[Until this opinion appears in the Ohio Official Reports advanc e sheets, it may be cited as Disciplinary Counsel v. Winters , Slip Opinion No. 2021-Ohio-2753.]

NOTICE This slip opinion is subject to formal revision before it is pu blished in an advance sheet of the Ohio Official Reports. Readers are req uested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographic al or other formal errors in the opini on, in order that corrections m ay be made before the opi nion is published.

S LIP O PINION N O
. 2021-O HIO -2753
D ISCIPLINARY C OUNSEL v . W INTERS
. [Until this opinion appears in t he Ohio Official Reports advanc e sheets, it may be cited as Disciplinary Counsel v. Winters , Slip Opinion No. 2021-Ohio-2753.] Attorneys—Misconduct—Violations of th e Code of Judicial Conduct—Multiple violations arising from ex parte communications using social media— Conditionally stayed six-month suspension. (No. 2021-0442—Submitted May 12, 2021—Decided August 17, 2021.)
O N C ERTIFIED R EPORT by the Board of Professiona l Conduct of the Supreme Court, No. 2020-053.

______________ Per Curiam. {¶ 1} Respondent, Bruce Alan Winters, of Port Clinton, Ohio, Attorney Registration No. 0039779, was admitte d to the practice of law i n Ohio in 1988. He was elected as the sole judge of the Ottawa County Court of Common Pleas
General and Domestic Relations D ivisions in 2008. He was reele cted in 2014 and
2020.S UPREME C OURT OF O HIO

2 {¶ 2} In a September 2020 complaint, relator, disciplinary counsel, charged Winters with multiple violations of the Code of Judicia l Conduct arising from his ex parte communications with Keith Blumensaadt regardi ng multiple cases that were pending before him in the Ottawa County Court o f Common Pleas. Winters waived the right to a probable-cause hearing, a nd the case was assigned to a three-member heari ng panel of the Board of Profes sional Conduct. {¶ 3} The parties submitted extensive stipulations in which Winters
admitted that he had committed a ll of the allege d misconduct; h e also agreed to the aggravating and mitigating factors and recommended sanction of a conditionally stayed six-month suspension. Based on the stipul ations, the parties’ 33 stipulated exhibits, and Winters’s hearing testimony, the pa nel made findings of fact and misconduct and agreed with the parties’ recommended sanction with
two revisions—it removed the c ondition that the continuing-educ ation sanction be in addition to what Winters is already required to complete und er Gov.Jud.R. IV, and it recommended that Winters pay the costs of these proceedi ngs. The board adopted the panel’s report in its entirety. Based on our revie w of the record, we adopt the board’s findings of misconduct and recommended sancti on, with the
added condition that Winters mus t complete the continuing-educa tion sanction in
addition to what is alread y required by Gov.Jud.R. IV.
I. FACTS AND MISCONDUCT A. Winters’s Relationship with Blumensaadt {¶ 4} Before Winters was admitted to the practice of law, he worked a s a probation officer for the Ottawa County Juvenile Court, and he served as Blumensaadt’s probation officer in the early 1980s. Winters te stified that he had minimal contact with Blumensaadt for the 30-year period between serving as his probation officer and presiding over his criminal case as a com mon pleas court judge.January Term, 2021

