Buckeye State Blog - The Smearing of Subodh - Comments

Thanks.

Muffet — Wed, 05 Apr 2006 10:18:18 -0700

I didn't read the cases. Not enough time. People just kept saying "without prejudice" like it was some big deal. It's not really. We've all done it a few times. If it's on the merits, the only thing that can be done is to appeal. Your explanation is very good.

seems to me

staff — Wed, 05 Apr 2006 06:56:51 -0700

that Dann has created a mess that isnt easy to clear up for what shuold have been a simple case - and not for the first time, however you look atthe law - not the kind of guy we might want representing the state in very complex cases. I dont want his potential 3rd strike to affect millions of people and not just 1. ps. if Dann talked to the judge there is conflict because Dann passed the job off to his employee which isnt allowed, that is the same as if he had taken the job himself. anyhow - all pretty irrelevant considering it will be given to the masses in a 30 second montgomery ad and that will be the end of that.

A Good Defense

Ohio2nd — Wed, 05 Apr 2006 06:22:37 -0700

We are all speaking out of ignorance. I think that more research is needed of the evidence at hand and that it then needs to be reviewed by experts in the field. We will not uncover the truth through anonymous I don't thinks.

We need to hurry because soon it will be handed over to the other side and we know that they will be using it to do the maximum damage, and trust me when I say that your very articulate defense will be useless in the court of public opinion.

I think you assume too much

modernesquire — Wed, 05 Apr 2006 05:55:06 -0700

Let's face it. The news article is inartful and rather unclear. I simply can't believe that Dann would talk to the judge about this case unless Phillips was already a client. Why would Dann even know about the case? It just doesn't make sense to suggest otherwise.

As I've already said, just because the fraud claim is new doesn't mean that it isn't subject to a dismissal with prejudice by the federal court under issue preclusion. Same thing with negligent supervision.

You keep saying that Dann's firm had plea bargain a client to four months in jail for a crime not on the books. That statement is false. Dann's firm had him plea to a charge that was a constitutional criminal statute at the time he pled. The problem is that Dann's firm advised him to do so because of the possibility that he could otherwise be found in violation of his probation from when Phillips, without the advise or counsel of legal counsel, pled to an earlier criminal complaint based on a criminal statute the Ohio Supreme Court recently found to be unconstitutional. There is a rather significant distinction between the two.

In fact the negligent supervision claim sounds more like a disciplinary complaint than a civil suit. Second, we're assuming Dann had an ex parte conversation with the judge. For all I know, it could have be a pre-trial hearing in chambers. I haven't seen the prosecutor assert that there was an ex parte conversation, and they'd be the party mostly likely harmed by such a conversation.

If there was an ex parte conversation between Dann and the judge, then why hasn't a disciplinary complaint been filed against the judge as well?

Assuming for the moment that Dann, having no reason to know of Phillips case, nor any interest as an attorney in it, did talk to the judge about Phillips case. There's no conflict. From the context of the article, it appears that Dann's conversation with the judge was not one that prejudiced Phillips. It seems from the face of the article that all the conversation was about is what the judge was likely to do as sentencing in the case. A rather common conversation betwee judges and defense attorneys and not the kind of conversation that disqualified an attorney, or his or her firm, from continuing to represent the person.

What I have been tireless trying to tell you is that there is a story there, but don't make it out to be more than what it is (which you have been doing) because the story loses credibility when you do.

scratch that...

bryan — Tue, 04 Apr 2006 19:45:57 -0700

poor, poor raty.

no

staff — Tue, 04 Apr 2006 19:07:07 -0700

difference here. there is a difference between making shit up and attacking someone with false allegations and simply getting pissy and saying go fuck yourself - ratdg has a history of this and this was hist last warning. I try to be fair and keep the forum for dialouge open to just about everything, and sometimes i do need to heed my own advice - this isnt one of those times in my mind though.

Crossing a line.

Mr. Common Sense — Tue, 04 Apr 2006 17:38:06 -0700

Hey, Staff:

"Dude, your crossing a line here. Won't be a second warning. People can disagree without being disagreeable."

Follow your own advice. Agree without being disagreeable. Otherwise, continue being a hypocrite.

Why is it...

AmberCat — Tue, 04 Apr 2006 17:08:09 -0700

...that the most active threads are the ones where people start insulting each other? Tim Keeps condescending to me, claiming I don't know what I am talking about, when I specifically am addressing exactly what I know and have seen and hear. Meanwhile, staff is going all Cheney on the trolls. Sheesh. I think I'll go have dinner and email all the friends who have written to me expressing pleasure in Tom DeLay's unjust (he claims) downfall!!!!

ok ,so explain this to me

staff — Tue, 04 Apr 2006 14:37:53 -0700

How can Dann have an ex parte conversation with the judge in this case, then knowing he cannot take Philips on as a client hand him off to his employee - which amounts to taking the case himself - without being liable. His referal to his employee was improper because of this ex parte conversation. The dismissal of the federal case because Dann wasn't his direct attorney doesnt release Dann from his obligations to supervise his employees nor hand off referrals when there has been ex parte conversations. I am not aware that Philips made a fraud claim against Dann in the federal filing, I think this is a new claim. Also how can his firm avoid liability for plea bargaining a client to 4 months in jail for a crime not on the books ? That really is the essence of what we have here. There are numerous ethical issues involved here - the judge is in some pretty hot water for slander too....

