the board's report and recommendation, but only to the extent that the board did not give him credit for time served under his previous interim felony suspension.

         {¶ 4} Upon our review of the record, we accept the board's findings of misconduct and agree that a one-year suspension with six months stayed is the appropriate sanction. We also order that Burge be credited with the time he served under his interim felony suspension.

         I. Misconduct

         A. Count One - Criminal Convictions

         {¶ 5} Burge's criminal convictions stem from his failure to accurately report on his annual financial-disclosure statements-which he was required to file as an elected official-his interest in Whiteacre North, L.L.C. ("Whiteacre"). Burge and his wife owned a 50 percent share in Whiteacre, whose sole asset was an office building located at 600 North Broadway in Lorain, Ohio.

         {¶ 6} In September 1998, Whiteacre secured a $365,000 mortgage from Lorain National Bank and the Whiteacre shareholders, including Burge, signed as joint and several personal guarantors on the loan.

         {¶ 7} Burge started his first term on the Lorain County Common Pleas Court in January 2007. That month, the Whiteacre shareholders assigned their full interests in Whiteacre to Shimane and Azurree Smith. The Smiths agreed to pay $70,000 to the shareholders and assumed the debt owed to Lorain National Bank on the property. Whiteacre's mortgage, however, expressly prohibited such an assignment. Moreover, none of the Whiteacre shareholders notified the bank of the assignment or recorded the assignment. And Burge remained a personal guarantor on the bank loan.

         {¶ 8} Burge filed his financial-disclosure form for the 2010 calendar year on January 27, 2011. Burge, however, did not list Lorain National Bank as a creditor, Whiteacre as a business that he or his wife operated, or his ownership interest in the building at 600 North Broadway.

         {¶ 9} In February 2011, the Smiths defaulted on the agreement, and ownership of Whiteacre reverted back to Burge and the other former Whiteacre shareholders.

         {¶ 10} In June 2011, Burge transferred his ownership interest in Whiteacre to his wife for $1.00 without giving notice to Lorain National Bank. Burge also remained a personal guarantor on the bank loan.

         {¶ 11} Burge submitted his 2011 financial-disclosure form on January 26, 2012, and his 2012 form on February 13, 2013. On both forms, Burge failed to list Whiteacre as a business that he or his wife operated or his ownership interest in the building at 600 North Broadway.

         {¶ 12} In September 2014, the Lorain County Grand Jury indicted Burge on 12 counts of criminal conduct, ranging from felony offenses of tampering with records and having an unlawful interest in a public contract to misdemeanor offenses of falsification and soliciting improper compensation. In April 2015, a jury found Burge guilty on three counts of tampering with records and three counts of falsification. A visiting judge dismissed the remaining charges.

         {¶ 13} After the guilty verdicts but before sentencing, Burge resigned from the common pleas court. During sentencing on May 14, 2015, the judge granted Burge's motion to reduce the three felony charges to misdemeanors because the verdict forms failed to specify the appropriate offense level for the tampering charges. As a result, Burge was sentenced on six misdemeanor offenses and the judge imposed fines totaling $3,000. The court of appeals affirmed Burge's convictions on direct appeal. State v. Burge, 9th Dist. Lorain No. 16A010936, 2017-Ohio-5836.

         {¶ 14} Based on Burge's convictions, the parties stipulated and the board found that Burge violated Jud.Cond.R. 1.2 (requiring a judge to act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary and to avoid impropriety and the appearance of impropriety) and Prof.Cond.R. 8.4(b) (prohibiting a lawyer from committing an illegal act that adversely reflects on the lawyer's honesty or trustworthiness).

         B. Count Two - Failure to Disclose Relationships with Tenant-Lawyers

         {¶ 15} Between February 2011 and June 2011, while Burge held an ownership interest in Whiteacre, several tenants of 600 North Broadway regularly appeared before Burge as counsel in the Lorain County Common Pleas Court. During this same time period, Burge appointed five of those attorneys to represent indigent defendants in cases pending before him. In addition, Burge approved court-appointed fees to two lawyers who were Whiteacre tenants. Yet Burge did not recuse himself from any of those cases or disclose those relationships to the prosecutors assigned to those cases.

         {¶ 16} Against this backdrop, the parties stipulated and the board found that Burge violated Jud.Cond.R. 1.2 and 3.11(C)(3) (prohibiting a judge from engaging in otherwise permitted financial activities if they involve the judge in frequent transactions or continuing business relationships with lawyers or other persons likely to come before the judge's court).

         C Count Three - Rude and Discourteous Behavior

         1. The Slaby Letter

         {¶ 17} While serving as a judge in July 2011, Burge wrote a letter on official court stationary to three state representatives regarding his views on certain proposed legislation. Lynn Slaby, a former judge on the Ninth District Court of Appeals and, at that time, a state representative, had sponsored a bill that would have required a prosecutor to consent to a defendant's request to be tried before a judge, rather than a jury. In his letter, Burge characterized Slaby and his proposed legislation as "nothing more than the hobgoblin of a small-minded, mouth-breathing, Tea Party type whose political style and abilities uniquely qualify him to do nothing." Among other insults hurled at Slaby, Burge's letter also stated that "[u]ntil recently, the Ninth District Court of Appeals * * * was nothing more than an affirmative action program for intellectually challenged, Summit County Republican lawyers. That's how Lynn got elected."

         2. Derogatory ...


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