3 {¶ 5} In June 2016, Winters issued civil stalking protection orders (“CSPOs”) that required Blumen saadt to stay at least 500 feet a way from his brother, Todd Blumensaadt Sr., and his nephew, Todd Blumensaadt Jr., both of whom resided on South Bass Island, Put-in-Bay Township. The CS POs were set to expire on May 3, 2021. {¶ 6} In June 2017, an Ottawa County grand jury indicted Blumensaadt on 12 felony counts and one misdemean or. Blumensaadt was arrested and incarcerated during the pendency of the case. At his disciplin ary hearing, Winters testified that he had disclosed his prior relationship with Blu mensaadt to the prosecutor and defense counsel and that both of them agreed tha t he could preside
over Blumensaadt’s criminal case. {¶ 7} On June 28, 2019, Winters approved a plea agreement in which Blumensaadt pleaded guilty to two felonies and one misdemeanor. Winters
sentenced Blumensaadt to time ser ved for the felony counts and a 180-day jail term for the misdemeanor count, which was suspended on the cond ition that Blumensaadt not enter Put-in-Bay for one year. Blumensaadt and the prosecutor agreed to the sentences, and Blume nsaadt was released from cust ody. {¶ 8} Within 30 days of Blumensaadt’s release, he and Winters became Facebook “friends.” They regularly communicated with each othe r from July 22 through December 19, 2019, using th e Facebook Messenger applica tion. 1 In addition to exchanging messages, Winters and Blumensaadt had se veral audio conversations through the applica tion in which they discussed p ersonal and professional matters—i ncluding multiple cases over which Winter s presided.

1. The Facebook Messenger application allows users to exchange instant private messages, photos, and audio and video recordings and to engage in real-time audio and video conversations. See Google Play, Messenger–Text and Video Chat for Free , https://play.google.com/store/a pps/details?id=com.facebook.orca &hl=en_US&gl=US (accessed July 20, 2021) [https://perma.cc/4B8N-FU4Y]; see also Apple Store, Messenger , https://apps.apple. com/us/app/messenger/ id454638411 (accessed J uly 20, 2021) [https://perma.cc/6GTE-GL99].S UPREME C OURT OF O HIO

4 B. Winters’s Ex Parte Communications {¶ 9} On August 21, 2019, an Ottawa County grand jury indicted A.M. o n charges of possession of cocaine and tampering with evidence. The day before A.M.’s arraignment, Blumensaad t sent Winters a Facebook message stating that A.M. had sold heroin to his daughter and requesting that Winter s not give A.M. a “bond he can make.” At the arraignment, Winters released A.M. on a recognizance bond. The following month, Blumensaadt sent Winte rs a message stating, “I see [A.M.] moved in are [sic] neighborhood on 14th street, I can’t wait to get out of here.” {¶ 10} Winters subsequently presided over A.M.’s trial. A jury found A.M. guilty of tampering with evidence and in February 2020, Wi nters sentenced him to 24 months in prison with credit for time served. Winter s never disclosed to the parties that he had received ex parte communications fro m Blumensaadt regarding A.M.’s case. {¶ 11} The parties stipulated and the board found that Winters’s condu ct violated Jud.Cond.R. 1.2 (requiring a judge to act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary and to avoid impropriety and the appearance of improp riety), 2.9(A) (prohibiting a judge from initiating, receiving, permitting, or considering ex parte communications except in certain circumstances), and 2.9(B) (re quiring a judge who receives an unauthorized ex parte communication bearing upo n the substance of a matter to promptly notify the parties of the substance of the communication and to provide the parties w ith an opportunity to respond). {¶ 12} The parties also stipulated and the board found that Winters violated those same rules by e ngaging in ex parte communication s with Blumensaadt regarding several ot her cases over which Winters pr esided without disclosing those communica tions to the parties.January Term, 2021

