[Cite as In re Disqualification of Sheward, 134 Ohio St.3d 1226, 2012-Ohio-6289.] 

IN RE DISQUALIFICATION OF SHEWARD. 

LASALLE INSTITUTIONAL REALTY ADVISORS, L.L.C. ET AL. v. NANTUCKET ON 

MONTGOMERY ROAD, LTD. ET AL. 

[Cite as In re Disqualification of Sheward, 134 Ohio St.3d 1226, 

2012-Ohio-6289.] 

Affidavit of disqualification—R.C. 2701.03—Alleged improper ex parte 

communications—Conversation between judge and opposing counsel 

involved substantive matters relating to underlying case—Judge ordered 

disqualified. 

(No. 11-AP-132—Decided January 19, 2012.) 

ON AFFIDAVIT OF DISQUALIFICATION in Franklin County Court of Common Pleas, 

Case No. 11-CV-002074. 

__________________ 

O’CONNOR, C.J. 

{¶ 1} Brian D. Spitz, counsel for plaintiffs, has filed an affidavit with the 

clerk of this court under R.C. 2701.03 seeking to disqualify Judge Richard S. 

Sheward from acting on any further proceedings in case No. 11-CV-002074, now 

pending in the Court of Common Pleas of Franklin County. 

{¶ 2} Attorney Spitz alleges that Judge Sheward has engaged in an 

improper ex parte communication with opposing counsel. Spitz states that as a 

result, his clients no longer trust Judge Sheward to impartially adjudicate their 

case. Spitz does not question the veracity or character of Judge Sheward, but he 

nevertheless believes that the judge should be disqualified to avoid the appearance 

of impropriety. 

{¶ 3} Judge Sheward has responded in writing to the concerns raised in 

the affidavit of disqualification. The judge concedes that he did talk with 
SUPREME COURT OF OHIO

2 

defendants’ counsel ex parte, but he avers that no discussion about the merits of 

the case occurred during that conversation. According to Judge Sheward, Spitz 

overheard only part of the conversation with defense counsel and has taken those 

parts out of context. 

{¶ 4} Careful review of the evidence leads to the conclusion that attorney 

Spitz has met his burden of demonstrating that Judge Sheward engaged in an 

improper ex parte communication with defendants’ counsel. Accordingly, it is 

ordered that Judge Sheward be disqualified from further proceedings in the 

underlying case. 

Relevant Facts 

{¶ 5} On November 2, 2011, Judge Sheward conducted a pretrial 

conference in the underlying case. Defense counsel Marion H. Little Jr. had filed 

a motion for protective order and a motion to stay all discovery, and Judge 

Sheward scheduled the conference in an attempt to resolve the ongoing discovery 

disputes between the parties. Spitz and his co-counsel, Fred Bean, participated in 

the conference via the Bluetooth speaker phone in Spitz’s car. Ray C. Freudiger, 

counsel for another plaintiff, also participated in the conference by telephone. 

Little was the only attorney who was present with Judge Sheward in the judge’s 

office. At the end of the conference, Judge Sheward denied Little’s request to cut 

off discovery and granted Spitz an extension of time to respond to defendants’ 

summary-judgment motions. 

{¶ 6} Immediately after the conference had ended, Spitz took a telephone 

call on the same line from another client that lasted seven to eight minutes. When 

Spitz ended this phone call, he and co-counsel Bean heard voices on the line and 

realized that Spitz’s phone had not disconnected from Judge Sheward’s phone at 

the end of the conference. As a result, both Spitz and Bean were able to overhear 

Judge Sheward and attorney Little having an ex parte conversation. At some 

point, Spitz interjected and informed Judge Sheward and Little that he had 
January Term, 2012 

3 

rejoined the conversation and had overheard their discussion. There is no dispute 

that at least part of the conversation was overheard by attorneys Spitz and Bean. 

There is a dispute, however, about what Judge Sheward and attorney Little 

actually discussed. 

{¶ 7} Spitz and Bean allege that Judge Sheward and Little discussed the 

merits of the case and what had transpired during the just-completed conference. 

Specifically, they claim that they overheard (1) the judge and Little discussing 

Little’s previously raised motion for sanctions, (2) Little’s comment that 

plaintiffs’ proposed depositions would be worthless and that the taking of such 

depositions would be frivolous conduct by plaintiffs’ counsel, (3) Judge 

Sheward’s response that he agreed with Little that the depositions would be 

worthless and would not affect his decision on any outstanding motions, and (4) 

Judge Sheward’s remark that “even though I don’t like them, I have to let them do 

discovery until the discovery cutoff,” because he did not want to create an 

appellate issue for plaintiffs. 

{¶ 8} Judge Sheward does not respond specifically to each of these 

allegations. Rather, he responds generally, stating that “all of the discussions that 

occurred on November 2, 2011, had to do with discovery disputes between the 

parties, [and] nothing was ever mentioned about the merits of the case.” 

