Family Law II... FEDERAL PREEMPTION OF OHIO STATE LAW: THE ORDER BASED UPON ATTORNEY’S JOHN LAWSON’S AND STEVEN WOLKEN’S MOTION TO INTERVENE IN THE CUYAHOGA COUNTY JUVENILE COURT FILED THE SAME DAY AND SERVED 5- MINUTES BEFORE HEARING ALLOWING THE FOSTER CARE PROVIDER TO PARTICIPATE IN THE LOWER COURT PROCEEDINGS IS VOID AB INITIO AND SUBJECT COLLATERAL ATTACK BAD FAITH AND UNCLEAN HANDS DOCTRINES PRECLUDES MARGARET CONRAD-WALSH AND REV. JAMES P. O'DONNELL THROUGH CONDUIT AND IN CONCERT TACTICS FROM INTERVENING THROUGH ATTORNEY JOHN LAWSON AND STEVEN WOLKEN ATTORNEY'S CONDUCT IS IMPUTED TO THEIR CLIENTS AND IT CAN BE WELL ARGUED ACTIONS ATTRIBUTED TOO THE STATE ITSELF UNDER BOTH WELL-SETTLED OHIO STATE AND U.S. FEDERAL LAWS "The law is well-settled that a void order or judgement is void even before reversal." Vallely v. Northern Fire & Marine Ins. Co., 254 U.S. 348, 41 S. Ct. 116 (1920). Under the Supremacy Clause of the United States Constitution, state laws or actions violating federal law are invalid. U.S. Const. art. VI, cl.2. See Shaw v. Delta Air Lines, 463 U.S. 85, 96 n.14 (1983). “In Renfro v. Cuyahoga Cty. Dept. of Human Serv.”, “the Sixth Circuit stated: “Under Ohio law, *** [f]oster parents have no mechanism to challenge the removal of a foster child from their care; they have no statutory right to a hearing either before of after the child has been removed; nor are they entitled to a written explanation for the agency’s action or an appeal. The temporary nature of the foster care relationship provides sufficient notice to all participants that their rights are limited.” The court in Renfro recognized the “strong emotional bond that might evolve in a foster care situation,” but declined to characterize the relationship as a constitutionally protected liberty interest. Instead, the court described the relationship as “a temporary arrangement created by state and contractual agreements.” “In effect, foster parents care for a child as agents of the children services board, which is the child’s legal custodian.” “Accordingly, foster parents have no constitutionally protected liberty interest in a foster care situation. Therefore, foster parents have no constitutional right to pursue actions involving their foster child(ren) in Ohio’s courts. However, we must view this in light of the United States Supreme Court’s discussion of the foster care relationship in Smith v. Organization of Foster Families for Equality & Reform (“OFFER”), (1977), 431 U.S. 816. In OFFER, the court suggested, in dictum, that long-term foster parents may be entitled to some due process protection in view of the mutual care and support developed in these relationships. However, OFFER acknowledged the “virtually unavoidable” tension between the rights of biological parents and those of foster parents.” “The court also stated that “whatever emotional ties may develop between foster parent and foster child,” the relationship has its origins, in state law and contractual arrangements which define expectations and entitlements.” “Although participation may be warranted in some cases, **when the issue is deprivation of parental rights,** **the foster parents’ interest in preventing the return of the child to the parent** **in order to further their own desire** for adoption** is too predictable** to justify the addition of the foster parents as parties.”**Id. In re McDaniel, Case Nos. 2002-L-158 and 2002-L-159, supra at ¶36-41 citing Renfro v. Cuyahoga Cty. Dept. of Human Serv. U.S. 6th Circuit Court of Appeals (C.A.6, 1989), 884 F.2d 943, 944; See In re Martin, (Aug. 27, 1999), 2d Dist. Nos. 17432, 17461, and 17464, 1999 Ohio App. LEXIS 3999, at 6; Smith v. Organization of Foster Families for Equality & Reform (“OFFER”), (1977), 431 U.S. 816, 845-846. "Since attorneys are officers of the court, their conduct, if dishonest, would constitute fraud on the court." H.K. Porter Co., Inc. v. Goodyear Tire & Rubber Co., 536 F.2d 1115, 1119 (6th Cir.1976). "Officers of the court include***: ***lawyers***, ***judges***, referees, and those appointed; guardian ad litem, parenting time expeditors, mediators, rule 114 neutrals, evaluators, administrators, special appointees, ****and any others**** whose influence**** ****are part of the judicial mechanism.