Communications Office - 2006 Oral Argument SummariesTuesday, Aug. 8, 2006 State v. Elmore, Case no. 2004-0041 Disciplinary Counsel v. Agopian, Case no. 2006-0779 Ohio State Bar Assn. v. Burdzinski, Brinkman, Czarzasty & Landwehr, Inc., Case no. 2006-0839 Death Penalty State v. Elmore, Case no. 2004-0041 Phillip E. Elmore of Newark appeals his convictions and death sentence for the kidnapping, aggravated robbery and aggravated murder of his former girlfriend, Pamela Annarino, in June 2002. According to taped statements given by Elmore to police, he admitted breaking into Annarino's home while she was attending her son's wedding and confronting her with a shotgun when she returned home. Elmore told officers that he tied Annarino's hands and feet and partially strangled her with his hands and a pair of stretch pants that were found knotted around her throat, but intended to leave her alive until she “flared off” on him verbally, at which point he found a length of lead pipe and bludgeoned her to death with several blows to the head. Family members found Annarino's body several days later. A neighbor who knew Elmore told police she saw him leave the victim's house on the afternoon of the wedding and drive off in Annarino's gold Toyota Camry, which remained missing. A statewide alert was broadcast for the vehicle. Police in Columbus spotted the car and placed Elmore in custody. When Newark officers came to question him about the Annarino killing, Elmore admitted his guilt and later gave two recorded statements providing details of the crime that were replayed for jurors during his trial. Following a jury trial at which Elmore's attorneys made an unsuccessful motion for a directed verdict of acquittal at the close of the state's case but called no defense witnesses, the jury found Elmore guilty on all charges, including the death penalty specifications that he had killed Annarino during the commission of the felony offenses of kidnapping, aggravated robbery and aggravated burglary. In his appeal to the Supreme Court, Elmore's attorneys have advanced 17 allegations of legal and procedural error by the trial court as grounds to overturn his convictions or reduce his sentence. Among these are claims that:
The state responds that there is no case law holding that a no-smoking policy during jury deliberations deprives a defendant of a fair trial, and that even if such a claim could be asserted, Elmore's trial counsel were consulted before the judge denied jurors smoking breaks in this case and consented to the ban, thereby waiving any future assignment of error arising from that action.
The state responds that Elmore admitted confronting the victim with a shotgun when she entered the house, binding her hands and feet and tying a pair of stretch pants around her neck. They argue that these acts were undertaken to prevent Annarino from fleeing or calling police, and/or to facilitate Elmore moving her from one part of the house to another against her will – which would constitute kidnapping regardless whether or not the victim was later killed.
The state counters that the trial judge properly refused to give a jury instruction on voluntary manslaughter based on his determination that any alleged verbal outburst by the victim was a reasonable reaction to being confronted and tied up by an armed intruder in her home. Contacts W. Joseph Edwards, 614.228.0523, for Phillip Elmore. Attorney Discipline Disciplinary Counsel v. Agopian, Case no. 2006-0779 The Board of Commissioners on Grievances & Discipline has recommended that Cleveland attorney Richard V. Agopian receive a one-year license suspension, with the entire period of suspension stayed on conditions, for filing inaccurate and misleading billing records with the Cuyahoga County Court of Common Pleas for his services as appointed counsel for indigent criminal defendants. Agopian has entered into stipulations concurring with the board's description of his actions, but asks the Court to overrule the board's conclusion that his conduct violated state attorney discipline rules. The parties stipulated that most of Agopian's practice consists of representing indigent defendants as court-appointed counsel, for which he is authorized to bill the common pleas court at the rate of $50 per hour for in-court services and $40 per hour of out-of-court services. The stipulations also noted that, during a typical work day, Agopian or a lawyer under his supervision would appear in court, prepare and file motions, make phone calls and provide other out-of-court services on behalf of multiple clients, and generally kept track of hours worked and the work performed only by way of brief hand-written notations on client case files or personal calendar entries. In support of his motions to the court for