Former Cuyahoga County Common Pleas Judge Disbarred

The Ohio Supreme Court today disbarred former Cuyahoga County Common Pleas Court Judge Steven J. Terry, who was convicted in federal court of providing judicial favors in exchange for contributions to his 2008 election campaign.

Terry was appointed to fill a vacancy on the court in 2007, and in 2011, was convicted of one count of conspiracy to commit mail fraud and two counts of honest-services mail fraud in connection with his judicial duties. In a majority per curiam opinion, the Supreme Court adopted the recommendation of the Court’s Board of Professional Conduct to disbar Terry, who had argued an indefinite suspension was a more appropriate sanction.

Terry Connected to County Auditor, Commissioner Scandal

Terry’s federal conviction was related to his association with former Cuyahoga County Auditor Frank Russo, who along with former County Commissioner James Dimora, are servings federal prison sentences on numerous charges including trying to improperly influence county judges. In its complaint against Terry, the Ohio Disciplinary Counsel alleged he violated provisions of the Code of Judicial Conduct and the rules governing attorneys.

Terry inherited numerous pending court cases when he took the bench, including a foreclosure case involving American Home Bank, and a couple, Brian and Erin Lane. The bank sought $190,000 in damages from the Lanes, and the bank asked for summary judgment in March 2008. Joseph O’Malley, a friend of Russo, represented the Lanes. Russo sent a note to Terry directing him to deny the bank’s motion. Terry called Russo, who made substantial and continuous donations to Terry’s election campaign, and advised O’Malley that he had denied the motion. Terry did not disclose to the others involved in the case that he spoke to Russo and O’Malley. The bank agreed to settle the case with the Lanes for $27,000.

The federal charges against Terry stemmed from the favorable treatment to O’Malley in this case. He was sentenced in October 2011 to 63 months in prison, ordered to serve two years of supervised release, perform 250 hours of community service, and to pay $27,880 in restitution.

Court Found Conduct Warranted Disbarment

The Court agreed with the board’s finding that among the rules governing judges Terry violated several including failing to uphold the integrity and independence of the judiciary, requiring a judge to respect and comply with the law at all times, requiring a judge to disqualify himself or herself in a proceeding where the judge’s impartiality might be questioned, and requiring a judge to avoid impropriety and the appearance of impropriety.

When considering a sanction, the board compared Terry’s conduct to that of former judge Bridget McCafferty who was convicted on 10 counts of making false statements to the FBI about her involvement with Russo and Dimora. A board panel noted that Terry acknowledged the severity of his violations in contrast to McCafferty, who insisted she told the truth during her prosecution despite audio recordings that proved otherwise. The panel recommended Terry receive the same punishment as McCafferty, an indefinite suspension.

Noting the sentencing judge in Terry’s case found he lied during his trial, the board did not accept the panel’s recommendation and instead recommended the Court disbar Terry.

“Because his misconduct occurred in the performance of his core judicial duties, we find that it is substantially more egregious than McCafferty’s misconduct,” the Court stated.

Chief Justice Maureen O’Connor, Justices Paul E. Pfeifer, Judith Ann Lanzinger, Sharon L. Kennedy, and Judith L. French agreed with the majority opinion.

Justice Lanzinger also concurred separately with the majority with Chief Justice O’Connor and Justice French joining the concurring opinion.

Justice Terrence O’Donnell concurred in judgment only.

Dissenting Judge Would Have Indefinitely Suspended Terry

In a dissenting opinion, Justice William M. O’Neill wrote the majority gave Terry “the functional equivalent of the death penalty for a lawyer,” and that while he does not condone the acts of Terry or McCafferty, they should both suffer the same consequences.

He noted McCafferty repeatedly lied to FBI agents in a “justice-for-sale” scheme while Terry was caught perjuring himself in court about his involvement in a justice-for-sale scheme with the same parties. He questioned why the penalty is less severe for lying to federal agents than lying under oath in court.

Justice O’Neill wrote that Terry is paying for the mistake he made, and he sees no reason to deny Terry a chance to be reinstated to the practice of law in Ohio.

“For all practical purposes, it will be another five years before Terry could even consider applying for reinstatement. He would then have the formidable task of convincing the majority of this court at that time that he has changed his life and has something positive to offer the people of this state,” he concluded.

2014-2157. Disciplinary Counsel v. Terry, Slip Opinion No. 2016-Ohio-563.

View oral argument video of this case.

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