5 C. Winters’s Failure to Disqualify Himself {¶ 13} The parties also stipulated and the board found that Winters ha d failed to disqualify himself from several cases in which his ex parte communications might reasonably have drawn his impartiality int o question, resulting in three violations o f Jud.Cond.R. 2.11(A) (requiring a judge to disqualify himself in any proceeding in which the judge’s impar tiality might reasonably be questioned). The conduct giving rise to the Jud. Cond.R. 2.11(A)
violations is discussed below. 1. Blumensaadt’s Custody Case {¶ 14} Blumensaadt’s wife, Michelle, filed a complaint for divorce in July 2018. Winters referred the case to his magistrate, and his onl y involvement in the proceeding was signing the final judgment entry in May 2019 gra nting custody of
the Blumensaadts’ minor son to Michelle. {¶ 15} In August 2019, Blumensaadt sent Winters a Facebook message informing him that Michelle had agreed to transfer custody of t heir son to Blumensaadt but that neither of them could afford an attorney. He asked Winters if there was a form that they c ould use to achieve the custody transfer. Winters
directed Blumensaadt to a form on this court’s website and info rmed him that it would cost approximately $1,000 t o retain counsel to handle the matter. {¶ 16} On September 6, 2019, Blumensaadt filed a pro se motion for change of parenting time. Thr oughout the month, Blumensaadt se nt Winters several messages with information pertinent to his pending moti on. Winters occasionally responded, with comments like “Interesting!” and “ That’s sad.” On one occasion, Blumensaadt invite d Winters and his family to a p rivate dinner that was being hosted by his brother, Bill. Winters initially respo nded, “I don’t know what my schedule is tomorrow [ but] I’ll be in touch.” He later declined the invitation stating, “I guess I really shouldn’t since you have a case pending in myS UPREME C OURT OF O HIO

6 court. Thanks for asking. Let[’s] get this done . . . Before your personal injury case gets filed 😊 .” {¶ 17} Blumensaadt continued to send Win ters messages, claiming that h is son was afraid of visiting Mich elle and speculating that she di d not want to go to
court because “she’s lied about e verything.” He also informed Winters that
Michelle had retained an attorney and tha t they would soon be f iling an agreement in court. Winters responded, “ Glad you have it worked out. So rry, I’ve been very busy with a trial.” That same day , Michelle’s attorney filed a proposed consent agreement regarding the transfe r of custody from Michelle to Bl umensaadt. {¶ 18} On September 30, 2019, Winters signed an order designating
Blumensaadt as the residential parent and legal custodian for h is son and establishing a parenting schedule for Michelle. Blumensaadt se nt Winters a message stating that he had received the order and Winters repl ied, “Good deal!”
2. Modification of CSPOs to Perm it Blumensaadt to Attend His Mo ther’s
Funeral {¶ 19} On September 14, 2019, Blumens aadt sent Winters a message stating that Blumensaadt’s mother had a terminal illness and ha d less than one year to live. Through the end of November, they exchanged pers onal messages every few days about Put-in-Bay residents, politics, or events, along with a few messages regarding the declining health of Blumensaadt’s mother and
Blumensaadt’s strained relati onship with Todd Sr. and Todd Jr.— the brother and nephew who had obtained CSPOs against him. {¶ 20} On November 30, 2019, Blumensaad t sent Winters a message stating, “Hey I have a question about my mom, when she passes a nd that protective order, call me when you get a chance please!” Withi n an hour, Winters
initiated an audio conversation with Blumensaadt through Facebo ok Messenger and instructed him to file a motion asking the court to tempora rily modify the
CSPOs to allow him to attend his mother’s funeral where Todd Sr ., Todd Jr., andJanuary Term, 2021

7 other protected persons named in the CSPOs would be present. A few days later, they spoke for 30 minutes through Facebook Messenger about pote ntial
modifications to the CSPOs. {¶ 21} On December 10, Blumensaadt sent a message to Winters stating that his attorney had filed a motion and asking Winters to “get [an] order together ASAP.” Blumensaadt’s attorney had also filed a motion in Blume nsaadt’s criminal case seeking permission for Blumensaadt to travel to S outh Bass Island
for his mother’s funera l; the state did not object. {¶ 22} On December 17, Todd Sr. and Todd Jr. each filed objections to Blumensaadt’s motion to modify the CSPOs. Blumensaadt sent a m essage to Winters that same day stating, “Todd doesn’t want me there, now what[?]” Winters did not respond. In anot her message sent later that da y, Blumensaadt accused his brother of using the protection order as a weapon. Winters responded, stating that the magis trate would have a hearing. A t Blumensaadt’s request, Winters initiated an a udio conversation through Facebo ok Messenger later that night; they discussed Todd Sr.’s personal objections to Blumensaadt’s
attendance at his mother’s fune ral, but they did not discuss th e legal objections filed by Todd Sr. and Todd Jr. regarding Blumensaadt’s request for modification
of the CSPOs. {¶ 23} On December 18, Blumensaadt followed up with a message reminding Winters that the CSPOs allowed him to attend his son’ s school functions, even if the protected persons were present. He sent another message to Winters later that day asking if there was any word about the a rrangements, and Winters responded, “A deput y will accompany you. No need for c onsent, no need for a hearing and the Sheriff is onboard [sic].” Two days late r, Winters granted Blumensaadt’s motion to modify the CSPOs without conducting a h earing on the objections of Todd Sr. and Todd Jr. He also granted the motion to travel that hadS UPREME C OURT OF O HIO

