Disciplinary Counsel v. Dugan ( 2024 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Dugan, Slip Opinion No. 2024-Ohio-5118.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2024-OHIO-5118DISCIPLINARY COUNSEL v. DUGAN.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Disciplinary Counsel v. Dugan, Slip Opinion No.
2024-Ohio-5118.]
Attorneys—Misconduct—Violation of the Rules of Professional Conduct—
Conditionally stayed one-year suspension.
(No. 2023-1095—Submitted July 23, 2024—Decided October 29, 2024.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2023-023.
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The per curiam opinion below was joined by FISCHER, DEWINE,
DONNELLY, STEWART, and DETERS, JJ. KENNEDY, C.J., concurred in part and
dissented in part and would impose a one-year suspension, with six months
conditionally stayed, in accordance with Disciplinary Counsel v. Bunstine, 2013-
Ohio-3681. BRUNNER, J., did not participate.
SUPREME COURT OF OHIO
Per Curiam.
{¶ 1} Respondent, Vincent A. Dugan Jr., of Columbus, Ohio, Attorney
Registration No. 0025982, was admitted to the practice of law in Ohio in 1983. He
acknowledges that while representing a vulnerable client pro bono in her divorce
and protection-order cases in 2022, he sent her a series of explicit and suggestive
text messages and repeatedly solicited sexual activity with her. Before a panel of
the Board of Professional Conduct, he admitted that his misconduct violated a
professional-conduct rule.
{¶ 2} After he and relator, disciplinary counsel, stipulated to all relevant
facts, misconduct, and aggravating and mitigating factors, the board found by clear
and convincing evidence that Dugan had committed the charged misconduct. The
board urges us to suspend Dugan from the practice of law for one year but stay his
suspension in its entirety on the condition that he commit no further misconduct. It
also proposes that he pay the costs of this proceeding. No objections have been
filed. For the reasons that follow, we adopt the board’s findings of misconduct and
recommended sanction.
I. DUGAN’S MISCONDUCT WITH HIS CLIENT
{¶ 3} Since this court admitted Dugan to the practice of law over four
decades ago, he has primarily practiced in the area of domestic relations. As part
of his practice, he usually takes on 10 to 15 cases pro bono per year.
{¶ 4} In August 2022, a judicial officer referred a client who was otherwise
unable to hire a lawyer to Dugan. He agreed to represent the client pro bono in her
pending divorce. He later explained that he had been moved to do so out of
sympathy because she had a long history of abuse in her romantic relationships.
{¶ 5} The day after he agreed to represent the client, Dugan began to
exchange text messages with her. Around midnight, after discussing some details
about a hearing to obtain a protection order, he sent her a series of lewd messages.
He told her about his sexual preferences and asked her what sex positions she
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preferred. Dugan admits that he sent this series of messages and other messages
thereafter to solicit a sexual relationship with the client.
{¶ 6} Over the following weeks, Dugan continued to solicit sexual activity
with his client. For example, several days after his initial overture, he sent her a
text message offering to give her a chest massage. A few days after that, he sent
her a text message saying that he was feeling “[r]eally horny” that night.
Throughout September and October, calling her “baby,” he repeatedly suggested
that she come over to his residence, overtly or implicitly urging her to have sex
with him.
{¶ 7} In mid-October, the client started accusing Dugan of ignoring her
because she had rejected his sexual advances. Dugan represents that up to that
point, he had no memory of many of the earlier text messages, claiming that he had
sent them while drunk. The parties have stipulated that the client decided to keep
Dugan as her counsel because his representation was pro bono and it appeared that
they were close to resolving her divorce.
{¶ 8} The client’s divorce was finalized on December 30. However, on
December 1, she filed a grievance with relator alleging that Dugan had made sexual
advances, tried to sexually assault her, and consistently berated and swore at her.
Relator sent Dugan a letter of inquiry in January 2023 concerning the grievance.
Dugan responded on March 7 with a 13-page letter discussing the history of his
representation of the client and explaining his perspective on the allegations in the
grievance. In the letter, he also denied attempting to commit sexual assault but
admitted to engaging in “sexual wordplay” with the client.
{¶ 9} In July, relator filed a complaint with the board. Dugan initially did
not respond to the complaint, so the board filed a certification of default in this
court. We ordered Dugan to show cause why we should not adopt the board’s
recommendation. He objected to the default, claiming that he had missed the
deadline to file an answer to the complaint because he had been hospitalized to
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undergo open-heart surgery. We sustained Dugan’s objection and granted him
leave to file an answer. 2023-Ohio-3773.
{¶ 10} Relator and Dugan submitted stipulations of fact, misconduct, and
aggravating and mitigating factors, along with 21 stipulated exhibits. The matter
proceeded to a hearing before a three-member panel of the board. The panel issued
a report finding by clear and convincing evidence that Dugan’s conduct violated
Prof.Cond.R. 1.8(j) (prohibiting a lawyer from soliciting or engaging in sexual
activity with a client unless a consensual sexual relationship existed between them
prior to the client-lawyer relationship) and recommending that we suspend him
from the practice of law for one year, fully stayed on the condition that he commit
no further misconduct. The board adopted the panel’s findings and
recommendations. We again ordered Dugan to show cause why we should not
adopt the board’s recommendation. Dugan did not file objections to the report or
any other response to the show-cause order. We adopt the board’s findings of
misconduct.
