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Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 11 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

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<img style="max-width: 100%;height: auto;max-width: 100%;height: auto" loading="lazy" class="alignright size-medium wp-image-4261" src="https://www.thelawforlawyerstoday.com/wp-content/uploads/sites/754/2019/01/Ohio-Supreme-Court-300x200.jpg" alt="" width="300" height="200">The Ohio Supreme Court is continuing its&nbsp;trend of suspending lawyers who violate the disciplinary rule on&nbsp;sex with clients, and has again&nbsp;rejected&nbsp;arguments that pointed to&nbsp;the consensual nature of the relationship.&nbsp; In a <a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2018/2018-Ohio-4717.pdf">recent opinion</a> involving sex between criminal defense counsel and his client, the court characterized&nbsp;the lower disciplinary Board&rsquo;s analysis as &ldquo;blaming the victim,&rdquo; and increased the penalty above what the Board recommended.&nbsp; The lawyer will serve a six-month suspension, with 18 months stayed on multiple conditions.
Hot tub trespass
The lawyer had previously represented &ldquo;J.B.&rsquo;s&rdquo;&nbsp;boyfriend.&nbsp; When J.B. was charged with felony theft, the lawyer agreed to represent her.&nbsp; According to the opinion,&nbsp;the next day the lawyer and J.B. had drinks at a restaurant, discussed her case, had sex in the lawyer&rsquo;s car in the parking lot, and&nbsp;engaged in sexual activity at least seven more times over the next four months, including trespassing into a neighbor&rsquo;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.&rsquo;s&nbsp;criminal case. &nbsp;In the meantime, the lawyer had filed a petition to run for prosecuting attorney.&nbsp;&nbsp;After that, the county sheriff&rsquo;s office began investigating the lawyer, and J.B.&nbsp;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,&nbsp;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&rsquo;t matter
The lawyer stipulated to violating Ohio&rsquo;s version of <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_8_current_clients_specific_rules/">Model Rule 1.8(j)</a>, which prohibits &ldquo;sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.&rdquo;&nbsp;&nbsp;(The Ohio version refers to &ldquo;sexual activity&rdquo; with a client.&rdquo;)
As the sanction for the lawyer&rsquo;s misconduct, the Board of Professional Conduct recommended a two-year suspension with the entire two years stayed.&nbsp; In the Board&rsquo;s view, &ldquo;not only was there no harm to the client, but the client leveraged her relationship with [the lawyer] to get a better plea deal,&rdquo; and the lawyer had already suffered by his arrest, indictment, spending two nights in jail and being forced to withdraw from the prosecutor&rsquo;s race &mdash; all&nbsp;stemming &ldquo;from [the lawyer&rsquo;s] consensual sexual relationship with his client.&rdquo;
The Supreme Court strongly rejected this whole line of reasoning, along with the Board&rsquo;s recommended sanction.&nbsp; The Board&rsquo;s approach, said the court, &ldquo;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.&rdquo;&nbsp; (Emphasis in original.)
The court wrote that without a sexual relationship that pre-dates the client relationship, &ldquo;seeking or having sex with a client is a per se violation,&rdquo; and&nbsp;&ldquo;the fact that a client appears to have consented does not mitigate the attorney&rsquo;s misconduct or provide a defense against a violation.&rdquo;
Instead, the court termed a sexual relationship with a client as &ldquo;inherently and insidiously harmful,&rdquo; categorizing this case as the&nbsp;&ldquo;most disturbing&rdquo; variety&rdquo; &mdash;&nbsp;where &ldquo;a lawyer has had sex with a client while defending the client against criminal charges ... or has&nbsp;accepted sex in lieu of fees.&rdquo;
The court imposed a two-year suspension with only 18 months stayed, along with multiple conditions &mdash; including taking and passing the MPRE, completing 12 hours of ethics&nbsp;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&nbsp;the power imbalance between the lawyer and client, and rejected&nbsp;the argument that the client&rsquo;s consent to the sexual activity somehow ameliorates the ethical misconduct.&nbsp;&nbsp;We&rsquo;ve written <a href="https://www.thelawforlawyerstoday.com/2015/07/sex-addiction-not-a-mitigating-factor-in-discipline-ohio-court/">before</a> about one&nbsp;of these cases, in which the court found the lawyer not to be &ldquo;remorseful&rdquo; because he continued to argue that his sexual relationships with multiple clients were &ldquo;consensual,&rdquo; even&nbsp;while acknowledging&nbsp;it was wrong.&nbsp; Several other such cases&nbsp;are cited in the opinion&nbsp;involving J.B.&nbsp; It will be interesting to see how this court&rsquo;s&nbsp;disciplinary stance on sex with clients continues to evolve.

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Ethics

Legal Ethics, Professional Responsibility and the Business of Law

Sex with client draws suspension; consent plays no part in analysis, Ohio court again says