A divided Ohio Supreme Court last week suspended a lawyer for two years, with six months stayed, based on his sexual relationships with four clients.
Ohio’s Rule 1.8(j), like Model Rule 1.8(j),bars sex with clients unless a consensual sexual relationship pre-existed the client relationship. (The Ohio rule extends to soliciting or engaging in sexual activity of any kind; the Model Rule only forbids engaging in sexual relations.)
Sex with four female clients
The lawyer, who had a solo practice focusing on consumer bankruptcy and criminal defense, became involved with one woman in 2008, soon after he started representing her on DUI and other charges. Over the four-month relationship, the lawyer sent the woman 2,000 text messages, many sexually explicit. The woman was 18 years old at the time.
After the relationship ended, the woman asked the lawyer to stop contacting her, and had to change her phone number and email address when he did not.
In 2010, the lawyer became sexually involved with three additional women, each of whom he represented in bankruptcies. One of the women became pregnant, and testified at the disciplinary hearing that after the lawyer learned this, he bombarded her with text messages and phone calls urging her to have an abortion. The lawyer ended the relationship; the woman testified that the experience ruined her life and that her husband had a nervous breakdown.
No mitigation for “sex addiction”
Before the case arrived in the state supreme court for final disposition, the hearing panel and the Board of Professional Conduct had found as a mitigating factor that the lawyer had a mental disability consisting of a “pattern of compulsive behavior known as sexual addiction,” but the court disagreed. The court held that “sex addiction” is not a recognized mental-health disorder under the DSM-IV or DSM-V guidelines, and therefore can’t meet the requirement for being a mitigating factor under state disciplinary procedural rules.
On the other hand, the court agreed that the evidence was sufficient to prove that the lawyer did suffer a mitigating mental-health disability — anxiety and depression, which led him to act out sexually.
Inherently unequal relationship makes consent irrelevant
The lawyer asserted that his sexual encounters with the four women were “consensual.” He also testified that it didn’t occur to him at the time that he was taking advantage of these female clients.
The state supreme court strongly rejected the idea that consent could factor into any mitigation analysis, holding that “consensual sex is precisely what is prohibited under the rule,” and that the lawyer’s insistence that the sex was consensual “gives the impression that he does not comprehend the wrongfulness of his conduct.”
The court said that the prohibition against sexual relationships with clients is based on the fact that the attorney-client relationship is inherently unequal, and necessarily places a lawyer in a position of dominance over a potentially vulnerable and dependent client.
The court also noted that despite the lawyer’s expressions of remorse, he had not apologized to any of his clients, and instead had tried to discredit and embarrass the clients who filed grievances against him.
The divided court handed down a harsher penalty than the panel and Board had recommended. (The panel and Board had urged a two-year suspension with one year stayed.) But three of the seven justices would have issued an “indefinite suspension,” a penalty that in Ohio requires at least a two-year sit-down. Only disbarment is more severe.