Court mulls fired lawyer's suit against judge

 Attorney accuses judge of violating his freedom of speech

By Amanda Lee Myers
Associated Press

CINCINNATI (AP) — A federal appeals court is considering whether a judge should be immune from a lawsuit filed by an attorney who ended up getting fired after the judge kicked him off all the cases in his courtroom.

A three-judge panel of the 6th U.S. Circuit Court of Appeals in Cincinnati recently heard arguments in the case involving Judge David Dean Evans in Gallia County, just across the West Virginia line in southeastern Ohio’s Appalachian country.

Attorney Robert Bright filed a federal civil rights lawsuit against Evans, the county, its board of commissioners and its public defender’s office in November 2012, accusing them of violating his constitutional rights to freedom of speech and due process. The public defender’s office fired Bright in September 2011 after Evans removed him from all the 60-some cases pending in his courtroom because of “the conflict he created with the court.”

The judge cited a lengthy motion from Bright criticizing some of Evans’ courtroom practices, such as setting strict deadlines for entering plea agreements. Bright’s criticism came after the judge twice refused to accept a plea agreement involving a defendant who had waffled in court before finally saying he wanted to plead guilty to burglary and drug trafficking at a hearing on July 25, 2011.

Bright then filed his motion trying to get the plea accepted, saying that refusing to do so would force a trial that no one wanted, thereby wasting county taxpayer money and the time of everyone involved, including 21 witnesses and a jury. He wrote that the judge’s “attitude is unreasonable and-or arbitrary and-or unconscionable.”

In response, Evans — the only judge in Gallia County — ordered Bright removed from that case and 63 other pending cases, saying the attorney’s attitude compromised the judge’s ability to be fair and impartial toward him.

One month later, Bright was fired by his employer, the Gallia County Criminal Defense Corp., a county entity that defends indigent clients.

“The actions of defendants in taking away Mr. Bright’s livelihood were irrational and wholly arbitrary,” according to Bright’s lawsuit.

The Ohio Supreme Court found “serious ethical questions” with Evans’ treatment of Bright and said that instead of removing the attorney from the cases, Evans should have recused himself. The court gave Evans a one-year suspension, stayed on condition he commit no misconduct.

Justice Paul Pfeifer disagreed with the suspension order that was supported by five of the seven justices, noting that Evans’ recusal from the cases with Bright would have required assigning visiting judges.

“It is more sensible for the attorney to give way than the judge,” Pfeifer wrote in a dissent. “Surely, when an irreconcilable conflict prevents them from working on cases, the elected judge should supersede the at-will employee.”

The 6th Circuit must now decide whether Bright can pursue his lawsuit against Evans and the county entities.

Evans’ Cincinnati attorney, Linda Woeber, said in a statement that her client “is immune from liability for any judicial act taken that is within his general jurisdiction.”

“Judges must be able to perform their duties without thinking about whether a litigant, attorney, or anyone else is going to sue them for money damages because of the way they decided an issue or a case,” she said.

Cincinnati civil rights attorney Al Gerhardstein, who represents Bright, said Evans acted improperly when he removed Bright from all the cases. Gerhardstein said the county entities also should not be immune from the lawsuit because they took no action to defend Bright.

“They shoved him off a cliff,” he said. “If you’ve got a judge acting unreasonably and you’re a paid salaried lawyer working for that judge and you try to stand up to him and your boss fires you, that means lawyers cannot be the zealous advocates they’re supposed to be.”

Dan Downey, the Columbus attorney who represents the county entities, did not return requests for comment.

The 6th Circuit could issue a ruling at any time.