Butler Cty. Bar Assn. v. Blauvelt (Slip Opinion) , 2020 Ohio 3325 ( 2020 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Butler Cty. Bar Assn. v. Blauvelt, Slip Opinion No. 2020-Ohio-3325.]
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SLIP OPINION NO. 2020-OHIO-3325BUTLER COUNTY BAR ASSOCIATION v. BLAUVELT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Butler Cty. Bar Assn. v. Blauvelt, Slip Opinion No.
2020-Ohio-3325.]
Attorneys—Misconduct—Violation of the Rules of Professional Conduct, namely,
engaging in conduct that adversely reflects on the lawyer’s fitness to
practice law—Conditionally stayed two-year suspension.
(No. 2020-0226—Submitted April 8, 2020—Decided June 17, 2020.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2019-028.
_______________________
Per Curiam.
{¶ 1} Respondent, Scott Nicholas Blauvelt, of Hamilton, Ohio, Attorney
Registration No. 0068177, was admitted to the practice of law in Ohio in 1997.
{¶ 2} In June 2019, relator, Butler County Bar Association, charged
Blauvelt with violating Prof.Cond.R. 8.4(h) (prohibiting a lawyer from engaging in
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conduct that adversely reflects on the lawyer’s fitness to practice law) after he
pleaded guilty to charges of public indecency and reckless operation of a vehicle.
The parties entered into stipulations of fact, misconduct, and aggravating and
mitigating factors and jointly recommended that Blauvelt serve a conditionally
stayed two-year suspension. Blauvelt and three medical professionals testified at a
hearing before a panel of the Board of Professional Conduct, and the board has
issued a report finding that Blauvelt engaged in the stipulated misconduct and
recommending that we impose the parties’ agreed-upon sanction, with a few
modifications to the conditions of the stay. Neither party has filed objections to the
board’s report.
{¶ 3} Based on our review of the record, we agree with the board’s finding
of misconduct and adopt its recommended sanction.
Misconduct
{¶ 4} Blauvelt has a history of public nudity. In 2006, when he was the
Hamilton city prosecutor, security cameras recorded him naked after hours in the
government building housing the prosecutor’s office. He was charged with public
indecency, but the case was dismissed based on a speedy-trial violation. The city
nonetheless terminated Blauvelt’s employment.
{¶ 5} In March 2018, an officer stopped Blauvelt’s vehicle for a headlight
violation and observed that Blauvelt was naked. No charges were filed as a result
of that incident.
{¶ 6} In October 2018, the Ohio State Highway Patrol received a report that
a motorist was masturbating while driving. A state trooper stopped Blauvelt’s
vehicle and found him naked, with pants covering his lap. After talking with
Blauvelt, the trooper suspected that Blauvelt was intoxicated and arrested him.
{¶ 7} Blauvelt was charged with public indecency in the Lebanon
Municipal Court and with operating a vehicle while under the influence of alcohol
or drugs in the Franklin Municipal Court. He later pleaded guilty to the public-
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indecency offense, and the Lebanon court sentenced him to a suspended 30-day jail
term and ordered him to pay a fine and serve a one-year term of nonreporting
probation. In the Franklin court, Blauvelt pleaded guilty to an amended charge of
reckless operation of a vehicle, and the court sentenced him to a suspended three-
day jail term and ordered him to pay a fine and complete a driver-intervention
program.
{¶ 8} During his disciplinary proceedings, Blauvelt acknowledged that
there had been other occasions on which he drove his vehicle while naked but was
not detected by authorities.
{¶ 9} Based on the above conduct, the parties stipulated and the board found
that Blauvelt violated Prof.Cond.R. 8.4(h). See Disciplinary Counsel v. Bricker,
137 Ohio St.3d 35, 2013-Ohio-3998, 997 N.E.2d 500, ¶ 21 (explaining that
Prof.Cond.R. 8.4(h) is a catchall provision and that when a lawyer’s conduct is not
specifically prohibited by the Rules of Professional Conduct, he may be found to
have violated Prof.Cond.R. 8.4(h) if he engaged in misconduct that adversely
reflects on his fitness to practice law). We agree with the board’s finding of
misconduct.