Difference between dismissals

modernesquire — Tue, 04 Apr 2006 14:21:39 -0700

A dismissal without prejudice is normally for jurisdictional or other non-substantive defects in a claim. Ohio Civ. R. 41(A) does not apply because: 1) the first case was a federal case dismissed under the Federal Rules of Civil Procedure; and 2) because the dismissal was not voluntary.

The dismissal was involuntary. The issue is whether the Dann claim in particular was dismissed with or without prejudice. A claim dismissed with prejudice cannot be raised in a later case as its a ruling on the claim's merits. Just because some of the claims were dismissed without prejudice does not mean all the claims were. The fact that the article states that the claims against Dann were being dismissed because there was never an attorney-client relationship with Phillips indicates it was a dismissal on the merits. Therefore, it was likely a dismissal with prejudice.

The fact that Phillips' attorney has refiled a new fraud claim in State court does not indicate, in any way, that Dann's claims were not dismissed with prejudice. In fact, the fact that Phillips' attorney is raising a new claim against Dann instead of the cause of action in the federal suit indicates that claims against Dann were dismissed with prejudice.

However, even the new claims against Dann are likely to be dismissed under Ohio Civ. R. 12(b)(6) under issue preclusion and res judicata. Because Phillips could have raised his fraud claim against Dann in the federal suit, which was likely dismissed with prejudice, then he is probably barred from raising them in a new state suit as they are essentially about the same events, parties, relevant evidence, and occurances.

Based on this, I seriously doubt Dann will be found civilly liable. Phillips is not barred from the federal suit from filing a disciplinary complaint against Dann with the Ohio Supreme Court, but since there was no attorney-client relationship, I have little confidence they will make a public discipline finding against Dann, either.

Go fuck yourself Rat

staff — Tue, 04 Apr 2006 13:55:15 -0700

I am just about sick of your pathetic attempts of attacking the messenger. Reporting what is already reported and a matter of public record is not smearing anyone you fucking idiot. and how about putting the full quote out there

Phillips

No

staff — Tue, 04 Apr 2006 13:52:20 -0700

I am told it was dismissed without predjudice - which is a conclusion you have to come to given that his client has in fact refilled against Dann and a whole bunch of other people. from the article

Phillips

If a party to a cause of action,

Muffet — Tue, 04 Apr 2006 13:51:21 -0700

dismisses a case without prejudice, the case can be re-filed within one year of the date of dismissal. (Ohio Rule of Civil Procedure 41)A).

If a judge dismisses a case, that's it, unless it is appealed to a court of appeals.

Really?

ratdg1 — Tue, 04 Apr 2006 13:44:58 -0700

Cause that isn't what it says in the article. It says, and I quote:

The federal court also dismissed a malpractice complaint against Dann, saying that he didn’t represent Phillips.

It doesn't say dismissed without prejudice, it says dismissed cause he's the wrong person to be complaining about. But the facts don't matter when you're smearing a guy, do they?

Wait again... Dann's case WAS DISMISSED FOR PREJUDICE

modernesquire — Tue, 04 Apr 2006 13:44:21 -0700

I already cross-posted this at Plunderbund's blog:

Here’s what the article says:

“Boyko dismissed Dann, saying that there was no attorney-client relationship. Dann, also an attorney, employs and supervises Joltin, who represented Phillips. The malpractice claim against Joltin will go forward in state court.”

While some of the charges were no doubt dismissed without prejudice, the articles DO NOT say that the case against Dann was dismissed without prejudice. In fact, because the article specifically states that Dann was dismissed because there was never an attorney-client relationship is a ruling on the merits. Therefore, Dann’s dismissal was most likely WITH PREJUDICE. As such, any state claim against Dann would be barred by res judicata and claim and issue preclusion.

Given the lack of an attorney-client privilege, the likelihood that Dann will face discipline from the Ohio Supreme Court in this matter (which is the only possible state forum that could still hear any claim against Dann in this matter) is very slim.

Having a non-lawyer state, without any authority or qualifying support, that Dann “faces a very real danger of having his license suspended” is reckless based on these facts.

_____________________________________________

It sounds like the only case remains against Dann is the one recently filed with the Ohio Supreme Court's Board on Attorney Grievances and Discipline. Based on the language of the articles, it sounds like only an attorney grievance claim could be filed against Dann as any other state claim is barred from the federal dismissal.

The Smearing of Subodh

staff — Tue, 04 Apr 2006 07:14:38 -0700

I knew a time would come in the AG race when I would have to write this. The rumblings under the surface were always going to boil over, and in the last few days they did. First in a Vindy piece and then in the comments here at BSB. It's time we addressed a few issues that have gone largely unspoken.

Let us address the simple smear first as it is seen in the comments here.

Tim, you