The Ohio Supreme Court is continuing its trend of suspending lawyers who violate the disciplinary rule on sex with clients, and has again rejected arguments that pointed to the consensual nature of the relationship.  In a recent opinion involving sex between criminal defense counsel and his client, the court characterized the lower disciplinary Board’s analysis as “blaming the victim,” and increased the penalty above what the Board recommended.  The lawyer will serve a six-month suspension, with 18 months stayed on multiple conditions.

Hot tub trespass

The lawyer had previously represented “J.B.’s” boyfriend.  When J.B. was charged with felony theft, the lawyer agreed to represent her.  According to the opinion, the next day the lawyer and J.B. had drinks at a restaurant, discussed her case, had sex in the lawyer’s car in the parking lot, and engaged in sexual activity at least seven more times over the next four months, including trespassing into a neighbor’s yard to use a hot tub.

After rumors about the relationship began to spread, the lawyer falsely denied them to the judge presiding over J.B.’s criminal case.  In the meantime, the lawyer had filed a petition to run for prosecuting attorney.  After that, the county sheriff’s office began investigating the lawyer, and J.B. agreed to disclose the true nature of her relationship with the lawyer in exchange for a reduced sentence on her felonies.

Eventually, as part of a plea agreement on charges against him, including sexual battery, and criminal trespassing, the lawyer withdrew his candidacy for prosecutor and was sentenced to two years of community control and a fine.

Consent just doesn’t matter

The lawyer stipulated to violating Ohio’s version of Model Rule 1.8(j), which prohibits “sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.”  (The Ohio version refers to “sexual activity” with a client.”)

As the sanction for the lawyer’s misconduct, the Board of Professional Conduct recommended a two-year suspension with the entire two years stayed.  In the Board’s view, “not only was there no harm to the client, but the client leveraged her relationship with [the lawyer] to get a better plea deal,” and the lawyer had already suffered by his arrest, indictment, spending two nights in jail and being forced to withdraw from the prosecutor’s race — all stemming “from [the lawyer’s] consensual sexual relationship with his client.”

The Supreme Court strongly rejected this whole line of reasoning, along with the Board’s recommended sanction.  The Board’s approach, said the court, “essentially blamed the victim, J.B., for the negative consequences that [the lawyer] experienced resulting from his own decision to engage in sexual relations with a vulnerable client.”  (Emphasis in original.)

The court wrote that without a sexual relationship that pre-dates the client relationship, “seeking or having sex with a client is a per se violation,” and “the fact that a client appears to have consented does not mitigate the attorney’s misconduct or provide a defense against a violation.”

Instead, the court termed a sexual relationship with a client as “inherently and insidiously harmful,” categorizing this case as the “most disturbing” variety” — where “a lawyer has had sex with a client while defending the client against criminal charges … or has accepted sex in lieu of fees.”

The court imposed a two-year suspension with only 18 months stayed, along with multiple conditions — including taking and passing the MPRE, completing 12 hours of ethics CLE, and serving a two-year period of monitored probation.

Continuing trend

This case is one in a line of disciplinary opinions in which the Ohio Supreme Court has emphasized the power imbalance between the lawyer and client, and rejected the argument that the client’s consent to the sexual activity somehow ameliorates the ethical misconduct.  We’ve written before about one of these cases, in which the court found the lawyer not to be “remorseful” because he continued to argue that his sexual relationships with multiple clients were “consensual,” even while acknowledging it was wrong.  Several other such cases are cited in the opinion involving J.B.  It will be interesting to see how this court’s disciplinary stance on sex with clients continues to evolve.

Scale of Justice Holding a GavelA 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.