ROAD RAGE – Personal & Professional Consequences

Sometimes very ugly behavior by a motorist DOES have consequences…personal and professional.

In 2015 a Columbus cyclist was riding along. From his testimony, he was riding to the right of a line of cars stopped by a garage truck.  This apparently enraged a motorist who was stuck in line. The cyclist testified that he made a turn, and the motorist followed him, passed him VERY closely and then slammed on the brakes in a classic “brake check” maneuver, causing the cyclist to hit the back of the big black Mercedes.  The Mercedes driver recalled it differently, claiming the cyclist smacked his car while passing on the right and suggesting that he followed the cyclist because he thought his car was damaged. He claimed the cyclist intentionally ran into the back of the car.

… and THEN… it got crazy…

The motorist got out and started aggressively verbally berating the cyclist, who, thankfully, did not suffer serious injury. The cyclist testified later that the motorist got in his face, very close to him, and was screaming at him that he had intentionally run his bicycle into the back of the  Mercedes.

A motorist coming from the opposite direction stopped. It turns out he was an Emergency Room physician. He stopped because he saw the aggressive driving of the motorist and thought he would have to scrape the cyclist up off the pavement. Once he saw that the cyclist was OK, and that the motorist was acting…oddly… angrily raging, he took out his iPhone and started recording video.

… and THEN it got crazy…

The motorist realized he was on camera and turned his rage towards the E/R doc. While the phone was filming, he came at the doc and took at swipe at him, or the phone. He then got back into his car and started to drive up the road a bit. The doc turned off the camera…

… and THEN it got crazy…

The motorist drove up a short distance, got out of the car and returned… still very angry…  The motorist confronts, and then goes after the doc, who has turned the camera back on to record the fellow’s further antics.

Meanwhile, the cyclist has called 911 to report the ‘irate driver” and get police to the scene. During the call the cyclist says “…he’s actually getting violent right now with another man who is filming…He’s getting violent…”

The cyclist goes on the describe the incident to the 911 operator in which the motorist attacks the E/R doc, taking items from him. You can hear the doc in the background saying “Give me my sunglasses” and “Please, will you just give me my stuff back.”

The cyclist tells the 911 operator that the motorist is “trying to steal the phone with him videotaping“… The cyclist then tells the operator “…he stomped on the gentleman’s phone with his foot…”

Another fellow arrived who tried to separate the Doc and the Motorist, and he too was shoved by the Motorist.

Unfortunately, the motorist smashed the Doc’s phone as it was recording the second encounter… i.e., the Doc didn’t stop and “save” the video before the phone was smashed. The second video was not on the hard drive or the cloud. While we explored trying to forensically  obtain the second video, we were able to obtain the first video snippet showing the motorist striking out at the Doc. The 2nd one was seemingly lost. Thankfully, the 911 call provided a detailed account of exactly what transpired… in real time… by a well-spoken narrator!

…and THEN it got crazy…

The motorist makes his own 911 call, claiming “…a biker ran into the back of my car… now these guys are harassing me. And two guys hit me.”

The police arrive. The officer talked to the Motorist who said “well officer, it’s like these bicyclists around here are part of a bike militia or something.”

Turns out the Motorist was a Lawyer… he LawyerSplained® to the Officer that he was legally entitled to “gather evidence” which is why he took, and was holding on to, the cell phone and would not give it back.  When the officer explained that he could not simply take stuff from someone he told the officer “I’m pretty sure you’re wrong officer… I’m allowed to collect evidence…”

 

 

The Officer spoke further with the E/R Doc… and the Road Raging Lawyer was subsequently charged with Criminal Damaging.

 

 

 

 

 

 

… and THEN it got crazy…

The criminal case percolated to a trial date in the Franklin County Municipal Court. The Lawyer failed to appear on certain scheduled court dates & simply walked out of the courtroom and left the courthouse on another.  He filed a pro se motion seeking dismissal of the case on “speedy trial” grounds.

The Prosecutor pointed out that the case had not been tried because the Lawyer had failed to show up. On the day he left the courthouse before the case was called the Judge actually issued a bench warrant. The lawyer was subsequently arrested and posted a $5000 cash bond.

The case eventually came on for a plea or trial, and the Lawyer pleaded No Contest to criminal damaging. He was found guilty of Criminal Damaging by the Judge and was given a 90 day suspended sentence with an order to pay $950 in restitution for the destroyed phone.

