The following is an opinion piece published in the Cleveland Metropolitan Bar Journal in June 2021.

The more laws and restrictions there are,
The poorer people become.
The sharper men’s weapons,
The more trouble in the land.
The more ingenious and clever men are,
The more strange things happen.
The more rules and regulations,
The more thieves and robbers.
Tao Te Ching – Lao Tzu – chapter 57

The Ohio Rules of Professional Conduct and their comments cover 192 pages. They are well thought out and meticulously worded. They cover both obligatory and discretionary conduct. They were designed to provide guidance to lawyers and a structure for regulating conduct through disciplinary agencies.

They deserve study, but they are ponderous. What if lawyers —what if everyone — based their ethics upon a clear and concise foundation?

WHAT IF THE CORNERSTONES OF THAT FOUNDATION WERE INTEGRITY, HONESTY, DECENCY, AND COURAGE?

No doubt — you were quick to realize I did not make that up. They were the core principles of W.E.B. Du Bois — altered a bit by Cornell West. They answer the question: “How does a movement stand up to oppression?”

These principles provide cornerstones for ethical behavior. They fit our lives. They fit our practice. Loosely said — but true — if you rely on the principles, you are safe with the rules.

Integrity

My ethics professor (and, no doubt, many of yours) was Robert P. Lawry, Professor Emeritus of Law at Case. He introduced us to the “professional effort.” You do the work. You solve the problem so completely that not a trace is left. So many of our practice problems come from not having done what we said we were going to do of what needed to be done — from not returning phone calls to selling cases and clients short. Do the work and the problems never materialize.

Honesty

One of my best friends (not a lawyer) called me to ask how I would defend the policeman in the George Floyd trial. “How would you obfuscate to get him off?” He was proud of the word (obfuscate), and I was insulted. But that is where we are. We live in a country of “alternative facts.” In the common parlance, “lawyer” means “liar.” The profession cannot abide that definition. But we can only alter perception with a prolonged reality.

But more immediately, within our practice, with clients, and with courts and opponents, honesty is imperative.

Decency

Empathy. The Golden Rule. Actions for the right reasons. Taking the time to understand our clients — their strengths and vulnerabilities. We are a service profession of the highest order.

Courage

This is the hard one. So let me steal another thought — this one from Robert Kennedy: “Each time a man stands up for an ideal, or acts to improve the lot of others, or strikes out against injustice, he sends forth a tiny ripple of hope, and crossing each other from a million different centers of energy and daring, those ripples build a current that can sweep down the mightiest walls of oppression and resistance.”

We do not need, any one of us, to be a crusading lawyer — winning big cases and changing the world. Each of us does, however, need to do what is right. We don’t make decisions based upon personal benefit. Sometimes we actually must make decisions that are not in our personal interest. We need to fearlessly ask questions of Judges and Opponents and Clients. We need to disagree, civilly and when necessary, with the same Judges and Opponents and Clients.

WHAT’S YOUR POINT, JAY? WE ALL KNOW THAT.

Yes, we do. We know that Integrity, Honesty, Decency and Courage are, at least, a major part of our ethical baseline. However –

1. Tied together they are also the basis for our credibility. Those attributes are recognized both in their actions and in their absence. Nothing is more important to today’s and tomorrow’s client than their lawyer’s credibility, nor more damaging in its absence.
2. A few, but too many of us, have only one client — ourselves. Those lawyers make their decisions more often than acceptable with their own interests — money, power, acclaim — first in mind.
3. But far outweighing the negative is the purity of being a good lawyer. We all know them. They walk in the room and Judges and Juries and Opponents and Clients immediately respect them for who they are and what they have done.

So here is what I have learned this year. The CMBA is, in its vast majority, made up of good lawyers, working toward being being great lawyers, and doing great things for the legal community and the people we serve. Our Committee, Professionalism and Ethics, is made up of a group of “True Believers,” trying to practice and teach what we all preach.

It has been my honor. Thanks for having me.

Many thanks to bar counsel, Heather Zirke, my consigliere. To be truthful — I was her consigliere.

Jay Milano is the outgoing Chair of the Ethics and Professionalism Committee. He teaches Ethics and Law to Journalism Students at Ohio State (6 years) and Trial Tactics to Law Students at Case Western Reserve School of Law (27 years). Milano, Attorneys at Law focuses on complex litigation, Civil and Criminal, for individuals and closely held companies. He has been a member of the CMBA since 1982.

The following is an opinion piece published in the Cleveland Metropolitan Bar Journal in January 2022.

