An Ohio lawyer crossed a border and also a line, leading to a two-year suspension and a restitution order under an opinion the state supreme court handed down this week. The suspension was based on ethics violations as to numerous clients, but one involved the prohibitions against unauthorized practice and sexual activity with clients. The opinion continues the disciplinary trend in the Buckeye State to treat all forms of lawyer-client sex harshly — even in the absence of physical contact. It also shines a light on the perils of unlicensed cross-border practice.
Michigan v. Ohio (and not college football)
The client’s divorce action was already pending in Monroe County, Michigan when she retained the lawyer, who practiced in Toledo, Ohio, just across the border from Michigan. The lawyer advised the client that he was not licensed to practice in Michigan, but would file a motion for pro hac vice admission and affiliate himself with an Ohio lawyer he knew who was licensed in both states.
Over the next six months, however, as described in the Board of Professional Conduct’s recommendation to the state supreme court, the lawyer failed to seek any kind of admission in the Wolverine State, despite the reminders he received from the Michigan-admitted lawyer, who was the only one of record in the client’s divorce case.
Despite his lack of any status in the case, the lawyer went to Michigan and, along with the Michigan-admitted lawyer, participated in both an unsuccessful mediation and a final pretrial conference on behalf of the client. The Michigan-admitted lawyer, however, had never received the retainer he demanded, and refused to represent the client at her June trial. That left her unrepresented, forcing her to scurry to arrange substitute counsel on a week’s notice.
The court found that the unlicensed cross-border practice in Michigan violated Ohio’s version of Model Rule 5.5, which bars practice in a jurisdiction in which the lawyer is not admitted, and adopted the Board’s recommendation that the lawyer make restitution to the client of the $16,500 she paid to the lawyer and to substitute counsel for his work in coming up to speed the week before trial.
In addition, according to the court’s opinion and the Board’s recommendation, the lawyer “engaged in an inappropriate personal relationship with [the client] that included multiple texts that were solicitous and sexual in nature.” They never entered into a physical relationship, however, and the lawyer argued to the hearing panel that absent “actually engag[ing] in physical sexual activity” he did not violate Ohio’s version of Model Rule 1.8(j). (The lawyer later deleted the “salacious texts,” but the client kept them.)
The Model Rule proscribes “sexual relations” with a client unless a consensual sexual relationship pre-existed the client-lawyer relationship. But Ohio’s Rule 1.8(j), in contrast, more broadly prohibits “solicit[ing] or engag[ing] in sexual activity” absent a pre-existing consensual sexual relationship. The Board noted that “one can violate the [Ohio] rule by the mere solicitation of sexual activity,” which had been clearly and convincingly proven by the text messages, the Board said.
As we’ve noted before, the state supreme court readily disciplines lawyers who violate the rule on sexual contact with clients, rejecting arguments based on consent, and here, the lack of actual physical relations.
Bottom line: Toeing the line, whether it is a state border or an issue of sexual conduct, is the best way to avoid disciplinary trouble.