This grievance is against attorney Patsy A. Thomas (0063312) who represented the City of Columbus, Ohio, plaintiff, in the Municipal Court of Franklin County, Ohio, Environmental Division, case number 1999 EVH - 075795. I, John E. Rees, and my wife, Carol A. Rees, were the defendants in the case.
We allege Ms Thomas to be in violation of both Ethical Considerations as well as Disciplinary Rules as follows:
Ethical Consideration Violations
Attorney Thomas is in violation of Canon 7, Ethical Consideration EC 7-4, that states in part that, . . . a lawyer is not justified in asserting a position in litigation that is frivolous.
Attorney Thomas is in violation of Canon 7, Ethical Consideration EC 7-10, that states: The duty of a lawyer to represent his client with zeal does not militate against his concurrent obligation to treat with consideration all persons involved in the legal process and to avoid the infliction of needless harm.
Attorney Thomas is in violation of Canon 7, Ethical Consideration EC 7-14, that states in part that A government lawyer who has discretionary power relative to litigation should refrain from instituting or continuing litigation that is obviously unfair. A government lawyer not having such discretionary power who believes there is lack of merit in a controversy submitted to him should so advise . . . in a civil action . . . has the responsibility to seek justice and to develop a full and fair record . . . not use his position . . . to harass parties . . .
Attorney Thomas is in violation of Canon 7, Ethical Consideration EC 7-25, that states in part that, . . . a lawyer is not justified in consciously violating such rules (rules of evidence and procedure) and he should be diligent in his efforts to guard against his unintentional violation of them. As examples, a lawyer should subscribe to or verify only those pleadings that he believes are in compliance with applicable law and rules . . . a lawyer should not by subterfuge put before a jury matters which it cannot properly consider.
Disciplinary Rules Violations
Attorney Thomas is in violation of Canon 7, Disciplinary Rule DR 7-102 (A)(1), that states in part, . . . a lawyer shall not file a suit, assert a position . . . or take other action on behalf of his client when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another.
Attorney Thomas is in violation of Canon 7, Disciplinary Rule DR 7-102 (A)(2), that states in part that, . . . a lawyer shall not knowingly advance a claim that is unwarranted under existing law . . .
Attorney Thomas is in violation of Canon 7, Disciplinary Rule DR 7-106 (C)(1), that states that, In appearing in his professional capacity before a tribunal, a lawyer shall not state or allude to any matter that he has no reasonable basis to believe is relevant to the case or that will not be supported by admissible evidence.
Attorney Thomas is in violation of Canon 7, Disciplinary Rule DR 7-106 (C)(7), that states that a lawyer shall not, Intentionally or habitually violate any established rule of procedure or of evidence
The facts of this matter as supported by the case record are as follows:
On October 13, 1999, attorney Thomas filed the previously named suit.
Attorney Thomas alleged we were in violation of Columbus City Code (hereafter CC) §3305.01 at a commercial property we had owned continuously since 1964.
In a record hearing on November 18, 1999, to clear up ambiguities in the complaint, the judge granted motions to, make it definite that section 3305.01 of the Columbus City Code is the section that is being alleged . . . that the defendant has not complied with (Copy attached as exhibit A).
Attorney Thomas either knew or should have known that section CC §3305.01 first became law in 1979.
In the defendants Answer filed on November 3, 1999 the defendants advised attorney Thomas that section CC §3305.01 became law in 1979 (Copy attached as exhibit B).
In the defendants Answer filed on November 3, 1999 the defendants advised attorney Thomas that the then current commercial use of the property was established by the defendants in July of 1964.
Evidence in the plaintiffs files indicated the commercial use of the property in 1964.
Documents given to the defendants by attorney Thomas, under the Discovery rules, before the trial, indicated the city knew of the commercial use of the property.
At no time before or during the trial did attorney Thomas ask that her complaint be amended.
At no time after the above-mentioned November 18, 1999 record hearing did the judge amend the complaint.
At the trial on June 19, 2000 attorney Thomas presented no credible evidence whatsoever that the defendants were in violation of CC §3305.01.
Thomas first witness was Dwayne Howard, a.k.a. Hiram Howard, the code enforcement inspector who issued a Zoning Code Violation Order to the tenant of the property alleging violation of CC §3305.01, which was presented as an exhibit.
Howard then testified that although his name was on the order, he did not write the order and that he did not know if the violation existed, and that his supervisor, Janine Aeh, wrote the order.
Howard testified that he drove by the property a number of times and he observed no violations at the property.
Janine Aeh, the supervisor, refuted Howards testimony, testified she did not write the Zoning Code Violation Order and had no knowledge of the order until after it was delivered.
Over the objections of the defendants, the judge permitted attorney Thomas to present matters irrelevant to the charge and to which the defendants were required to defend against, even though they had no forewarning.
Attorney Thomas presentation wandered aimlessly as she failed to present ANY evidence whatsoever to sustain the complaint.
When the defendants started to present their defense and BEFORE they presented any evidence, attorney Thomas stipulated that the commercial use of the property had been continuous since 1964 as the defendants had alleged from the beginning (remember the code we were charged with violating became law in 1979).
At no time did attorney Thomas or anyone else make any allegations that any special condition existed that would have made the CC §3305.01 retroactive to any time before its enactment in 1979.
At the conclusion of the trial the judge found the defendants were not in violation of any Columbus City Code or any other code.
Since NO EVIDENCE was presented to support the complaint, and since Thomas STIPULATED that the property use was continuous since 1964, and since she alleged no special circumstances that would make the 1979 code retroactive, it is apparent that, ATTORNEY THOMAS KNEW BEFORE THE TRIAL STARTED THAT THE DEFENDANTS WERE NOT IN VIOLATION OF THE CODE AS ALLEGED, a clear violation of one or more disciplinary rules.
Attorney Thomas used the trial for purposes other than to try to prove the allegations in the complaint.
Predictably, the court, found that:
"No person in authority with the city of Columbus made any effort either in 1964 or 1968 to deny defendants permits to make additions to the garage which the city of Columbus' records indicate as of 1964 was a commercial garage. Not until thirty_four years after the 1964 permit had been issued by the city of Columbus did anyone from the city question the uses to which 613 East Whittier had been continuously put for over three decades."
"This Court finds nothing in the ordinances that would require this Court to find as a mater of law that defendants' dual residential and garage repair shop uses of their property since 1964 has been illegal."
"Plaintiff's request for injunctive relief is DENIED."
A second point of contention, which is also a complaint against attorney Thomas, is the fact that in her Post Hearing Brief, she alleged many matters of which no evidence was presented, in addition to not being relevant to the complaint (See Defendants Reply Brief for details, attached as Exhibit C). The two most egregious examples are:
The defendants were put through considerable anguish. The ordeal has adversely affected the health of defendant John Rees. Because the judge made it apparent that, without any specificity, any and all codes that might apply to the property would be subject to review, the defendants were forced to expended literally hundreds of hours researching the entire zoning code and all amendments published in literally thousands of pages of unindexed city bulletins dating back to the enactment of the zoning code on August 9, 1923.
We respectfully request that these matters be investigated and that appropriate disciplinary action be taken.