8 been filed in Blumensaadt’s criminal case. Both orders incorpo rated the travel
schedule that Blumensaadt had c onveyed to Winters in a Facebook message. 3. Criminal Case Related to Blu mensaadt’s Personal-Injury Claim

{¶ 24} On July 27, 2019, Blumensaadt was injured when his motorcycle was struck from behind by a vehicle driven by D.F. On Septembe r 9, 2019, a bill
of information was f iled in the Ottawa Count y Court of Common P leas charging
D.F. with two misdemeanor counts of operating a vehicle under t he influence (“OVI”), one misdemeanor count o f failing to maintain space bet ween moving vehicles, and two felony counts of aggravated vehicular assault . Winters presided
over the case. {¶ 25} From September 9, 2019, through January 25, 2020, Blumensaadt and Winters exchanged messages re garding Blumensaadt’s injuries and D.F.’s criminal case. On October 11, 2019, the state and D.F. jointly requested that D.F. be accepted into a pretrial dive rsion program. A few days late r, Blumensaadt sent Winters the following message:

Then this guy who hit me wants to plead no contest to ovi felony, not a chance, he doesn’t want to admit guilt so he can get out of liability, over my dead body, [the prosecutor] should no better, I’m waiting to hear what him and [my attorney] have figured out on that yet, he blows twice over legal limit and admitted to drinking, I don’t think he has a chance at jury tri al, he’s been offered 1 ovi felony and 1 unasheered clear distance misdemeanor and diversion progr am, he should be happy with no jail time, but no, he wants his cake and eat it to.

(Misspellings sic.)January Term, 2021

9 {¶ 26} On November 14, 2019, Blumensaadt sent the following message to Winters: “Doctor says I more than likely won’t be able to wo rk again because of accident, back and legs go numb and give out after 10 to 15 minutes of standing because of crushed disk. N ice[.] Can anything else g o wrong[?]” {¶ 27} In December 2019, Winters granted the motion to place D.F. in a diversion program. Before D.F.’s plea-change-and-diversion hea ring,
Blumensaadt sent Winters a me ssage stating that he understood t hat Winters was in a difficult position as a judge in a small county, that he r espected Winters, and that he hoped the case would not c hange their relationship. D. Court Adopts Board’s Findings of Misconduct {¶ 28} Based on the conduct described a bove, we find that Winters (1) engaged in inappropriate ex part e communications with Blumensaa dt regarding the substance of multiple cases that were pending before him an d (2) failed to promptly notify the parties of those communications and give th em an opportunity to respond. We further find that Winters’s conduct failed to promote public confidence in the independe nce, integrity, and impartial ity of the judiciary and created an appearance of impropriety. We therefore adopt t he board’s findings that Winters violat ed Jud.Cond.R. 1.2, 2.9(A), and 2.9 (B) by his ex parte communications on four counts: (1) the matter involving A.M., ( 2) the custody transfer, (3) the modification of the CSPOs, and ( 4) the matter involving D.F. {¶ 29} We also agree with the Board’s f inding that Winters’s unauthori zed ex parte communications with Blumensaadt could reasonably call his impartiality into question with respect to each of the cases in which Blumen saadt was a party and the criminal case related to Blumensaadt’s personal-injury claim. We therefore adopt the board’s fi ndings that Winters committed thr ee violations of Jud.Cond.R. 2.11(A) by failing to disqualify himself from those proceedings. {¶ 30} In addition, we note that Winters stipulated that his conduct i n modifying the CSPOs to permit Blumensaadt to attend his mother’ s funeralS UPREME C OURT OF O HIO