Sanction
{¶ 10} When imposing sanctions for attorney misconduct, we consider all
relevant factors, including the ethical duties that the lawyer violated, the
aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions
imposed in similar cases.
{¶ 11} As for aggravating factors, the board found that Blauvelt had
engaged in a pattern of misconduct and submitted a false statement during the
disciplinary process. See Gov.Bar R. V(13)(B)(3) and (6). To support the finding
of a false statement, the board noted that during Blauvelt’s initial evaluation with
Stuart W. Bassman, Ed.D., a psychologist who evaluated Blauvelt for a potential
sexual disorder, Blauvelt disclosed only the October 2018 incident, which had led
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to his criminal convictions, and intentionally withheld his prior incidents of public
nudity. At the time of the evaluation, Blauvelt knew that Dr. Bassman would be
providing his assessment to relator as part of the disciplinary investigation.
Although Blauvelt ultimately fully disclosed his prior conduct to Dr. Bassman in a
supplemental evaluation, the board found—and we agree—that Blauvelt’s
omissions during his initial evaluation constitute an aggravating factor.
{¶ 12} As for mitigation, the board found that Blauvelt has a clean
disciplinary record, he had had a cooperative attitude toward the disciplinary
proceedings, he had submitted evidence of good character or reputation, other
penalties had been imposed for some of his misconduct, and he had expressed
sincere remorse. See Gov.Bar R. V(13)(C)(1), (4), (5), and (6).
{¶ 13} Blauvelt also demonstrated the existence of a qualifying mental
disorder. See Gov.Bar R. V(13)(C)(7). As noted above, three medical
professionals testified at Blauvelt’s disciplinary hearing: his psychiatrist, Michael
Miller, M.D.; his psychologist, Chris Modrall, Ph.D.; and Dr. Bassman, who had
evaluated Blauvelt for a potential sexual disorder. In 2005, Blauvelt was diagnosed
with bipolar disorder, and Dr. Miller has been treating him with medication since
2006. Dr. Modrall has been treating Blauvelt with psychotherapy periodically since
2011. Dr. Miller more recently diagnosed Blauvelt with alcoholism.
{¶ 14} According to Dr. Miller, a combination of Blauvelt’s bipolar
disorder, episodic alcohol abuse, and other personality factors contributed to cause
the misconduct in this case. Dr. Miller and Dr. Modrall testified that Blauvelt has
sustained periods of successful treatment for bipolar disorder with medication and
psychotherapy. However, because Blauvelt’s episodic alcohol abuse came to light
more recently, he has not yet been properly treated for alcoholism. Dr. Miller and
Dr. Modrall therefore recommended that Blauvelt undergo a chemical-dependency
evaluation to determine the best course of treatment for that affliction. Both Dr.
Miller and Dr. Modrall concluded that despite the mental and substance-use
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disorders, if Blauvelt obtains treatment for his issues with alcohol and continues his
treatment regimen for bipolar disorder, he will be fit to practice law.
{¶ 15} Dr. Bassman concluded that Blauvelt does not appear to have any
type of paraphilia, such as exhibitionism. In accord with the findings of Blauvelt’s
mental-health practitioners, Dr. Bassman concluded that Blauvelt’s misconduct in
this case was a result of his bipolar disorder and alcohol abuse and that he can
function as a lawyer as long as he continues with treatment for his mental disorder
and abstains from alcohol.
{¶ 16} For his part, Blauvelt admitted that although he has mostly managed
his bipolar disorder, his alcohol abuse—more specifically, his binge drinking—has
at times diminished his ability to moderate his behavior. Blauvelt testified that in
addition to continuing his treatment for bipolar disorder, he had abstained from
alcohol since June 2019, started attending Alcoholic Anonymous (“AA”) meetings,
and entered into a contract with the Ohio Lawyers Assistance Program (“OLAP”).