*****” “Like the Hydra slain by Hercules, prosecutorial misconduct has many heads.” United States v. Williams, 504 U.S. 36, 60 (1992) (Stevens, J., dissenting). “As the” U.S. “Supreme Court explained in Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc. , “one becomes a party officially, and is required to take action in that capacity, only upon service of a summons or other authority-asserting measure stating the time within which the party served must appear and defend.” The filing of the complaint commences the action, and absent a waiver of service, “the summons * * * function[s] as the sine qua non directing an individual or entity to participate in a civil action or forgo procedural or substantive rights.”” “trial court is without jurisdiction to render judgment against person who was not served summons, did not appear, and was not made a party to the proceedings”; “one is not “subject to any court’s authority” before service of a summons”; “Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied”; “The party to be added must be properly brought before the court or no judgment can be entered or enforced. The requirements of due process must be met”; “Without service of process, the court in fact has no jurisdiction over the purportedly joined party.” “Shumaker” “is not a party to the action” “and the trial court patently and unambiguously lacks jurisdiction to compel him to defend it.” State ex rel. Shumaker v. Nichols, 137 Ohio St.3d 391, 2013-Ohio-4732 at ¶ 38, 40 citing Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc. , 526 U.S. 344, 350-351, 119 S.Ct. 1322, 143 L.Ed.2d 448 (1999); State ex rel. Doe, 132 Ohio St.3d 365, 2012-Ohio-2686, 972 N.E.2d 553, at ¶ 13; Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc. , 526 U.S. 344, 356, 119 S.Ct. 1322, 143 L.Ed.2d 448 (1999); Omni Capital Internatl., Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104, 108 S.Ct. 404, 98 L.Ed.2d 415 (1987); Sarne v. Fiesta Motel, 79 F.R.D. 567, 570 (E.D.Pa.1978); Pope v. Intermountain Gas Co., 103 Idaho 217, 222, 646 P.2d 988 (1982), fn. 7. To not so hold, is to “subvert” and “injuriously restrain the right itself." Yick Wo v. Hopkins, 118 U.S. 356, 371 (1886). Prior to the U.S. Supreme Court's holding in 2004, in Crawford v. Washington, 541 U.S. 36 (2004), wherein the U.S. Supreme articulated as if needed repeating "the confrontation clause" of "the 6th Amendment of the U.S. Constitution" the U.S. Supreme Court, in 1975, some 29 years earlier, clearly articulated and recognized that the adversary system has been "constitutionalized in the Sixth and Fourteenth Amendments." Herring v. New York, 422 U.S. 853, 857 (1975). “the equal protection of the laws is a pledge of the protection of EQUAL LAWS." "[**all persons**] within the jurisdiction of the United States [**shall have the same right in every State and Territory to**] make and enforce contracts, to sue, be parties, [**give evidence**], [**and to the full and equal benefit of all laws**] and proceedings [**for the security of persons**] and property [**AS IS ENJOYED BY" ALL "CITIZENS**] [**and shall be subject to**] like punishment, pains, penalties, taxes, licenses, and exactions of every kind, **AND TO NO OTHER."** Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886) at paragraph one of the Syllabus of the Court. The Due Process of Law Guarantee Under the U.S. Constitution and the Due Course of Law Guarantee Under Ohio Constitution State v. Hochhausler (1996), 76 Ohio St. 3d 455, 459 -- "Due process under the Ohio and United States Constitutions demands that the right to notice and an opportunity to be heard must be granted at a meaningful time and in a meaningful manner where the state seeks to infringe a protected liberty or property interest...However, the concept of due process is flexible and varies depending on the importance attached to the interest and the peculiar circumstances under which the deprivation may occur." This weighing process is undertaken in accordance with the factors listed in Matthews v. Eldridge (1976), 424 U.S. 319, at 335. State, ex rel. Heller, v. Miller (1980), 61 Ohio St. 2d 6, 8 -- "...The Ohio Constitution's guarantees in these matters are substantially equivalent to the United States Constitution's guarantees...Section 16 of Article I guarantees that...every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law..." When read in conjunction with Sections 1, 2, and 19, Section 16 is the equivalent of the Fourteenth Amendment's due process clause. Direct Plumbing Supply Co. v. Dayton (1941), 138 Ohio St. 540; Akron v. Chapman (1953), 160 Ohio St. 382. As a consequence, decisions of the United States Supreme Court can be used to give meaning to the guarantees of Article I of the Ohio Constitution." Also see Peebles v. Clement (1980), 63 Ohio St. 2d 314, 317. “Failure of proper service is not a minor, hyper technical violation of the rules. Such failure is in direct contravention of the Rules of Civil Procedure.” Cleveland v. Ohio Civil Rights Comm., 43 Ohio App.3d 153, 157, 540 N.E.2d 278 (8th Dist.1989). Absent