10 violated Jud.Cond.R. 2.2 (requiri ng a judge to uphold and apply the law and to perform all duties of judicial office fairly and impartially). However, neither the panel nor the board a ddressed that stipulation. We find that W inters’s decision to modify the CSPOs without disclosing his ex parte communications and without conducting a hearing on the objec tions of the protected persons was unfair to
Todd Sr. and Todd Jr. and could r easonably call into question W inters’s impartiality—even though he appears to have reached the correct result in those
matters. We therefore find that Winters’s conduct violated Jud .Cond.R. 2.2, as stipulated by the parties.
II. SANCTION {¶ 31} When imposing sanctions for attorney misconduct, we consider al l relevant factors, including the ethical duties that the lawyer violated, the aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions imposed in similar cases. {¶ 32} As for aggravating factors, the parties stipulated and the boar d found that Winters had engaged in a pattern of misconduct that involved multiple
offenses. See Gov.Bar R. V(13)(B)(3) and (4). As for mitigating factors, th e parties stipulated that Winters has no prior discipline, acted without a dishonest or selfish motive, made full and free disclosure to the board and exhibited a cooperative attitude toward the di sciplinary proceedings, and s ubmitted evidence of his good character and reput ation in the community. See Gov.Bar R. V(13)(C)(1), (2), (4), and (5). In addition to adopting those factors, the board found that Winters had expressed genuine remorse for his miscon duct and that he
had terminated his social-media accounts. {¶ 33} The parties jointly recommended that Winters be suspended from the practice of law for six months, stayed in its entirety on t he conditions that he (1) complete at least three hours of judicial-ethics education focused on ex parteJanuary Term, 2021

11 communication or the use of soci al media by judicial officers, in addition to the requirements of Gov.Jud.R. IV a nd (2) engage in no further misc onduct. {¶ 34} In determining the appropriate sanction for Winters’s misconduc t, the board considered numerous cas es with sanctions ranging from a public reprimand to permanent disbarment. See, e.g. , Disciplinary Counsel v. Stuard , 121 Ohio St.3d 29, 2009-Ohio-261, 901 N.E.2d 788 (publicly repr imanding a judge who engaged in a series of ex parte communications with a n assistant prosecutor whom he had asked to draft a sentencing order in a c apital case); Disciplinary Counsel v. Medley , 93 Ohio St.3d 474, 756 N.E.2d 104 (2001) (publicly reprimanding a judge who drove a defendant home afte r her arrest, then failed to recuse himself from presiding over the defendant’s cr iminal case); Disciplinary Counsel v. Terry , 147 Ohio St.3d 169, 2016-Ohio-563, 63 N.E.3d 88 (permanently disbarring a judge w ho was convicted in federal co urt of one count of conspiracy to commit mail fraud and two counts of honest-ser vices mail fraud for providing judicial favors in exchange for contributions to his election campaign). {¶ 35} Between the two extremes of public reprimand and permanent disbarment, the board considered Disciplinary Counsel v. Porzio , 160 Ohio St.3d 77, 2020-Ohio-1569, 153 N.E.3d 70. In Porzio , we imposed a conditionally stayed six-month suspension on a m agistrate who, like Winters, had engaged in ex parte communications that gave t he appearance of bias against o ne of the parties to litigation over which she ha d presided. Porzio’s communicat ion consisted of a single conversation with one of th e parties and that party’s wi tnesses at the conclusion of a hearing on a petition and counterpetition for a civil stalking protection order. Both parties appeared pro se, and Porzio ask ed the parties to leave the courthouse separately a t the conclusion of the hearin g. After the first party left the courtroom, Porzio commented to the remaining par ty and his witnesses that neither party had proved his case and that the o ther party was “suchS UPREME C OURT OF O HIO