… American Values, American Morals, American Ethics were based upon the core values of The Golden Rule, Do the Right Thing, and a Foundation of Integrity, Honesty, Decency and Courage.

… And those Core Values have devolved into: — What’s in it for me? What can I get away with? … Religion, despite its people with sincere beliefs, has been corrupted by power players, and grifters, and fear mongers. In turn, it has become intolerant of the poor and the merciful and the peacemakers.

… Wealth begat greed which begat the rich (The Top 1% of Americans have taken $50 trillion from the bottom 90% (Time 2020)) which begat narcissism and megalomania. The rich are willing to use a tiny portion of that wealth to pollute the information pool, and to turn the watchdogs into lapdogs.

… The media does play a vital role in our democracy, and if we cannot depend on Journalistic Ethics, the nations in trouble. (Dave Brat)

… American Newspaper Daily Circulations grew from 48 million in 1945 to 62 million in 1990 and then dropped to 24 million in 2020 (PEW). Fewer than 10 Companies now control 90% of media outlets — down from 50 companies in 1983 (Poynter). Media ethics departments in news agencies have all but disappeared.

… About two-thirds of U.S. adults say they get news from news websites or apps (68%) or search engines, like Google (65%). About half (53%) say they get news from social media, and a much smaller portion say they get news at least sometimes from podcasts (22%) (Pew 2021).

… Sinclair Broadcast Group, Inc. is a diversified media company and leading provider of local sports and news. The Company owns and/or operates 21 RSN brands; owns, operates and/ or provides services to 185 television stations in 86 markets; is a leading local news provider in the country; owns multiple national networks; and has TV stations affiliated with all the major broadcast networks. Sinclair’s content is delivered via multiple-platforms, including over-the-air, multi-channel video program distributors, and digital platforms. (Sinclair Website).

… Sinclair’s probably the most dangerous company most people have never heard of, said Michael Copps, the George W. Bush-appointed former chairman of Federal Communications Commission (FCC), the top US broadcast regulator (The Guardian).

… Sinclair, Fox, MSNBC and most other outlets have a point of view. They have a motive. Some are political. Some view you as Fish, to net and sell. (Click bait?) The circuitry activated when you connect online is the seeking circuitry of dopamine…We’re like the rat pressing the level over and over to get a little dopamine hit, forgetting all about food and rest. (Harvard Business Review). The camouflage with which the message is hidden is “false equivalency.” Both sides are equal — whether you are right or wrong is irrelevant. But that is not true. The politics of a decade ago is not the same as the first time in American history, that we did not have a peaceful transition of power.

… We have been separated into tribes. Sectarianism is a highly moralized political identity that views the other side as contemptible. The moral component is foundational. You can imagine that you are a member of a religious sect, and you very, very strongly believe that you possess the full moral truth and that the other people aren’t going to heaven or are evil. That is the tenor of the thinking that we see across the political divide these days. (Scientific American). Civilized discourse and confrontation have disappeared — replaced by hate speech. We spit at each other.

… It’s all a lie. And we have come to accept being lied to. Repeat a lie often enough and it becomes the truth. (BBC Future)

… It’s about racism-misogyny-homophobiafear and loathing of the other. That cannot be an overstatement if it becomes any part (even the tiniest part) of the “strategy.”

… We all get a trophy. No need to work hard, no need for excellence. Your opinion, your feelings are all you need. If you’re not getting what you want, you are aggrieved.

… They are the carnival barkers. We are the rubes. … We don’t need no stinking science, no stinking excellence, no stinking hard work, no stinking masks, no stinking planet…

… And finally — We don’t need no stinking ethics. Except in 1995 Carl Sagan PhD (Astronomy and Astrophysics) wrote:

“I have a foreboding of an America in my children’s or my grandchildren’s time — when the United States is a service and information economy; when nearly all the key manufacturing industries have slipped away to other countries; when awesome technological powers are in the hands of a very few, and no one representing the public interest can even grasp the issues; when the people have lost the ability to set their own agendas or knowledgeably question those in authority; when, clutching our crystals and nervously consulting our horoscopes, our critical faculties in decline, unable to distinguish between what feels good and what’s true, we slide, almost without noticing, back into superstition and darkness. The dumbing down of America is most evident in the slow decay of substantive content in the enormously influential media, the 30-second sound bites (now down to 10 seconds or less), lowest common denominator programming, credulous presentations on pseudoscience and superstition, but especially a kind of celebration of ignorance.”

What happens now…?

Jay Milano is a Past President, Current Chair Thought Leadership, and Past Chair Ethics Professionalism. He has been a member of the CMBA since 1982.

The following is an excerpt from an opinion piece published at cleveland.com on on January 31, 2016.