In Ohio, like anyplace else, a “No Contest” plea generally means that you are agreeing to the facts submitted by the prosecutor but you are admitting guilt. In this way, a “No Contest” plea generally cannot be used against you in a subsequent civil case.

…and THEN it got crazy…

I was initially called by the cyclist shortly after the incident occurred. Thankfully, the cyclist was not seriously injured in the crash. He did not wish to pursue a civil claim. However, in the course of investigating the case I was asked to represent the E/R Doc who had stopped, shot the video and been attacked by the motorist.

We tried at length to engage the lawyer in some pre-litigation discussions, to no avail.  A lawsuit against the motorist within the one year statute of limitations for intentional torts. We alleged both intentional and negligent misconduct and sought compensatory and punitive damages. We sued both the Lawyer and his law firm under the theory that he was on “law firm business” at the time of the incident and that the employer/law firm was liable for the negligence of its employee while the employee was on the clock.

…and THEN it got crazy…

The Lawyer filed a “pro se” response to the civil case  – i.e., he entered an appearance in the lawsuit as trial counsel for both himself personally and the law firm.

The typical response to a new lawsuit under Ohio’s civil procedure rules is an “Answer” which generally denies the claims and raises defenses. Here, the lawyer filed an Answer, denying the claims and raising defenses… but… he also filed a Counterclaim against the E/R Doc… three counterclaims in fact

– Count I – Assault.
Count II-Making False Statements to Police.
Count III- PERJURY!

He also claimed the the pleading we filed was “frivolous.” Filing a frivolous pleading in Ohio carries potential penalties for the lawyer, so he was, in essence, attacking my actions as well as claiming the Doc had created false testimony, somehow “doctored” the video to make him look bad and lied to the police and the court.

This did not go over well, as you might imagine.

WHAT DOES YOUR HOMEOWNER’S INSURANCE HAVE TO DO WITH THIS?

This counterclaim required an aggressive defense as the Lawyer was claiming, in essence, that the physician had committed several crimes.  I filed a response. However, because of the nature of the counterclaims, we put the doc’s  HOMEOWNER’s insurer on notice of the claims raised in the counterclaim.

Many folks are not aware that, typically, claims along the lines of “defamation” or “slander” are covered by homeowners insurance. I made the argument to the Doc’s insurer that the rather unique claims raised by the Lawyer fell into such a category. The insurer agreed to provide a defense to the lawsuit, which meant engaging one of their in-house trial counsel. This was a huge help because the insurance company would help cover the costs of depositions, experts and such while also providing me another good pair of OBJECTIVE eyes to review the case. The insurer used its local in-house counsel, a trial lawyer with whom I had developed a good rapport from previous cases.

The insurance lawyer and I kicked around a strategy and decided that taking the Lawyer’s deposition would likely get better results than the standard practice of sending out interrogatories – written questions for the other side to answer under oath. Given the tactics used by the Motorist/Lawyer so far, we felt that interrogatories could easily be ignored or objected to or fought over for months. We felt that a deposition would push the case along quicker towards a boiling point.

…and THEN it got crazy…

We “noticed” the deposition of the Lawyer… that is we filed a “Notice of Deposition” advising the Court and all parties that we would take the deposition of the Lawyer on a particular date at a particular place. Under the Ohio procedural rules a “Notice of Deposition” of a  party has the same force and effect as a subpoena… the party is required to attend. If the party objects, or does not wish to attend for some reason, the burden is on the party to take some action with the court- typically filing a Motion for a Protective Order.  Typically, collegial attorneys discuss dates and pick dates/times that are convenient to counsel and the parties. The “Notice” becomes more of a confirmation of our discussions. Here, though, we decided we were not going to get much cooperation so we simply  “served” the notice on the Lawyer via the mail and email. When we filed the Notice with the Clerk of Courts it was also served on all parties via the Clerk’s email system.

The Depo Day arrived and the insurance lawyer and I huddled in a small conference room in his Columbus office waiting for the Lawyer to arrive. He didn’t show up. We called his office several times. As we were preparing to depart he finally called in to say he that he did not know about the deposition and had not received the Notice. He claimed he was in the area however and would come in to talk.