12 a liar,” “made himself look like a fool,” was “clueless,” and a cted “like he’s 10 years old.” Id. at ¶ 7. A few months after making those statements, Porzio is sued a decision granting a civil protection order to the party with whom she had engaged in the ex parte communi cation and denying the counterpe tition of the other party. There were no aggr avating factors, and significan t mitigating factors were present. Porzio had a clean disciplinary record in her mo re than 40 years of practice, lacked a dishonest or selfish motive, exhibited a coo perative attitude toward the disciplinary proceedings, lost her job as a result o f her misconduct, and presented significant evidence of her competence, integrity, an d professionalism as a magistrate. {¶ 36} The board also noted that in Disciplinary Counsel v. Elum , 148 Ohio St.3d 606, 2016-Ohio-8256, 71 N.E.3d 1085, we disciplined a judge who injected himself into and attempted to resolve a landlord-tenan t dispute that was not on his docket. Like Winters, Elum lacked a dishonest or se lfish motive, cooperated with the disciplinar y process, and submitted signifi cant character and reputation evidence. At his di sciplinary hearing, Elum acknowl edged that he let his heart get in the way and admitted that he was not a proper person to mediate the dispute. Acknowledging that Elum had previously been disci plined for injecting himself into an internal police-department investigat ion, we imposed a conditionally stayed one-year sus pension for his second offense

. {¶ 37} In contrast to Porzio and Elum, both of whom engaged in isolate d incidents of misconduct, Winters engaged in inappropriate ex pa rte communications and failed to dis qualify himself from several ca ses in which his impartiality could reasonably be questioned. However, the reco rd does not suggest that Winters’s misconduc t led him to reach any improper or biased

outcome

. While the board acknowledged th at Winters’s decision to allow
Blumensaadt to attend his mother’s funeral with a sheriff’s esc ort appeared to be the correct result, it appropriately admonished him that “all l itigants are entitled toJanuary Term, 2021

13 have their disputes heard by a judicial officer [who] is free o f any possible bias and [who] is not engaged in back-channel discussions with one o f the parties about the very topic th at is being decided.” {¶ 38} Recognizing that Winters accepted responsibility for his misconduct, fully cooperated in r elator’s investigation, and ha d taken steps to remediate his conduct by termina ting his social-media accounts, the board recommended that he be suspended from the practice of law in Oh io for six months with the entire suspension stayed on the conditions that he (1) complete at least three hours of continuing j udicial education on the subje ct of ex parte communications or appropriate use of social media by judicial o fficers, (2) refrain from committing further misconduct , and (3) pay the costs of th ese proceedings. {¶ 39} After reviewing the record in th is case and the sanctions that we have imposed for comparable mis conduct, we agree that a conditi onally stayed six-month suspensi on is appropriate.
III. CONCLUSION {¶ 40} Accordingly, Bruce Alan Winters is suspended from the practice of law in Ohio for six months, with the entire suspension stayed o n the conditions that he (1) complete a minimum of three hours of continuing jud icial education approved by relator on the subj ect of ex parte communications o r appropriate use of social media by judicial offi cers, in addition to the requir ements of Gov.Jud.R. IV, (2) refrain from further misconduct, and (3) pay the costs of these proceedings. If Winters fails to comply with any condition of the stay, the stay
will be lifted and he w ill serve the entire six-month suspensio n. Costs are taxed to
Winters. Judgment accordingly.
O’C ONNOR , C.J., and K ENNEDY , F ISCHER , D E W INE , D ONNELLY , S TEWART , and B RUNNER , JJ., concur.

_________________S UPREME C OURT OF O HIO

14 Joseph M. Caligiuri, Disciplinary Counsel, and Karen H. Osmond and Donald M. Scheetz, Assistant Di sciplinary Counsel, for relator. Charles J. Kettlewell, L.L.C., a nd Charles J. Kettlewell, for r espondent.

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