The “truthful plea agreements” editorial published on cleveland.com Jan. 11 highlighted a real problem in criminal justice.

How do you handle a case when both sides fear that they will lose? What if a defendant maintains his innocence, but faces a trial that may cost him his freedom — for life? What if a prosecutor has a credible accusation — but not enough evidence?

Over the years, judges and lawyers have invented a way to cope. They invented a fiction.

Continue reading at cleveland.com »

 — And the Beast Spit Him Out*

“I have committed a terrible crime.

I have paid a terrible price.”

John Snider, 71 years old, made that statement.

He stood, wearing an orange jumpsuit, before Judge Dick Ambrose. He hunched over a podium and leaned on his cane. He had been led out, in shackles, from the invisible door that hides in all Cuyahoga County Courtrooms.  It is part of a wood paneled wall that separates the absurdity of the courtroom from the insanity of jail. Pass through and you enter the belly of the beast- nothing but cinderblock and stainless steel and unbreakable glass doors. A black shirted deputy sheriff stood behind him. He was close enough to reach out, if need be. It was more likely John Snider would fall than run. He stood ready to be sentenced, for the third time.

John Snider pled guilty to distributing child pornography. Making money by assaulting children is unspeakable. Even trading the pictures with others is reprehensible. But John Snider did none of that. John Snider had never acted out in any way.

He looked at pictures on his computer. He got them from a sharing program, like LimeWire used to be. The sharing program allows others to look at your files. John Snider did not know he was sharing. In fact, no one but the police ever looked at his pictures. Police can send out a “ping” connected to the program and find a person who had downloaded pictures. The person does not ever have to leave his house, or buy a dirty book, or talk to anyone (even online). They just have to look at pictures.

(You have to be wondering why the sharing program, a multinational platform for passing smut, was not been indicted along with John. Me too.)

Based upon the ping, the police raided John Snider’s home. He was charged with distributing child pornography. “Distributing” – even though he only looked at the pictures.

Distribution, and the long prison terms it brings, should be reserved for people who sell videos or who run websites. It should fit those who actively share the filth. It was never meant for people who just looked at the pictures.

Court psychiatrists and private mental health professionals examined John Snider. No one believed he had any sexual interest in children. He was an obsessive/ compulsive collector of anything that caught his interest. He had seen a news report, downloaded a small number of pictures and that was it.  He did it, the Doctor said, as result of depression.

He had once been a valued executive, a senior insurance adjustor, until a back injury shortened his career and fed his depression. He was a family man, loved by his wife and children.  He had never acted out in any way and had never been in trouble.

His case was assigned to Judge Kathleen Sutula. That assignment is done in a public proceeding known as an arraignment. Other defendants and their lawyers are there. A gallows’ humor groan inevitably rises from the lawyers each time Judge Sutula’s name is called. She is considered, among other things, harsh.

I whispered to John Snider as we walked from the bench, “It will be OK”, more out of hope than optimism.

John Snider pled guilty, because he was guilty of possessing the pictures. He could be sentenced to probation, or prison time. No jail to years in the belly of the beast.

And here is the problem. You would think that similar people with similar crimes would get similar sentences. That is not the way it is. Sentences vary wildly depending upon the Judge.

At the sentencing, John Snider’s whole family was there: his wife, daughters and a son in law. Everyone knew the Judge had a reputation. We feared the hearing might be brutal.

Judge Sutula has added flowers and a nightstand light to her bench, presumably to soften the ambiance. The homey touch did not soften the dread of standing before her.

She had, once, given probation to a defendant in a case just like this. There must have been special circumstances, but she had done it before. The family believed (we all hoped) that John Snider: who had never been in any trouble, who was 69, and who no one thought was a danger, would avoid jail.

He did not. The Judge began a pointed lecture. The facts weren’t quite right and it seemed very personal. It ended with her sentencing him to 2 years on the 3 crimes. Hard, I thought as I sat there, but not outrageous. Then, in a tone I thought sounded more pointedly personal, she said that sentences would run consecutively. That means stacked one on the other. John Snider, at 69, would go to prison for 6 years.

With a broken back and a bad heart he was more likely than not to die in jail.

The deputies moved John Snider, quickly and silently, through the secret door. He did not have an opportunity to look back to his family. And in that instant, he was gone.

There was nothing in the Judge’s presentation that would have signaled consecutive sentences. Consecutive, one on top of another, is reserved for the worst criminals.

We appealed. It took a year. John Snider was in prison. The Appellate Court agreed with us. The sentence did not follow the law. The case was sent back for another sentencing. But the sentencing would be back in front of Judge Sutula again.