proper service of process on a defendant, a trial court lacks jurisdiction to enter a judgment against that defendant, and if the court nevertheless renders a judgment, the judgment is a nullity and is void ab initio. Lincoln Tavern, Inc. v. Snader, 165 Ohio St. 61, 64, 133 N.E.2d 606 (1956); Tuckosh v. Cummings, 7th Dist. No. 07HA9, 2008-Ohio-5819, ¶17. A judgment rendered without proper jurisdiction over the action or the defendant is void. Patton v. Diemer, 35 Ohio St.3d 68, 70, 518 N.E.2d 941(1988); Rokakis v. Estate of Thomas, 8th Dist. No. 89944, 2008-Ohio-5147, ¶7. “An action is commenced only when effective service of process is obtained.” “Appellee Joseph DiDomenico filed the complaint in 2007, but failed to perfect service of process on Appellants within one year as required by Civ.R. 3(A). The trial court initially dismissed the complaint, but reopened the case in 2009 to allow DiDomenico thirty more days to effect service. He missed this deadline, but did serve the complaint on Appellants two months later, and the matter eventually went to trial. The court granted judgment to DiDomenico, leading to this appeal. Appellants have not waived their right to challenge personal jurisdiction, and it is evident from the record that the action was never properly “commenced,” as that word is defined in Civ.R. 3. Thus, any judgment issued in the action is void. Appellee did not file a brief on appeal, and as there are no arguments to the contrary, the judgment of the trial court is vacated and the complaint is hereby dismissed under Civ.R. 3(A).” “Absent proper service of process on a defendant, a trial court lacks jurisdiction to enter a judgment against that defendant, and if the court nevertheless renders a judgment, the judgment is a nullity and is void ab initio.” “Failure of proper service is not a minor, hypertechnical violation of the rules. Such failure is in direct contravention of the Rules of Civil Procedure.” “A judgment rendered without proper jurisdiction over the action or the defendant is void.” “Appellee did not perfect service within one year, and the court had no jurisdiction to continue prosecuting the case unless Appellants waived service of process. It is clear from the record that Appellants did not waive proper service of process, as they raised it as an affirmative defense in their first filing with the trial court. The Ohio Supreme Court has held that when the affirmative defense of insufficiency of service of process is properly raised and preserved, a party's active participation in the litigation does not constitute a waiver of that defense.” “The defense is preserved even after trial has begun, all the evidence has been presented, and the defendant then files a motion to dismiss for insufficiency of service of process.” “The record indicates that Appellee filed a Civ.R. 60(B)(1) motion to vacate the dismissal of his complaint on grounds of excusable neglect, and the court effectively granted the motion by extending the time for service of process for 30 days. This motion was filed five months after the complaint was properly dismissed, and more than a year and half after the complaint was initially filed. By the time this motion was filed, the one year time limit in Civ.R. 3(A) had long expired. The action never “commenced,” because service was not made within one year. Hence, the action was never properly before the trial court. The trial court had no jurisdiction to take any action other than to dismiss Appellee’s Civ.R. 60(B) motion for an extension of time to complete service, since no complaint was actually pending before the court when the motion was filed. Every action taken by the trial court after the dismissal on October 27, 2008, was a nullity.” “If a judgment is void, the trial court has the inherent power to vacate the judgment, and a party need not seek relief under Civ.R. 60(B) in order to have the judgment vacated.” “Appellants have not waived their right to challenge personal jurisdiction, and it is evident from the record that the action was never properly “commenced,” as that word is defined in Civ.R. 3. Thus, any judgment issued in the action is void. Appellee did not file a brief on appeal, and as there are no arguments to the contrary, the judgment of the trial court is vacated and the complaint is hereby dismissed under Civ.R. 3(A).” “Failure of proper service is not a minor, hypertechnical violation of the rules. Such failure is in direct contravention of the Rules of Civil Procedure.” DiDomenico v. Valentino, Seventh District Court of Appeals (Mahoning County) 2012-Ohio-5992 at 11-14. “Indeed, the Ohio Supreme Court has held that when the affirmative