[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Ohio State Bar Assn. v. McCafferty, Slip Opinion No. 2014-Ohio-3075.]
NOTICE
This slip opinion is subject to formal revision before it is published in
an advance sheet of the Ohio Official Reports. Readers are requested
to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
65 South Front Street, Columbus, Ohio 43215, of any typographical or
other formal errors in the opinion, in order that corrections may be
made before the opinion is published.
SLIP OPINION NO. 2014-OHIO-3075
OHIO STATE BAR ASSOCIATION v. MCCAFFERTY.
[Until this opinion appears in the Ohio Official Reports advance sheets,
it may be cited as Ohio State Bar Assn. v. McCafferty,
Slip Opinion No. 2014-Ohio-3075.]
Judges—Misconduct—Felony convictions—Lying to FBI agents—Conduct
prejudicial to administration of justice—Conduct adversely reflecting on
fitness to practice law—Violation of rules of Code of Judicial Conduct,
including those prohibiting noncompliance with law and abuse of prestige
of office—Indefinite suspension imposed, without credit for time served
under interim felony suspension, to begin when term of federal supervised
release is completed.
(No. 2013-0939—Submitted August 21, 2013—Decided July 17, 2014.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 2012-056.
____________________
SUPREME COURT OF OHIO
O’NEILL, J.
{¶ 1} Respondent, Bridget Marie McCafferty of Westlake, Ohio,
Attorney Registration No. 0055367, was admitted to the practice of law in Ohio in
1991. Prior to this, McCafferty had no disciplinary history.
{¶ 2} McCafferty served as a judge on the Cuyahoga County Court of
Common Pleas from January 11, 1999, until September 15, 2010, when she was
arrested. In February 2011, McCafferty was indicted by a federal grand jury on
multiple counts of making false statements to the Federal Bureau of Investigation
in violation of 18 U.S.C. 1001. In August of that year, a jury found McCafferty
guilty on all counts.
{¶ 3} On September 14, 2011, we imposed an interim suspension on
McCafferty’s license to practice law based on her conviction. In re McCafferty,
129 Ohio St.3d 1467, 2011-Ohio-4605, 953 N.E.2d 334. On August 6, 2012, the
Ohio State Bar Association, relator, filed a complaint with the Board of
Commissioners on Grievances and Discipline against McCafferty, requesting that
McCafferty be disciplined.
{¶ 4} On January 23, 2013, a three-member panel of the board held a
hearing. The parties stipulated that McCafferty’s convictions constituted certain
rule violations. In accordance with this stipulation, the panel found that
McCafferty’s conduct violated Prof.Cond.R. 8.4(b) (prohibiting a lawyer from
committing an illegal act that reflects adversely on the lawyer's honesty or
trustworthiness), 8.4(c) (prohibiting a lawyer from engaging in conduct involving
dishonesty, fraud, deceit, or misrepresentation), 8.4(d) (prohibiting a lawyer from
engaging in conduct that is prejudicial to the administration of justice), and 8.4(h)
(prohibiting a lawyer from engaging in conduct that adversely reflects on the
lawyer's fitness to practice law). The panel further found that McCafferty
violated Jud.Cond.R. 1.1 (a judge shall comply with the law), 1.2 (a judge shall
act in a manner that promotes public confidence in the independence, integrity,
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January Term, 2014
and impartiality of the judiciary), 1.3 (a judge shall not abuse the prestige of
judicial office to advance the personal or economic interests of the judge or
others), and 2.4(B) (a judge shall not permit family, social, political, financial, or
other interests or relationships to influence the judge’s judicial conduct or
judgment). The panel recommended that McCafferty be indefinitely suspended
from the practice of law with no credit for time served under the 2011 interim
felony suspension.
{¶ 5} On June 6, 2013, the board adopted the findings of fact,
conclusions of law, and recommendation of the panel and recommended that
McCafferty be suspended indefinitely from the practice of law in Ohio with no
credit for time served, with costs taxed to McCafferty.
{¶ 6} We adopt the board’s findings of fact, misconduct, and
recommended sanction. We find that an indefinite suspension from the practice
of law with no credit for time served during the felony suspension is the
appropriate sanction in this case.