(Underlining sic.) According to Judge Sheward, Spitz “overheard part of a 

conversation and has taken those parts out of context.” The judge maintains that 

he and Little exchanged only “joking jabs” and that “good natured ribbing 

coupled with some complaining about court docket management comprised 

[their] banter.” And Judge Sheward states that he “tried to set the record straight” 

once he realized that Spitz had overheard and was offended by the conversation. 

{¶ 9} Attorney Little admits that he did “kibitz” with Judge Sheward as 

he was preparing to leave after the conference had ended. But Little denies 

engaging in any improper conversation with the judge. Rather, Little states that 
SUPREME COURT OF OHIO

4 

he and the judge exchanged “tongue-in-cheek” comments about Little’s work and 

vacation schedules. In addition, Little avers that he and the judge engaged in an 

“academic” discussion about how other common pleas court judges handle their 

dockets and about the court of appeals. 

{¶ 10} Judge Sheward’s staff attorney, Amy B. Koorn, has also submitted 

a response on behalf of the judge. Koorn was present during both the November 

2 conference and the ex parte conversation between Judge Sheward and Little that 

followed. Koorn states that Judge Sheward and Little engaged in “light 

conversation” and “superfluous small talk,” as Little gathered his case file at the 

conclusion of the conference, but that neither Judge Sheward nor Little spoke 

about the merits of the underlying case. Rather, according to Koorn, “Little spoke 

generally of his recent experience in moving for summary judgment in Common 

Pleas Court” and made “collective observations based upon his motion practice 

experience.” Koorn notes that Little explained that “he typically tries to file his 

motions well in advance of the motion deadline with the hope of avoiding the sort 

of situation that had prompted the [November 2] conference.” According to 

Koorn, Little described a “client centered approach that consists of moving for 

judgment early in an effort to end the litigation sooner and save his clients 

unnecessary expense.” In response to Little’s remarks, according to Koorn, Judge 

Sheward (1) acknowledged Little’s “noble attempts,” (2) noted that trial judges 

have wide discretion in discovery matters, and (3) commented that the court of 

appeals judges “frown upon decisions that shorten the discovery period.” 

Analysis 

{¶ 11} There is no dispute that Judge Sheward engaged in an ex parte 

conversation with attorney Little following the November 2 conference. The only 

question is whether the ex parte communication was improper and would 

therefore compel the judge’s disqualification from the underlying case. 
January Term, 2012 

5 

{¶ 12} Jud.Cond.R. 2.9 directs that judges “shall not initiate, receive, 

permit, or consider ex parte communications.” In affidavit-of-disqualification 

proceedings, however, the question is not whether the judge has violated the Code 

of Judicial Conduct, but whether the ex parte communication demonstrates bias or 

prejudice on the part of the judge. See In re Disqualification of Saffold, 94 Ohio 

St.3d 1238, 1239, 763 N.E.2d 605 (2001). To satisfy this test, the communication 

must address a substantive matter in the case. See In re Disqualification of 

Williams, 74 Ohio St.3d 1248, 1249-1250, 657 N.E.2d 1352 (1993), and In re 

Disqualification of Aurelius, 77 Ohio St.3d 1254, 674 N.E.2d 362 (1996). 

{¶ 13} Defendants’ motions for summary judgment and their motion to 

sanction plaintiffs for filing a frivolous complaint were still pending before the 

trial court following the November 2 conference. At the end of that conference, 

Judge Sheward granted Spitz an extension of time to respond to defendants’ 

summary-judgment motions and denied Little’s request to cut off discovery. 

Little stated during the November 2 conference that he intended to file a second 

motion for sanctions to recover fees and costs associated with further discovery 

conducted by plaintiffs. In addition, the parties continue to be involved in several 

ongoing discovery disputes, as evidenced by Little’s motion for protective order, 

filed on November 9, 2011. 

{¶ 14} Attorney Spitz contends that the ex parte conversation included 

discussions about the merits of the case and what had transpired during the 

November 2 conference. Specifically, Spitz claims that he overheard Judge 

Sheward and Little discuss the following topics: (1) Little’s previously raised 

motion for sanctions, (2) plaintiffs’ proposed depositions, including remarks by 

Little that the taking of those depositions would be “worthless” and “frivolous,” 

and (3) the judge’s decision to allow plaintiffs to take depositions, including the 

judge’s explanation that he did not want to create an issue for appeal by cutting 

off discovery. 
SUPREME COURT OF OHIO

6 

{¶ 15} For his part, Judge Sheward concedes that after he ruled in favor of 

the plaintiffs at the November 2 conference, attorney Little “continue[d] to argue 

that all discovery should end.” According to the judge, he stated to Little in 

response that “there was no reason to cut-off all discovery” and that the court 

could address the discovery issue “after the[] Motions for Summary Judgment 

were ruled upon, [but] to cut-off all discovery now would create an unnecessary 

appellate issue.” In addition to these express admissions, Judge Sheward does not 

deny or otherwise address Spitz’s claim that this particular discussion occurred ex 

parte after the conference had ended. Judge Sheward’s failure to deny or 

otherwise explain the discussion of these topics constitutes an admission that they 

were discussed ex parte after the conference had ended. In re Disqualification of 

Floyd, 101 Ohio St.3d 1217, 2003-Ohio-7351, 803 N.E.2d 818, ¶ 6-7 (failure to 

address the occurrence or the substance of the ex parte communication constitutes 

an admission). 