defense of insufficiency of service of process is properly raised and preserved, a party’s active participation in the litigation does not constitute a waiver of that defense.” “The Court has even gone so far as to hold that the defense is still preserved even after trial has begun and all the evidence has been presented and the defendant then files a motion to dismiss for insufficiency of service of process.” Stewart v. Forum Health, Seventh District Court of Appeals (Mahoning County), 2010-Ohio-4855 at ¶30 citing Gliozzo v. Univ. Urologists of Cleveland, Inc., 114 Ohio St.3d 141, 2007-Ohio-3762, 870 N.E.2d 714, syllabus. First Bank of Marietta v. Cline (1984), 12 Ohio St.3d 317, 12 OBR 388, 466 N.E.2d 567. First Bank of Marietta v. Cline (1984), 12 Ohio St.3d 317,12 OBR 388, 466 N.E.2d 567. The limitations inherent in the requirements of due process and equal protection of the law extend to judicial as well as political branches of government, so that a judgment may not be rendered in violation of those constitutional limitations and guarantees. Hanson v Denckla, 357 US 235, 2 L Ed 2d 1283, 78 S Ct 1228(1958). It is a fundamental doctrine of law that a party to be affected by a personal judgment must have his day in court, and an opportunity to be heard. Renaud v. Abbott, 116 US 277, 29 L Ed 629, 6 S Ct 1194 (1886). “A judgment of a court without hearing the party or giving him an opportunity to be heard is not a judicial determination of his rights and is not entitled to respect in any other tribunal.” Sabariego v Maverick, 124 US 261, (8 S.Ct. 461, 31 L.Ed. 430) (1888). “If a judgment is void on its face, it is a mere nullity. It is as though it does not exist. The failure to attack a non-entity at a previous opportunity cannot have the effect of breathing life into it.” McCarthy v. Holloway, Supreme Court of Georgia 245 Ga. 710, 712 (1980). A void judgment is not entitled to the respect accorded a valid adjudication, but may be entirely disregarded, or declared inoperative by any tribunal in which effect is sought to be given to it. It is attended by none of the consequences of a valid adjudication. It has no legal or binding force or efficacy for any purpose or at any place. ... It is not entitled to enforcement ... All proceedings founded on the void judgment are themselves regarded as invalid. 30 A Am Jur Judgments '' 44, 45. “The Due Process Clause of the Fourteenth Amendment prohibits the government from interfering in familial relationships unless the government adheres to the requirements of procedural and substantive due process.” Croft v. Westmoreland County Children and Youth Services, U.S. Third Circuit Court of Appeals, 103 F. 3d 1123, at 11, 15-16 (1997). In Ex parte Fisk, 113 U.S. 713 (1885) supra, the U.S. Supreme Court decided that the circuit court had no authority under the statutes to issue the particular order that Fisk had violated, the U.S. Supreme Court therefore concluded, that the order of the circuit court, was made without jurisdiction, and was VOID. An order that exceeds the jurisdiction of the court is void, and can be attacked in any proceeding in any court where the validity of the judgment comes into issue. (See: Rose v. Himely (1808) 4 Cranch 241, 2 L Ed 608; Pennoyer v. Neff (1877) 95 US 714, 24 L Ed. 565; Thompson v. Whitman (1873) 18 Wall 457, 21 l ED 897; Windsor v. McVeigh (1876) 93 US 274, 23 L Ed 914; McDonald v. Mabee (1917) 243 US 90, 37 S Ct 343, 61 L Ed 608. “A substantive right or defense under the federal law cannot be lessened or destroyed by a state rule of practice”. Norfolk Southern R. Co. v. Ferebee, 238 U.S. 269-270 (1915) at the Syllabus of the Court. Public officers have no authority to bind the sovereign-in the case of American democracy, the whole people-except as is given by the specific constitutional or statutory provisions creating their offices. Brown v. City of Craig, 350 Mo. 836, 841, 168 S.W.2d 1080, 1082 (1943). THE U.S. SUPREME COURT'S MANDATED DUTY OF REASONABLENESS IN THE PERFORMING OF CONTRACTS BY THE GOVERNMENT "The Supreme Court implied a duty of reasonableness to the Government in performing contracts in the nineteenth century. See Clark v. United States, 73 U.S. 543, 545-46 (1867); United States v. Behan, 110 U.S. 338, 346 (1884). The Supreme Court disagreed, stating: "'But, surely, the willful and wrongful putting an end to a contract, and preventing the other party from carrying it out, is itself a breach of the contract for which an action will lie for the recovery of all damage which the injured party has sustained. The distinction between those claims under a contract which result from a performance of it on the part of the claimant, and those claims under it which result from being prevented by the other party from performing it, has not always been attended to.'" Id. at 346 "such a construction would afford no warrant for such an exercise of legislative power as, under the pretence and color of regulating, should subvert or injuriously restrain the right itself." Yick Wo v. Hopkins, 118 U.S. 356, 367-368, 370-371 (1886). “When the statute is clear and imperative, reasoning ab inconevienti is of no avial. It is the duty of the court to execute it.”