Misconduct
{¶ 7} In the summer of 2007, the FBI formally opened an investigation
based on allegations of widespread corruption among public officials and public
employees in and around Cuyahoga County. The primary focus of the
investigation was on Cuyahoga County Commissioner James Dimora and
Cuyahoga County Auditor Frank Russo. The FBI intercepted some 44,000
telephone conversations between various public officials and private citizens in
furtherance of the investigation. These calls included conversations between
McCafferty, Frank Russo, and others in which she revealed that she had used or
intended to use her influence in cases in her courtroom to advance the interests of
Russo and Dimora and to get more favorable settlement terms for local
businessman Steve Pumper. This misuse of her judicial position was not charged
in the criminal complaint and is not part of the instant case.
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SUPREME COURT OF OHIO
{¶ 8} On September 23, 2008, FBI Agents Oliver and Curtis pulled into
McCafferty’s driveway unannounced as she was taking her garbage cans to her
garage. They asked if they could talk to her about the Cuyahoga County
corruption investigation. McCafferty agreed and invited them inside to sit at her
kitchen table.
{¶ 9} The agents asked McCafferty numerous questions about Dimora,
Russo, and Pumper. McCafferty denied that Dimora had ever attempted to
influence or intervene in any cases before her court. She also denied that Dimora
had any involvement in any cases before her court. When questioned about Russo,
McCafferty told the federal agents that she had never spoken to Russo about any
of her cases. And when asked about Steve Pumper, McCafferty denied ever
attempting to sway settlement negotiations for Pumper. And she denied ever
telling Pumper that she had tried to settle his case for less money.
{¶ 10} The agents stopped the interview and told McCafferty that they
knew she was being dishonest. They warned her that lying to federal agents was a
federal crime. They even told her about the wiretapped conversations and
offered, multiple times, to play the tapes for her. McCafferty repeatedly refused
to listen to the recordings.
{¶ 11} McCafferty was indicted, tried, and convicted on ten counts of
violating 18 U.S.C. 1001, making false statements to federal law enforcement. In
sentencing McCafferty, the trial court merged the counts, reducing the number to
four. The court applied an upward variance from a standard sentence due to the
fact that McCafferty was a sitting judge at the time she committed her crimes.
McCafferty received the maximum sentence of 14 months in prison, with three
years of supervised release. She was also ordered to serve 150 hours of
community service and pay a fine of $400.
{¶ 12} On September 13, 2011, McCafferty reported to Federal Prison
Camp Alderson in West Virginia. She completed her prison term with good-time
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January Term, 2014
credit, and on September 17, 2012, she began serving three years of probation in
accordance with her sentence. She has completed her community-service
requirement and paid her fine and has no requirements left on her probation other
than filing a monthly report with her probation officer. Barring a parole violation,
McCafferty will complete her term of supervised release on September 17, 2015.
{¶ 13} The day after her incarceration, we imposed the interim felony
suspension, and 11 months later, the complaint now before us was filed. A panel
of the board held a hearing in January 2013. The parties stipulated to the
following: (1) Pursuant to Gov.Bar R. V(5)(B), McCafferty’s federal conviction
of four counts of providing false statements “constitute[s] conclusive evidence
that she engaged in the charged acts and conduct,” (2) McCafferty’s actions
constitute a violation of Prof.Cond.R. 8.4(b), (c), (d), and (h), and (3)
McCafferty’s actions constitute a violation of Jud.Cond.R. 1.1 and 1.2.
{¶ 14} McCafferty disputed that her conduct violated Jud.Cond.R. 1.3 and
2.4. Jud.Cond.R. 1.3 provides, “A judge shall not abuse the prestige of judicial
office to advance the personal or economic interests of the judge or others, or
allow others to do so.” Jud.Cond.R. 2.4(B) and (C) provide, “A judge shall not
permit family, social, political, financial, or other interests or relationships to
influence the judge’s judicial conduct or judgment,” and a judge “shall not convey
or permit others to convey the impression that any person or organization is in a
position to influence the judge.” The board, however, found that McCafferty had
violated these rules. The board concluded that McCafferty’s false statements to
the FBI about Russo’s and Dimora’s attempts to influence her judicial conduct
were attempts to make herself appear less susceptible to such influence than she
actually was and that through those false statements, she abused the prestige of
her office to advance her personal interest and the interests of Russo and Dimora.
We agree. Thus, we adopt the board’s findings of fact and conclusions of law
regarding McCafferty’s misconduct.
