The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
"The Undersigned Cannot Recall a Comparable Instance of Such Brazen and Repeated Dishonesty" in 55 Years as a Judge
The "filings have led to the Court completely losing trust in" the lawyers involved.
From Judge Walter Rice (S.D. Ohio) Friday in Kettering Adventist Healthcare v. Collier:
At the outset, the Court must address the troubling accusations made by Kettering and the EBG Defendants: that Collier and Scott fabricated support for their arguments…. [T]he volume, extent, and repetitive nature of fabrications by Scott [a self-represented lawyer] and Hewitt [Collier's lawyer] are without parallel in the undersigned's tenure as a trial judge.
Kettering and the EBG Defendants brought these cases to the attention of the Court—and to the attention of Scott and Hewitt—not in passing, but in a footnote that occupied more than one-third of one page, single-spaced and two full pages in the EBG Defendants' Reply. Yet, neither Scott nor Hewitt has acknowledged the misrepresentations, much less attempted to explain why they subsequently inserted them into multiple filings….
[These] are not mere scrivener's errors or the confusing of the holding of a case with dictum. They are not even engaging in such misreading of the decision that they fail to recognize that the case stands for a proposition diametrically opposed to the one they are asserting. Rather, Scott and Hewitt have cited at least twelve cases that either do not exist or are so far afield from the subject matter of the captioned case that they should have reasonably realized that they had no place in a Court filing, in this or in any other case. Incredibly, even after being put on notice by Kettering that three cases cited in Collier and Scott's Motion did not state what Collier and Scott represented that they did, Collier and Scott cited those very same cases for the very same propositions of law in their later Reply.
Notably, despite being aware since September 15, 2025, that Kettering is accusing her of fabricating caselaw, and despite voluminous motion practice and numerous telephonic conferences since then, Scott has never addressed the allegation. Nor has Hewitt, despite being on notice for more than a month that the EBG Defendants were indirectly accusing him of fabricating cases by co-signing the memorandum contra. By failing to do so, Scott and Hewitt have compounded their errors by neglecting their ongoing, affirmative duty of candor to the Court. See Ohio R. Prof. Cond. 3.3(a)(1) (emphasis in original) ("A lawyer shall not knowingly … fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer[.]").
Even though there is no colorable argument that the above citations are in any way accurate, Scott and Hewitt were still obligated to acknowledge their transgressions to the Court. Scott's conduct is particularly egregious, given that, after being caught red-handed, she doubled down and again fabricated many of the same citations. Whether singly or in the aggregate, Scott and Hewitt's actions and lack of accountability defy explanation….
The Court does not know whether Scott and Hewitt used Al to generate caselaw in support of their arguments, and whether counsel did so is ultimately unimportant. What is important is that Scott and Hewitt violated their duty of candor and their duty to represent to the Court that, in any filing, "the claims, defenses, and other legal contentions are warranted by existing law[.]" … [D]espite having served continuously as a trial judge since 1969, the undersigned cannot recall a comparable instance of such brazen and repeated dishonesty….
Collier and Scott's filings have led to the Court completely losing trust in Scott and Hewitt. To allow counsel's representation to continue, moving forward, would require everyone involved in this case to verify not only that the cases cited by Collier and Scott stand for the propositions cited, but, indeed, whether the cases exist at all and have any relevance whatsoever to the argument Collier and Scott are making. The Court will not impose such a burden on both opposing parties and itself. Perhaps Scott and Hewitt, or new counsel representing Collier and Scott, can establish and maintain the successor Judge's trust. However, given the Court's intent to refer Scott and Hewitt for disciplinary proceedings, that trust cannot be rebuilt with the undersigned.
For these reasons, Scott and Hewitt are ordered to show cause within FOURTEEN (14) days of entry: (1) why their conduct did not violate Rule 11(b); (2) why they should not be held in contempt of Court; and (3) why this Court should not impose sanctions, including but not limited to overruling Scott and Collier's Motion to Dismiss with prejudice. No ruling is made at this time on that motion….
Upon resolution of the Show Cause Order, the undersigned intends to recuse himself from further proceedings in this litigation and to report Scott and Hewitt to the Cincinnati Bar Association Grievance Committee or the Supreme Court of Ohio Office of Disciplinary Counsel….
One might understand and excuse a citation containing an incorrect date, or presenting dicta as the holding of a given case. However, Scott and Hewitt's actions in this matter, unexplained and unapologized for, in spite of their conduct twice having been brought to their attention by opposing counsel, in the aggregate, as opposed to a single situation involving a single case, is nothing less than a breach of the duty of candor, honesty, and trust that, if it is allowed to become the norm, threatens the very foundation of our legal system and the rule of law.