*** “There being no ambiguity, there is no room for construction. It would be out of place”, “The section must be held to mean what the language imports.” The Cherokee Tobacco, 78 U.S. 11 Wall 616, 620 (1870) citing [United States v. Wiltberger, 5 Wheaton , 95], [Mirehouse v. Rennel, 1 Clark & Finelly, 527; Wolfe v. Koppel, 2 Denio 372]. Supreme Court Decisions on Void Orders A judgment may not be rendered in violation of constitutional protections. The validity of a judgment may be affected by a failure to give the constitutionally required due process notice and an opportunity to be heard. Earle v. McVeigh , 91 US 503, 23 L Ed 398. See also Restatements, Judgments ' 4(b). Prather v Loyd, 86 Idaho 45, 382 P2d 910. The limitations inherent in the requirements of due process and equal protection of the law extend to judicial as well as political branches of government, so that a judgment may not be rendered in violation of those constitutional limitations and guarantees. Hanson v Denckla, 357 US 235, 2 L Ed 2d 1283, 78 S Ct 1228. A void judgment is not entitled to the respect accorded a valid adjudication, but may be entirely disregarded, or declared inoperative by any tribunal in which effect is sought to be given to it. It is attended by none of the consequences of a valid adjudication. It has no legal or binding force or efficacy for any purpose or at any place. ... It is not entitled to enforcement ... All proceedings founded on the void judgment are themselves regarded as invalid. 30 A Am Jur Judgments '' 44, 45. It is a fundamental doctrine of law that a party to be affected by a personal judgment must have his day in court, and an opportunity to be heard. Renaud v. Abbott, 116 US 277, 29 L Ed 629, 6 S Ct 1194. Every person is entitled to an opportunity to be heard in a court of law upon every question involving his rights or interests, before he is affected by any judicial decision on the question. Earle v McVeigh , 91 US 503, 23 L Ed 398. No Opportunity to Be Heard A judgment of a court without hearing the party or giving him an opportunity to be heard is not a judicial determination of his rights. Sabariego v Maverick , 124 US 261, 31 L Ed 430, 8 S Ct 461, and is not entitled to respect in any other tribunal. "If a court grants relief, which under the circumstances it hasn't any authority to grant, its judgment is to that extent void." (1Freeman on Judgments, 120c.) An illegal order is forever void."A void judgment does not create any binding obligation. Federal decisions addressing void state court judgments include Kalb v. Feuerstein (1940) 308 US 433, 60 S Ct 343, 84 L Ed. 370; Ex parte Rowland (1882) 104 U.S. 604, 26 L. Ed. 861: "A judgment which is void upon its face, and which requires only an inspection of the judgment roll to demonstrate its wants of vitality is a dead limb upon the judicial tree, which should be lopped off, if the power to do so exists." People v. Greene , 71 Cal. 100 [16 Pac. 197, 5 Am. St. Rep. 448]. "If a court grants relief, which under the circumstances it hasn't any authority to grant, its judgment is to that extent void." (1Freeman on Judgments, 120c.) An illegal order is forever void. Void Orders Can Be Attacked At Any Time An order that exceeds the jurisdiction of the court, is void, or voidable, and can be attacked in any proceeding in any court where the validity of the judgment comes into issue. (See Rose v. Himely (1808) 4 Cranch 241, 2 L Ed. 608; Pennoyer v. Neff (1877) 95 US 714, 24 L Ed. 565; Thompson v. Whitman (1873) 18 Wall 457, 21 l ED 897; Windsor v. McVeigh (1876) 93 US 274, 23 L ed 914; McDonald v. Mabee (1917) 243 US 90, 37 S Ct 343, 61 L Ed. 608. U.S. v. Holtzman , 762 F.2d 720 (9th Cir. 1985) ("Portion of judgment directing defendant not to import vehicles without first obtaining approval ... was not appropriately limited in duration and, thus, district court abused its discretion by not vacating it as being prospectively inequitable." Id at 722. “A Law repugnant to the Constitution is void.” Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). If a judgment is void, the trial court has the inherent power to vacate the judgment, and a party need not seek relief under Civ.R. 60(B) in order to have the judgment vacated. Patton, supra at 70, 518 N.E.2d 941; see also,Ross v. Olsavsky, 7th Dist. No. 09 MA 95, 2010-Ohio-1310, ¶11. BAD FAITH In Bein v. Heath, 47 U.S. 228 (1848) wherein the U.S. Supreme Court stated that: “It is a principle in chancery that he who asks relief MUST have acted in good faith. The equitable powers of this Court can never be exerted in behalf of one who has acted fraudulently or who by deceit or any unfair means has gained an advantage. To [**aid**] a party in such a case **would make this Court** the [**abetter**] of iniquity.** And we suppose that this principle applies to the case under consideration.” Id. Bein v. Heath, supra at 247. UNCLEAN HANDS “…[T]he juvenile court’s handling of this case until this point inspires little confidence…” In re C.B., 129 Ohio St.3d 231, 2011-Ohio-2899 (Pfeifer, J., dissenting) at ¶ 40. Fourteenth Amendment, U.S. Constitution -- No state shall "deny to any person within its jurisdiction the equal protection of the laws." Article I, Section 2, Ohio Constitution: "All political power is inherent in the people. Government is instituted for their equal protection and benefit..." Trial courts always have an obligation to ensure that the proceedings are fair, See, the Fourteen Amendment to the United States Constitution; Ohio Constitution., Article I, §§1, 2, nd 16; and, more generally, Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973); State v. Lane, 60 Ohio St.2d 112, 397 N.E.2d 1338 (1979), and the authorities cited therein”, but that duty reaches a heightened level in death penalty cases because “death is different.” See, Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). "***"????????? "Once C.B. was adjudicated a dependent child, the Cuyahoga County Department of Children and Family Services (“CCDCFS”) was granted temporary custody. CCDCFS placed C.B. with**** foster parent***[s]***." ????????? In re C.B.,129 Ohio St.3d 231, 2011-Ohio-2899 at ¶ 1 ( Cupp, J.) [Emphasis added NOT SUPPLIED BY COURT ""...with**** foster parent***[s].***""] "***"????????? "The doctrine of "clean hands" is an equitable doctrine.” See, generally, Basil v. Vincello (1990), 50 Ohio St. 3d 185, 190, 553 N.E.2d 602; Brosky v. Brosky (Mar. 28, 2001), 9th Dist. No. 00CA007662, 2001 Ohio App. LEXIS 1426, citing Marinaro v. Major Indoor Soccer League (1991), 81 Ohio App. 3d 42, 45, 610 N.E.2d 450; Seminatore v. Climaco, Climaco, Lefkowitz & Garofolia Co., LPA, NO. 81568 , Court of Appeals of Ohio, Eighth Appellate District, Cuyahoga County, 2003 Ohio 3945; 2003 Ohio App. LEXIS 3513, July 24, 2003, Date of Announcement of Decision , Discretionary appeal not allowed by Seminatore v. Climaco, Climaco, Lefkowitz & Garofoli Co., L.P.A., 799 N.E.2d 187, 2003 Ohio LEXIS 3240 (Ohio, Nov. 26, 2003). "The doctrine of clean hands is based on the maxim of equity that provides "he who comes into equity must come with clean hands." Marinaro v. Major Indoor Soccer League (1991), 81 Ohio App.3d 42, 45, 610 N.E.2d 450. “This maxim "requires only that the plaintiff must not be guilty of reprehensible conduct with respect to the subject-matter of his suit." Kinner v. Lake Shore & Michigan S. Ry. Co. (1904), 69 Ohio St. 339, 69 N.E. 614, 1 Ohio L. Rep. 853, [*11] paragraph one of the syllabus. “The "clean hands" doctrine concerns grossly inequitable behavior in the underlying transaction which is the subject matter of the suit.” See, also, Goldberger v. Bexley Properties (1983), 5 Ohio St.3d 82, 85, 5 Ohio B. 135, 448 N.E.2d 1380; North Coast Cookies, Inc. v. Sweet Temptations, Inc. (1984), 16 Ohio App.3d 342, 16 Ohio B. 391, 476 N.E.2d 388, paragraph two of the syllabus. “Equity requires that, whenever a party takes the initiative to set in motion the judicial machinery to obtain some remedy but has violated good faith by his or her prior-related conduct, he will be denied the remedy.” Marinaro v. Major Indoor Soccer League (1991), 81 Ohio App.3d 42, 45, 610 N.E.2d 450. “To bar a party's claims, that party must be found to be at fault in relation to the other party and in relation to the transaction upon which the claims are based.” Trott v. Trott, Franklin App. No. 01 AP-852, 2002 Ohio 1077; Seitz v. Kozma, No. 86922,Court of Appeals of Ohio, Eighth Appellate District, Cuyahoga County, , 2006 Ohio 3591; 2006 Ohio App. LEXIS 3540, July 13, 2006. “The doctrine of unclean hands states the following: “‘he who seeks equity must come with clean hands.’” Patterson v. Blanton (1996), 109 Ohio App.3d 349, 354, 672 N.E.2d 208. “Neither the magistrate's nor the trial court's decision casts any light on the trial court's basis