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SUPREME COURT OF OHIO
Sanction
{¶ 15} When determining the appropriate sanction to impose on
McCafferty for her violations of the Ohio Rules of Professional Conduct and the
Ohio Code of Judicial Conduct, we consider the duties violated, respondent’s
mental state, the injury caused, the existence of aggravating or mitigating factors,
and applicable precedent. Disciplinary Counsel v. O’Neill, 103 Ohio St.3d 204,
2004-Ohio-4704, 815 N.E.2d 286, ¶ 45; Disciplinary Counsel v. Kaup, 102 Ohio
St.3d 29, 2004-Ohio-1525, 806 N.E.2d 513, ¶ 11; Disciplinary Counsel v. Evans,
89 Ohio St.3d 497, 501, 733 N.E.2d 609 (2000). McCafferty has not offered
evidence of any medical disability or chemical dependency that contributed to her
ethical violations. Thus, we presume that she was healthy and unhindered at the
time. Disciplinary Counsel v. Hoskins, 119 Ohio St.3d 17, 2008-Ohio-3194, 891
N.E.2d 324, at ¶ 84, citing Disciplinary Counsel v. Sargent, 118 Ohio St.3d 322,
2008-Ohio-2330, 889 N.E.2d 96, ¶ 31.
{¶ 16} This court has stated that judges are held to the highest possible
standard of ethical conduct. Mahoning Cty. Bar Assn. v. Franko, 168 Ohio St. 17,
23, 151 N.E.2d 17 (1958); Hoskins at ¶ 42. Canon 1 of the Ohio Code of Judicial
Conduct states that a judge “shall uphold and promote the independence,
integrity, and impartiality of the judiciary, and shall avoid impropriety and the
appearance of impropriety.” As the board correctly observed, a judge’s violation
of these duties can undermine public confidence in the judiciary, particularly
when the violation constitutes a felony, Disciplinary Counsel v. Gallagher, 82
Ohio St.3d 51, 53, 693 N.E.2d 1078 (1998) (“When a judge’s felonious conduct
brings disrepute to the judicial system, the institution is irreparably harmed”). By
her own admission, McCafferty violated duties imposed upon her by the Code of
Judicial Conduct and the Rules of Professional Conduct. The most basic of those
duties is to adhere to the law at all times without fail. McCafferty thus had the
duty to be truthful with the FBI without regard to the outcome for herself, Russo,
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January Term, 2014
Dimora, or others. Her failure to cooperate with the FBI resulted in prolonging a
federal investigation, and McCafferty’s conviction undermined public confidence
in the judiciary.
{¶ 17} In aggravation, the parties have stipulated and the board has found
that McCafferty’s conviction arose from conduct that involved dishonesty. BCGD
Proc.Reg. 10(B)(1). We agree. We further observe that McCafferty’s insistence
that she subjectively believed that she was telling the truth to the FBI agents,
despite the fact that there are recordings of telephone calls demonstrating that she
was not telling the truth, is an aggravating factor in this case. BCGD Proc.Reg.
10(B)(1)(g).
{¶ 18} In mitigation, the board found the following factors: McCafferty
had no prior disciplinary record, she displayed a cooperative attitude during the
disciplinary proceedings, she submitted many letters attesting to her good
character and reputation, she had a record of extensive community service, and
she had suffered prior penalties for this misconduct, such as the loss of her
judgeship, incarceration, a fine, court-ordered community service, and supervised
release. BCGD Proc.Reg. 10(B)(2)(a), (d), (e), and (f). We agree. We further
observe that McCafferty has made a timely good-faith effort to rectify the
consequences of her misconduct. Examples of this include McCafferty’s prompt
completion of the 150 hours of community service imposed as a result of her
conviction, prompt payment of her monetary penalty, and her efforts in tutoring
women in prison to help them to obtain a GED. BCGD Proc.Reg. 10(B)(2)(c).
Applicable precedent
{¶ 19} The relator has maintained that permanent disbarment is the
appropriate sanction, and the case law supporting disbarment is clear. McCafferty
has requested a fixed suspension of 24 months. The board has recommended an
indefinite suspension with no credit for the time served under the interim felony
suspension imposed in September 2011.
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SUPREME COURT OF OHIO
{¶ 20} This court affirms its position that “ ‘judges are held to higher
standards of integrity and ethical conduct than attorneys or other persons not
invested with the public trust.’ ” O’Neill, 103 Ohio St.3d 204, 2004-Ohio-4704,
814 N.E.2d 286, ¶ 57, quoting Shaman, Lubet & Alfini, Judicial Conduct and
Ethics 2 (3d Ed.2000). The primary purposes of judicial discipline are to protect
the public, guarantee the evenhanded administration of justice, and to bolster
public confidence in the institution. Id. at ¶ 33, citing Kloepfer v. Comm. on
Judicial Performance, 49 Cal.3d 826, 864-865, 264 Cal.Rptr. 100, 782 P.2d 239
(1989).