{¶ 17} In crafting its recommended sanction, the board found the facts in
Columbus Bar Assn. v. Linnen, 111 Ohio St.3d 507, 2006-Ohio-5480, 857 N.E.2d
539, the most similar to those here. In Linnen, an attorney shocked at least 30
different women by appearing before each of them naked and photographing their
reactions. The attorney also tapped or pinched some women’s buttocks. Id. at ¶ 3.
He later pleaded guilty to 53 misdemeanors, including multiple counts of sexual
imposition and public indecency. We found the existence of several aggravating
factors, including that the attorney had not genuinely acknowledged the wrongful
nature of his conduct or the trauma he had caused to his victims. Id. at ¶ 9, 23-24.
We also declined to find his purported sex addiction to be a mitigating factor,
suspecting that he had sought the diagnosis merely to raise it in his defense to the
disciplinary and criminal charges. Id. at ¶ 22. Based on those circumstances, we
indefinitely suspended him from the practice of law. Id. at ¶ 33.
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{¶ 18} The board found several key differences between the facts here and
those in Linnen that weigh in favor of a far less severe sanction in this case. Most
notably, Blauvelt established a mitigating mental disorder, demonstrated remorse,
and “genuinely appear[ed] committed to ongoing treatment.” The board also
observed that whereas Linnen had targeted female victims, Blauvelt did not appear
to have targeted anyone.
{¶ 19} Considering that none of Blauvelt’s clients were harmed by his
misconduct and nothing in the record indicates that his disorders—when
controlled—affect his ability to competently and ethically practice law, the board
accepted the parties’ proposed sanction of a stayed two-year suspension. The board
recommends conditioning the stay on Blauvelt’s abstaining from alcohol,
undergoing a chemical-dependency evaluation, following any directives from his
mental-health practitioners resulting from that evaluation, and serving a five-year
period of monitored probation to ensure that he continues his recovery and
maintains sobriety.
{¶ 20} “We have consistently recognized that ‘the goal of disciplinary
proceedings is not to punish the errant lawyer, but to protect the public.’ ”
Disciplinary Counsel v. Corner, __ Ohio St.3d __, 2020-Ohio-961, __ N.E.3d __,
¶ 21, quoting Toledo Bar Assn. v. Hales, 120 Ohio St.3d 340, 2008-Ohio-6201, 899
N.E.2d 130, ¶ 21. We have also previously explained that “we tailor the conditions
for staying a suspension to the causes of the attorney’s misconduct.” Disciplinary
Counsel v. Oberholtzer, 136 Ohio St.3d 314, 2013-Ohio-3706, 995 N.E.2d 217,
¶ 35. With those purposes in mind—and considering the unique and fairly
unprecedented circumstances of this case—we adopt the board’s recommended
sanction. The board’s recommended conditions are properly tailored to address the
causes of Blauvelt’s misconduct and ensure that he adheres to his treatment
regimens.
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Conclusion
{¶ 21} Scott Nicholas Blauvelt is hereby suspended from the practice of law
in Ohio for two years, with the suspension stayed in its entirety on the conditions
that Blauvelt (1) comply with his OLAP contract, (2) maintain full compliance with
his treatment plan as prescribed by his mental-health practitioners, (3) undergo a
chemical-dependency evaluation and follow any treatment or counseling plan
prescribed by his physician and mental-health practitioners as a result of that
evaluation, (4) continue to abstain from the use of alcohol, (5) serve and
successfully complete a five-year term of monitored probation pursuant to Gov.Bar
R. V(21) to ensure compliance with his treatment and recovery protocol, and (6)
refrain from further misconduct. If Blauvelt fails to comply with any of the
conditions of the stay, the stay will be lifted and he will serve the entire two-year
suspension. Costs are taxed to Blauvelt.
Judgment accordingly.
O’CONNOR, C.J., and FRENCH, FISCHER, DEWINE, DONNELLY, and
STEWART, JJ., concur.
KENNEDY, J., not participating.
_________________
Christopher J. Pagan, Bar Counsel, for relator.
Daniel J. Hurr, for respondent.
_________________
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