for addressing clean hands issues despite the fact that this affirmative defense was not pled. It is therefore difficult to establish the basis for the trial court's decision to address such issues despite appellee's objection thereto on a pleading basis. "Although Civ.R. 15 allows for a liberal amendment of the pleadings * * *, the rule will only apply when, as stated therein, the amendment would `conform to the evidence' and when the issue is tried by either the `express or implied consent of the parties.'" “Since appellee clearly objected to the introduction of the clean hands issue when it had not been properly pled (and just as clearly no amendment of the pleadings was ever obtained on motion of appellant) the only conclusion which can be obtained was that the issue was not properly pled before the trial court.” Patterson v. Blanton (1996), 109 Ohio App.3d 349, 354, 672 N.E.2d 208. "[I]t is fundamental that he who seeks equity must do equity, and that he must come into court with clean hands." "[F]or the doctrine of unclean hands to apply, the offending conduct must constitute reprehensible, grossly inequitable, or unconscionable conduct, rather than mere negligence, ignorance, or inappropriateness." “In Ohio, the maxim of unclean hands "requires only that the plaintiff must not be guilty of reprehensible conduct with respect to the subject-matter of his suit." See also: Deutsche Bank Natl. Trust Co. v. Pevarksi, Fourth District Court of Appeals, 187 Ohio App.3d 4552010-Ohio-785932 N.E.2d 887 at ¶ 24; Kinner v. Lake Shore Michigan S. Ry. Co. (1904), 69 Ohio St. 339, 69 N.E. 614, at paragraph one of the syllabus. “Thus, in Kinner, the Supreme Court of Ohio held that the unclean-hands doctrine relates only to the conduct of plaintiff's.” Kinner v. Lake Shore Michigan S. Ry. Co. (1904), 69 Ohio St. 339, 69 N.E. 614, at paragraph one of the syllabus, supra. "“[D]ishonest conduct on the part of an attorney generally warrants an actual suspension from the practice of law.” Butler Cty. Bar Assn. v. Minamyer, Slip Opinion No. 2011-Ohio-3642 at ¶ 21 citing Disciplinary Counsel v. Agopian, 112 Ohio St.3d 103, 2006-Ohio-6510, 858 N.E.2d 368. Cincinnati Bar Assn. v. Hauck, Slip Opinion No. 2011-Ohio-3281 at ¶ 9, and¶ 12 citing Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶ 16; Disciplinary Counsel v. Broeren, 115 Ohio St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21; Disciplinary Counsel v. Rooney, 110 Ohio St.3d 349, 2006-Ohio-4576, 853 N.E.2d 663 ¶ 12, citing Disciplinary Counsel v. Beeler, 105 Ohio St.3d 188, 2005-Ohio-1143, 824 N.E.2d 78, ¶ 44, and Disciplinary Counsel v. Fowerbaugh (1995), 74 Ohio St.3d 187, 191, 658 N.E.2d 237. “Duty to report misconduct” “The duty extends only to actual knowledge possessed by an attorney.” “Conduct that must be reported, on the other hand, includes matters such as “tampering with evidence”, suborning perjury, and dishonesty.” Duty to Report Oneself Under certain limited circumstances, the rules of the various jurisdictions require that a lawyer report his or her own misconduct to the agency or organization that handles attorney disciplinary matters. Neither the ABA Model Rule 8.3 nor the variations adopted by most states requires self-reporting. The reporting requirement only applies to a lawyer’s knowledge that another lawyer has committed a violation of the ABA Model Rules. The versions of Rule 8.3 adopted by most jurisdictions also require only the reporting of the misconduct of another lawyer. **An exception is **Ohio Rule 8.3.** This rule** appears to **require** self-**reporting…**” Further: “A recent ethics opinion in Ohio held that a lawyer had a duty to report any misconduct stemming from unprivileged information. Opinion 2007-01, Ohio Supreme Court Board of Commissioners on Grievances and Discipline (Feb. 9, 2007).” “This much is certain: Subordinate lawyers who are dragged into the fray when their bosses flout the ethics rules cannot assume their second-chair status excuses them from their professional obligations.” “The Way Out: Report Even if it Hurts You”; by Kathryn A. Thompson; Kathryn A. Thompson is research counsel for ETHICSearch, a service of the ABA Center for Professional Responsibility. 