{¶ 21} We recognize the board’s observation, at relator’s urging, that this
court has found disbarment to be an appropriate sanction for a judge who has been
convicted of a felony. Gallagher, 82 Ohio St.3d 51, 693 N.E.2d 1078 (judge
disbarred after federal conviction for distributing cocaine); Disciplinary Counsel
v. McAuliffe, 121 Ohio St.3d 315, 2009-Ohio-1151, 903 N.E.2d 1209 (judge
disbarred after being convicted of multiple federal offenses for burning down his
house to defraud an insurance company). And this court has disbarred judges for
dishonest conduct that has not resulted in a felony conviction. Hoskins, 119 Ohio
St.3d 17, 2008-Ohio-3194, 891 N.E.2d 324 (judge disbarred for multiple
violations involving serious deceit and misrepresentation).
{¶ 22} We also recognize that this court has not always permanently
disbarred a judge for dishonest conduct. Evans, 89 Ohio St.3d 497, 733 N.E.2d
609 (six-month stayed suspension for judge who, as judicial candidate, used
township property and the labor of inmates and welfare recipients that he did not
pay for or disclose). Even when the misconduct results in a felony conviction,
disbarment is not inevitable. Disciplinary Counsel v. Crane, 56 Ohio St.3d 38,
564 N.E.2d 96 (1990) (indefinite suspension with no credit for time served for
judge convicted of federal tax evasion and filing a false return). And this court
has said, “ ‘[P]roof of a criminal conviction is generally not conclusive of the
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January Term, 2014
issue of moral turpitude, which required consideration of all the circumstances
surrounding the illegal conduct.’ ” McAuliffe at ¶ 24, quoting Disciplinary
Counsel v. Burkhart, 75 Ohio St.3d 188, 191, 661 N.E.2d 1062 (1996).
{¶ 23} We agree with the board that the circumstances in this case can be
distinguished from Gallagher, McAuliffe, and Hoskins, in which judges were
permanently disbarred. In those cases, the judges had engaged in criminal
conduct over a period of time, from a few days to months, and the misconduct
was preplanned.
{¶ 24} Certainly McCafferty’s conduct warrants a severe sanction. She
was convicted on multiple counts of lying to FBI agents about conversations with
people who were the subject of a county-wide corruption investigation. In
addition, McCafferty was deceptive about the nature of those conversations, most
particularly that those conversations included matters that had been before her in
court. Notwithstanding, the conduct that led to the criminal convictions and rule
violations occurred during a single impromptu conversation with FBI agents,
rather than as a pattern of premeditated criminal conduct. Thus, we agree with the
board that imposition of the system’s most severe sanction is not warranted in this
case.
{¶ 25} But we also do not believe that the appropriate sanction is a fixed-
term suspension. Despite McCafferty’s cooperative attitude during the
disciplinary proceedings, we are troubled by the contradiction between
McCafferty’s assertion that she accepts full responsibility for her actions and her
statement that she believed that she had answered the agents’ questions as
truthfully as she could. She clings to this claim, despite its utter implausibility in
the face of the recorded conversations. Thus, we determine that an indefinite
suspension without credit for time served is the appropriate sanction for her
misconduct.
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SUPREME COURT OF OHIO
Conclusion
{¶ 26} Accordingly, Bridget Marie McCafferty is indefinitely suspended
from the practice of law in Ohio with no credit for any period of earlier
suspension. Her interim felony suspension continues until she completes all terms
of her federal supervised release and has been discharged by the federal district
court, and this indefinite suspension will begin at that time. Costs are taxed to
McCafferty.
Judgment accordingly.
PFEIFER, O’DONNELL, and KENNEDY, JJ., concur.
O’CONNOR, C.J., and LANZINGER and FRENCH, JJ., dissent.
____________________
LANZINGER, J., dissenting.