{¶ 16} Moreover, the conclusion that Judge Sheward and Little discussed 

these same subjects after the conference had ended is bolstered by the responses 

of staff attorney Koorn and attorney Little. In her response, Koorn states that 

after the conference had ended, the judge and Little discussed motion practice 

(including a reference to summary-judgment motions), discovery-related matters, 

and Judge Sheward’s view that the court of appeals “frown[s] upon [trial court] 

decisions that shorten the discovery period.” Similarly, Little admits that after the 

conference concluded, he and the judge discussed docket-management practices 

and that Judge Sheward “expressed his views about the appellate court.” 

{¶ 17} In sum, sufficient evidence exists in this case to conclude that 

Judge Sheward allowed Little to continue to argue issues that were still in 

controversy outside the presence of opposing counsel. Such conduct constitutes 

grounds for automatic disqualification. See Williams, 74 Ohio St.3d at 1249-
January Term, 2012 

7 

1250, 657 N.E.2d 1352 (ex parte communication that addresses substantive issue 

warrants disqualification). 

{¶ 18} But even if there were no discussion about a substantive matter in 

the case, Judge Sheward’s disqualification would still be required because the ex 

parte conversation between him and Little creates an appearance of impropriety. 

Id. at 1250 (even without evidence of bias, prejudice, or disqualifying interest, the 

ex parte communication may create an appearance of impropriety). 

{¶ 19} Attorney Little averred that he and the judge had only an 

“academic” discussion about the appellate court and “how some of the other 

[common pleas] judges in the courthouse were handling their dockets.” But 

according to the observations of Koorn, who overheard the entire ex parte 

conversation, their communication went well beyond the discussion that Little 

described. Koorn states that Little spoke generally to Judge Sheward about his 

“recent experience in moving for summary judgment in Common Pleas Court” 

and explained to the judge that “he typically tries to file his motions well in 

advance of the motion deadline with the hope of avoiding the sort of situation that 

had prompted the [November 2] conference.” According to Koorn, “[r]ather than 

some extravagant plan to sabotage the case schedule, Mr. Little described what 

[Koorn] would call a client centered approach that consists of moving for 

judgment early in an effort to end the litigation sooner and save his clients 

unnecessary expense.” 

{¶ 20} The subjects broached by Little, even accepting that he was not 

talking specifically about the underlying case, have a direct and substantial 

bearing on matters at issue before Judge Sheward, specifically (1) Little’s requests 

for sanctions, (2) the ongoing discovery disputes, and (3) Little’s motions for 

summary judgment. A reasonable person could justifiably infer that Little’s 

“academic” comments were an attempt to privately influence the judge in his 

favor as to matters pending before the court. In fact, according to Koorn, Judge 
SUPREME COURT OF OHIO

8 

Sheward “acknowledged [Little’s] noble attempts,” suggesting that the judge may 

have indeed been swayed. 

{¶ 21} Judge Sheward contends, however, that it should be evident by his 

decision in favor of the plaintiffs that he is impartial. But the test in this instance 

is not whether Judge Sheward is capable of treating the plaintiffs fairly and 

impartially, but whether a “reasonable and objective” person who was aware of 

the ex parte discussion between Judge Sheward and attorney Little “would harbor 

serious doubts about the judge’s impartiality.” In re Disqualification of Lewis, 

117 Ohio St.3d 1227, 2004-Ohio-7359, 884 N.E.2d 1082, ¶ 8 (setting forth the 

proper test for disqualifying a judge based on an appearance of impropriety). The 

fact that Judge Sheward and Little discussed topics that were closely related to 

matters pending before the court has the potential of undermining the impartiality 

and integrity of the trial court. 

{¶ 22} “The law requires not only an impartial judge but also one who 

appears to the parties and the public to be impartial.” In re Disqualification of 

Corrigan, 110 Ohio St.3d 1217, 2005-Ohio-7153, 850 N.E.2d 720, ¶ 11. 

Therefore, to allay any concerns on that issue, it is ordered that Judge Sheward 

participate no further in these proceedings. The case is returned to the common 

pleas court for reassignment to another judge of that court. 

______________________