payment, Agopian acknowledged that he sometimes filed generic or “form” descriptions of the services he typically rendered to indigent clients, and sometimes “lumped together” on a single day's time sheet work he had performed for the same client on different days. The board found that on three occasions Agopian had submitted time records certifying that he had worked more than 24 hours on a single day, and on 11 other occasions had claimed to have earned fees for between 18 and 20 hours of legal services in the same day. While concluding that Agopian had not intended to deceive the court or collect fees for legal work he did not do, the board nevertheless found that his knowing submission of inaccurate and misleading billing statements that did not comply with local court rules violated the state disciplinary rules that prohibit conduct involving fraud, deceit, dishonesty or misrepresentation, and conduct that adversely reflects on an attorney's fitness to practice. Attorneys for Agopian ask the Court to reject the board's conclusion that he engaged in fraudulent or dishonest conduct. They point to dozens of letters submitted by Cleveland attorneys, judges and former clients attesting to Agopian's professionalism and good character, and assert that any inaccuracies in his day-to-day billing statements was an unintentional result of sloppy bookkeeping. They emphasize specific findings by the board that Agopian not only didn't bill for services he hadn't performed, but had apparently provided more hours of service to indigent clients than he ever billed to the court. Contacts Christopher J. Weber, 614.462.5400, for Richard Van Agopian. Unauthorized Practice of LawOhio State Bar Assn. v. Burdzinski, Brinkman, Czarzasty & Landwehr, Inc., Case no. 2006-0839 ISSUE: Do labor relations consultants who are not attorneys engage in the unauthorized practice of law when they:
BACKGROUND: Based on a complaint filed and prosecuted by the Ohio State Bar Association (OSBA), the Supreme Court's Board on the Unauthorized Practice of Law has found that the Cleveland-based labor relations consulting firm of Burdzinski, Brinkman, Czarzasty & Landwehr, Inc. has engaged in the unauthorized practice of law in the course of providing professional services to third-party corporate clients. The board asks the Court to rule that the firm and its principals, Bernard F. Burdzinski II and his wife, Connie S. Brinkman-Burdzinski, have violated the state bar governance rule that permits only licensed attorneys admitted to practice in Ohio to engage in the practice of law. The Board recommends that the Court order the firm and its principals to cease from any future acts of unauthorized practice. While the Court's rules authorize the imposition of civil fines against those who engage in the unauthorized practice of law, and the OSBA has proposed such a fine in this case, the board has recommended no economic sanction. The Burdzinskis have filed objections to the board's findings and recommendation. They argue that the legal “advice” they share with clients for responding to union elections initiatives is taken from pamphlets and bulletins made available to the general public by the National Labor Relations Board (NLRB). With regard to their involvement in settling disputed union election issues and representing client companies in the negotiation and drafting of collective bargaining agreements, they assert that non-attorneys are permitted to engage in these activities in practice before the NLRB, and argue that federal regulations pre-empt (take precedence over) Ohio's unauthorized practice rules. The OSBA has filed its own objections to the board's findings and recommendations. The association's attorneys urge the Court to find an additional count of unauthorized practice that was rejected by the board, and to impose a civil fine in the case even though that sanction was not recommended by the board. In response to the Burdzinskis' objections, the OSBA points to prior Supreme Court decisions holding that negotiating and drafting collective bargaining agreements on behalf of a third party constitutes the practice of law. They also argue that the Ohio rules defining and regulating the practice of law advance a significant state interest and are not in conflict with any core purpose of the National Labor Relations Act, and therefore are not preempted by federal guidelines. Contacts Thomas P. Whelley II, 937.463.4931, for Bernard Burdzinski et al. These summaries are prepared by the Office of Public Information solely to help news reporters determine if they want to cover the arguments. The summaries are not part of the case record and are not considered by the Court at any point during its deliberations. Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record. |