8.3:300 Reporting the Misconduct of a Judge Ohio Legal Ethics Narrative VIII Maintaining the integrity of the profession “8.3 RULE 8.3 REPORTING PROFESSIONAL MISCONDUCT” “Ohio Rule 8.3(b) now expressly deals with the matter and obligates a lawyer possessing unprivileged knowledge that a judge has violated any Rule of Professional Conduct or applicable rule of judicial conduct to "inform the appropriate authority." This duty runs to "any ethical violation by a judge," see the Task Force ABA Model Rules Comparison to Rule 8.3, not just those that raise "a substantial question as to the judge's fitness for office," as in MR 8.3(b).” RULE 8.3: REPORTING PROFESSIONAL MISCONDUCT (a) A lawyer who possesses unprivileged knowledge of a violation of the Ohio Rules of Professional Conduct that raises a question as to any lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects, shall inform a disciplinary authority empowered to investigate or act upon such a violation. (b) A lawyer who possesses unprivileged knowledge that a judge has committed a violation of the Ohio Rules of Professional Conduct or applicable rules of judicial conduct shall inform the appropriate authority. (c) Any information obtained by a member of a committee or subcommittee of a bar association, or by a member, employee, or agent of a nonprofit corporation established by a bar association, designed to assist lawyers with substance abuse or mental health problems, provided the information was obtained while the member, employee, or agent was performing duties as a member, employee, or agent of the committee, subcommittee, or nonprofit corporation, shall be privileged for all purposes under this rule. RULE 8.4: MISCONDUCT It is professional misconduct for a lawyer to do any of the following: (a) violate or attempt to violate the Ohio Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b) commit an illegal act that reflects adversely on the lawyer’s honesty or trustworthiness; (c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice; (e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Ohio Rules of Professional Conduct or other law; (f) knowingly assist a judge or judicial officer in conduct that is a violation of the Ohio Rules of Professional Conduct, the applicable rules of judicial conduct, or other law; (g) engage, in a professional capacity, in conduct involving discrimination prohibited by law because of race, color, religion, age, gender, sexual orientation, national origin, marital status, or disability; (h) engage in any other conduct that adversely reflects on the lawyer’s fitness to practice law. THE WAY OUT: Report Even if it Hurts You BY KATHRYN A. THOMPSON Rule 5.2(a) of the ABA Model Rules of Professional Conduct is emphatic: A lawyer is bound by the ethics rules “notwithstanding that the lawyer acted at the direction of another person.” The single exception to this rule is when the lawyer acts in accordance with a supervisory lawyer’s “reasonable resolution of an arguable question of professional duty.” It’s not enough for a subordinate lawyer to refuse to comply with any unethical directives from supervisors. The lawyer also is bound by ABA Model Rule 8.3 to report the supervisor to an appropriate disci­plinary agency if he or she “knows” the other lawyer has committed an ethics violation that raises a “substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer.” This requirement applies even when, as in Bowden, the reporting lawyer risks implicating him- or herself in an ethics breach. There’s one more thing: Subor­di­nate lawyers also must contend with their obligations toward affected clients under ABA Model Rule 1.6. That rule prohibits lawyers from revealing information about rep­resentations unless clients give informed consent or the information falls within an enumerated excep­tion to the rule. And Model Rule 8.3 specifically states that lawyers are not required to disclose infor­mation that is otherwise protected by Rule 1.6. Thus, in reporting the conduct of a supervisor to a disciplinary authority, the lawyer has to take into account what information must be revealed to support the charge. If the information is confidential for purposes of Model Rule 1.6, client consent is generally required before the information may be revealed. To complicate matters, the standard of disclosure may vary from state to state. A recent ethics opinion in Ohio held that a lawyer had a duty to report any misconduct stemming from unprivileged information. Opinion 2007-01, Ohio Supreme Court Board of Commissioners on Grievances and Discipline (Feb. 9, 2007). By contrast, the broader scope of Model Rule 1.6 protects the disclosure of any information relating to the representation (subject to specific exceptions). This much is certain: Subordinate lawyers who are dragged into the fray when their bosses flout the ethics rules cannot assume their second-chair status excuses them from their professional obligations. Kathryn A. Thompson is research counsel for ETHICSearch, a service of the ABA Center for Professional Responsibility.

Posted by El Hotepsekhemwy Pero at 2020-11-30 04:56:59 UTC