He came in a few minutes later, refused to testify or go “on the record” with the court reporter and then tried to talk about settling the case while belittling our efforts and the claims raised. We told him we needed to get his deposition and he just walked out of the room without testifying.

… and THEN… it got crazy…

As the civil case was proceeding we learned that the matter had been referred to the bar association for an investigation. Eventually, the bar filed a complaint the Lawyer alleging multiple counts of violating the ethics rules for lawyers. The lawyers for the bar reached to us about the civil case, the claims the Lawyer had made against the Doc and the evidence we were presenting and pursuing. We provided the video snippet, the phone, adn other evidence we had developed and witnesses we had interviewed.

… and THEN… it got crazy…

As part of our due diligence we checked into whether other litigation was pending against the lawyer. Indeed, a couple of cases, including a malpractice case. In both cases the Lawyer was accused of thwarting discovery efforts. Motions were filed and orders were issued requiring the lawyer to follow the rules. In our case the same thing was happening…

… and THEN… it got crazy…

FINALLY, after all the Lawyer was required to attend a Pre-Trial Conference he agreed to submit the claim against him to his insurer. Eventually, insurance counsel was appointed. Discussions were had and a settlement was reached

… and THEN… it got crazy…

The ethics complaint did not go away as easily. A deposition was finally taken. A hearing was had. The witnesses testified. The evidence was considered. And a variety of violations of the rules governing the professional conduct for lawyers.

The Lawyer appealed to the Ohio Supreme Court and the Court recently issued the final ruling, upholding the findings and ordering the Lawyer to be suspended from the practice of law for six months.

The Board evaluating the ethics violations and found:

“… that by destroying Bahling’s cell phone and rendering any additional video recordings unrecoverable, Okuley violated Prof.Cond.R. 3.4(a) (prohibiting a lawyer from unlawfully altering, destroying, or concealing material having potential evidentiary value) and that by providing false information to the police, the prosecutor, and the court, Okuley violated Prof.Cond.R. 8.4(c) (prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation). In addition, the board found that by leaving the courthouse on the date of his criminal trial, Okuley violated Prof.Cond.R. 3.4(c) (prohibiting a lawyer from knowingly disobeying an obligation under the rules of a tribunal) and 8.4(d) (prohibiting a lawyer from engaging in conduct that is prejudicial to the administration of justice). And by deliberately causing Hansen to collide with his car, provoking the physical confrontation with Bahling in an attempt to seize his cell phone, deliberately crushing the cell phone, and providing false and misleading statements about the incident, the board determined that Okuley violated Prof.Cond.R. 8.4(h) (prohibiting a lawyer from engaging in conduct that adversely reflects on the lawyer’s fitness to practice law). See Disciplinary Counsel v. Bricker, 137 Ohio St.3d 35, 2013-Ohio-3998, 997 N.E.2d 500, ¶ 21.”

The Supreme Court agreed and upheld all of these findings.

The Court also considered ethical issues arising out of the lawyer’s response to our lawsuit including false claims that the E/R doc injured the lawyer, that the Lawyer had never stepped on the phone, and that the E/R doc had committed “perjury” by telling the police what had happened.

The Board evaluated the claims of ethics violations and found:

“…that the above-quoted allegations in Okuley’s answer and counterclaim were untruthful and that therefore by making these false assertions, Okuley violated Prof.Cond.R. 3.1 (prohibiting a lawyer from bringing or defending a proceeding, or asserting or controverting an issue in a proceeding, that is unsupported by law or fact), 3.3(a)(1) (prohibiting a lawyer from knowingly making a false statement of fact or law to a tribunal), and 8.4(c)…”

The Supreme Court agreed with these findings of misconduct.

The Supreme Court sanctioned the lawyer- ordering a 1 year suspension with 6 months suspended pending good conduct. This was a reduction from the 2 year suspension recommended by the Board but the Court felt the 1 year suspension was more in line with prior cases…

What a thing… a simple traffic incident leads to a Road Rage encounter that results in a civil lawsuit, a criminal case, a criminal misdemeanor record and the loss of one’s ability to practice law…

Let’s Be Careful Out There!

Printed from: https://www.ohiobikelawyer.com/uncategorized/2018/10/road-rage-personal-professional-consequences/ .
© 2018.

Leave a Comment