Just before the second sentencing I learned that a family member, the son-in-law, bragged that he had spoken to the Judge by phone before the first sentencing. He claimed he had given her an earful of what a terrible person John was. He had no evidence, but apparently harbored some grudge or insecurity. His father was a policeman, a boss in a suburb. The son in law was a policeman wannabe. He was flexing his muscles here. He could talk to the Judge privately- wield his policeman’s power in secret. And he was a coward. He had been at the sentencing, pretending to support the family.

A Judge cannot talk to anyone but the lawyers about the case and then only if both lawyers are present.  It is clear in the rules. If she does talk to anyone alone, she has to let the lawyers know. Either side has a right to deal with the consequences. It is called an ex-parte communication. Judge Sutula never let anyone know she had spoken to the son-in-law.

We believed she should be removed from the case. The procedure is to file an affidavit of disqualification to the Supreme Court. The Chief Justice decides the outcome.

We had information from the family members about what the son-in-law did. But, at this point, we had nothing from him.

We let the Judge know what we had learned. We asked her to remove herself. This time she was just plain angry. “In all of my years on the bench”, she said, “It has always been my policy to not talk to anyone”. She did not affirm or deny. She did not say anything meaningful. We filed what we had with the Supreme Court and laid out what we knew.

We do not know what communication took place between the Judge and The Supreme Court. Though we had to provide copies of our request to both the Judge and the Prosecutor, the Judge provided nothing to us.

Very quickly we received an order from the Court. The Judge had stated that she was not influenced. She said she did not recall a phone call. The Chief Justice wrote that it was only hearsay from the family, not the son-in-law himself. Request denied.

I do not claim what follows was intentional, or that the insult exists anywhere other than in my head. In the written order of the Supreme Court each time they referred to the Judge, it was “Judge Sutula”.  And each time they referred to me, it was “Milano.” “Milano claims…”- “Judge Sutula avers…”.

The sentencing was reset before Judge Sutula once again. Now we would face the scenario about which many of my colleagues had warned me. “You will only piss her off.”

We needed to attempt, again, to talk to the son-in-law. There was great concern over the family problems he had caused and now would cause. Nevertheless, we contacted him and he talked. Better said – he vomited out everything about his phone call with the Judge. None of what he had told her was true. He seemed to believe he was safe. He could say anything. John Snider was in jail.

We redid the motion for the Supreme Court with his affidavit attached and sent it in. The case was set for sentencing. Family, counselor and friends again appeared at the Courthouse ready for the worst.

Judge Sutula brought us into the Courtroom. This time she knew that there was evidence of the ex-parte discussion. She was about to sentence again, but decided that it might be better if she waited. To barrel ahead would look like she was out to get John Snider. Sentencing was postponed until the Supreme Court made another decision.

We waited.

Then, without warning, we got a phone call telling us that the case had be re-assigned to Judge Dick Ambrose.  Judge Sutula had voluntarily removed herself from the case. Shortly thereafter, we got an order from the Supreme Court telling us, in effect, that since the Judge had removed herself, they would go no further to investigate the Judge/son-in-law conversation.

And then came the third sentencing.

“Please Judge,” John Snider whispered as if he were ashamed and afraid his family would hear, “I cannot bear to wake up scared every morning. Scared that I will be stabbed. Scared that I will be beaten. Scared that I will be extorted. I have been in jail for 16 months. My wife and I have lost our home. She has been gravely ill, and I am sure the stress I caused her has worsened her illness.”

Judge Ambrose reduced the sentence from 6 years to time served, about a year and a half. That was punishment enough. He then ordered John Snider to be released to his family-under the strict supervision of county sheriff and the sex offender unit of the probation department.

John stood a moment, leaning on his cane, looking confused. Believing he was being released, he moved towards his wife. The deputy moved quickly. “Come with me,” back through the invisible door, back to jail. There was paperwork to do. You can’t leave jail until get the paperwork gets done.

John Snider had no street clothes. About 7 that evening the deputies gave him a jacket and some shoes to go with his jail orange coveralls.

And with that… the beast spit him out.

PS: There is an inscription above the Bench in the Court of Appeals. It says, “This is a government of law, not of men.” Do you believe that is true?

PPS: Judge Ambrose is Dick “Bam Bam” Ambrose of Cleveland Browns glory days. Lawyers suck up to Judges. Browns fans are hero worshipers. That is a lot of obsequiousness for one lawyer to bear.

* In the Belly of the Beast is a book by Norman Mailer and Jack Abbott. It detailed Mr. Abbott’s time in prison.