{¶ 27} I do not see how the majority can square a sanction of a mere
indefinite suspension with its statements that “[t]his court has stated that judges
are held to the highest possible standard of ethical conduct,” majority opinion at
¶ 16, citing Mahoning Cty. Bar Assn. v. Franko, 168 Ohio St. 17, 23, 151 N.E.2d
17 (1958), and Disciplinary Counsel v. Hoskins, 119 Ohio St.3d 17, 2008-Ohio-
3194, 891 N.E.2d 324, ¶ 42, and that “ ‘ “judges are held to higher standards of
integrity and ethical conduct than attorneys or other persons not invested with the
public trust,” ’ ” majority opinion at ¶ 20, quoting Disciplinary Counsel v.
O’Neill, 103 Ohio St.3d 204, 2004-Ohio-4704, 814 N.E.2d 286, ¶ 57, quoting
Shaman, Lubet & Alfini, Judicial Conduct and Ethics 2 (3d Ed.2000).
{¶ 28} I disagree that Bridget McCafferty’s case should be distinguished
from other cases in which a judge has been disbarred. She has been convicted of
a felony, as were the judges in Disciplinary Counsel v. Mosely, 69 Ohio St.3d
401, 632 N.E.2d 1287 (1994); Disciplinary Counsel v. Gallagher, 82 Ohio St.3d
51, 693 N.E.2d 1078 (1998); Disciplinary Counsel v. McAuliffe, 121 Ohio St.3d
315, 2009-Ohio-1151, 903 N.E.2d 1209.
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January Term, 2014
{¶ 29} We are to consider all the circumstances surrounding her conduct
in determining what sanction should be imposed for these disciplinary violations.
See BCGD Proc.Reg. 10(B); Hoskins at ¶ 79. McCafferty was convicted on
multiple counts of lying to FBI agents about conversations with people who were
the subject of a county-wide corruption investigation. Those conversations,
which the FBI intercepted, revealed that she had used or intended to use her
influence in cases in her courtroom to advance the interests of Frank Russo,
Jimmy Dimora, and a local businessman. This misconduct strikes at the very
heart of the judiciary.
{¶ 30} And it is not conduct that we can ignore, as the majority opinion
attempts to do. The majority focuses solely on McCafferty’s conversation with
FBI agents and paints her conduct as a one-time, brief lapse in judgment. This
narrow characterization is simply untrue; McCafferty’s misconduct was more
prolonged and more egregious than the majority admits. Months before she ever
spoke to the FBI, McCafferty was swaying judicial outcomes for political
associates and giving special consideration to high-ranking politicians. There can
be no dispute that this conduct occurred. McCafferty’s criminal indictment
outlined her involvement with Dimora and Russo, and she stipulated, at her
disciplinary hearing, to engaging in the conduct described in the indictment. Even
without this clear stipulation, her convictions alone would still establish an
irrebuttable presumption that this particular misconduct occurred. See Gov.Bar R.
V(5)(B). We must therefore presume that she grossly abused her judicial position
for political favor.
{¶ 31} There can also be no dispute that this misconduct is part of the case
before us. The disciplinary complaint specifically charged McCafferty with
violations of Jud.Cond.R. 1.3 (“A judge shall not abuse the prestige of judicial
office to advance the personal or economic interests of the judge or others, or
allow others to do so”) and Jud.Cond.R. 2.4 (“A judge shall not permit family,
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SUPREME COURT OF OHIO
social, political, financial, or other interests or relationships to influence the
judge’s judicial conduct or judgment”). Both of these rule violations relate to her
abuse of office and her involvement with Russo and Dimora. It therefore makes
no sense for the majority to claim that McCafferty’s misuse of her position is “not
a part of the instant case.” Majority opinion at ¶ 7. If it formed the basis for her
rule violations—violations which the majority upholds—then it is clearly part of
this case and we must consider it in imposing our sanction.
{¶ 32} We have stated that “[w]hen a judge’s felonious conduct brings
disrepute to the judicial system, the institution is irreparably harmed,” and the
judge deserves “the full measure of our disciplinary authority.” Gallagher, 82
Ohio St.3d at 53, 693 N.E.2d 1078. If the primary purposes of judicial discipline
are to protect the public, guarantee the evenhanded administration of justice, and
to bolster public confidence in the institution, then nothing short of disbarment
should be imposed in this case.
O’CONNOR, C.J., and FRENCH, J., concur in the foregoing opinion.
____________________
Douglas N. Godshall, Eugene P. Whetzel, and Joseph S. Kodish, for
relator.
Montgomery, Rennie & Jonson, George D. Jonson, and Kimberly
Vanover Riley, for respondent.
_________________________
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