II. ASSESSING THE SANCTION
{¶ 11} When imposing sanctions for attorney misconduct, we consider all
relevant factors, including the ethical duties that the attorney violated, the
aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions
imposed in similar cases.
A. Dugan’s violations betrayed his client’s trust
{¶ 12} There is no doubt that Dugan’s series of text messages soliciting sex
from his client violated the ethical duty set forth in Prof.Cond.R. 1.8(j). While there
is no evidence of actual sexual contact in this case, the rule does not differentiate
between soliciting sex and having sex with a client. See Disciplinary Counsel v.
Russ, 2023-Ohio-1337, ¶ 20.
{¶ 13} Prof.Cond.R. 1.8(j) stems from the lawyer’s duty to act with
integrity and to guard carefully the client’s trust and confidence in her lawyer. See
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Prof.Cond.R. 1.8, Comment 17. Violations of this rule cause “inherent harm” to
the client’s trust in her lawyer, the attorney-client relationship, and, in turn, the
public perception of the legal profession. Disciplinary Counsel v. Sarver, 2018-
Ohio-4717, ¶ 29-31.
{¶ 14} The power imbalance between lawyer and client almost invariably
leads to an “exploitation of the lawyer’s fiduciary role.” Prof.Cond.R. 1.8,
Comment 17. Even the hint of a sexual advance to a client “‘“perverts the very
essence of the lawyer-client relationship.”‘ ” Disciplinary Counsel v. Bunstine,
2013-Ohio-3681, ¶ 31, quoting Disciplinary Counsel v. Moore, 2004-Ohio-734,
¶ 15, quoting In re Disciplinary Proceedings Against Gibson, 124 Wis.2d 466, 474-
475 (1985). Such sexual advances could raise in the client’s mind the “disturbing”
image of an attorney who expects “sex in lieu of fees.” Disciplinary Counsel v.
Krieger, 2006-Ohio-1062, ¶ 29. Plus, as here, the client might reasonably worry
that her failure to comply with her lawyer’s sexual advances might incentivize the
lawyer to advocate less zealously for her case. The lawyer’s emotional involvement
with the client may also impair the exercise of the lawyer’s independent
professional judgment. Prof.Cond.R. 1.8, Comment 17.
{¶ 15} And though harm to the client is of central concern, attorney
misconduct has the ancillary effect of undermining the public perception of the
legal profession. See Cincinnati Bar Assn. v. Hennekes, 2006-Ohio-3669, ¶ 13; see
also A Lawyer’s Creed, Gov.Bar R. Appendix V (“I recognize that my actions and
demeanor reflect upon our system of justice and our profession, and I shall conduct
myself accordingly.”). Because of the role lawyers play in good governance, it is
imperative that lawyers act above reproach to inspire the public’s trust in the law
and the legal system. An attorney’s lurid failure to act with integrity may catch the
media’s attention. The sanctions we impose therefore protect the public from the
attorneys who are unworthy of the trust and confidence essential to the attorney-
client relationship. See Disciplinary Counsel v. Agopian, 2006-Ohio-6510, ¶ 10.
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SUPREME COURT OF OHIO
{¶ 16} Dugan recognizes the wide-reaching negative results of his
misconduct. During his disciplinary hearing, Dugan stated that he was humiliated
when he read the messages that he had texted to his client while he was drunk. He
acknowledged that these text messages cast a pall on the client’s trust in him and
that she believed he was not zealously advocating for her interests and was trying
to get rid of her as a client after she refused his advances. He also realized that his
actions embarrassed the practice of law and undermined any positive legacy he had
hoped to create. Based on these admissions, we find that Dugan is aware of the
gravity of his misconduct, the importance of the duty he violated, and the necessity
for suitable sanctions.
B. Dugan’s aggravating and mitigating factors balance out
{¶ 17} In addition to Dugan’s misconduct, the parties stipulated and the
board found that three aggravating factors and three mitigating factors are present
in this case. As for aggravating factors, first, Dugan has previously been
disciplined. See Gov.Bar R. V(13)(B)(1). Over 15 years prior to the misconduct
at issue here, Dugan approved of a website that advertised his services with a
misleading claim and offered a coupon for a 10 percent discount on his first
consultation fee. He also employed a suspended lawyer as a paralegal without
registering her employment with relator. When confronted, Dugan immediately
removed the misleading claim and the coupon from the website. We concluded
that a public reprimand was the appropriate sanction for his misconduct. Columbus
Bar Assn. v. Dugan, 2007-Ohio-2077, ¶ 17. These prior disciplinary offenses lend
severity to Dugan’s current case, but the weight of those offenses is lessened
because Dugan committed them over 15 years ago and they do not involve the type
of misconduct that is presently at issue.
{¶ 18} Second, Dugan acted with a selfish motive. See Gov.Bar R.
V(13)(B)(2). He was motivated by a selfish desire for his client to appease his
prurient interests. Further, the timing of many of Dugan’s text messages to the
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January Term, 2024
client demonstrates a particularly perverse selfishness. He sent several messages
late at night, long after normal business hours. Some messages were interjected
into discussions about the client’s case or her sharing her concerns about her
estranged spouse. The timing of these messages shows Dugan’s selfishness at times
when his client needed his support as her lawyer. This factor therefore weighs
heavily against Dugan.
{¶ 19} Third, Dugan’s client was vulnerable at the time of his solicitation,
and Dugan knew this. See Gov.Bar R. V(13)(B)(8). She came to him seeking an
attorney who would represent her pro bono because she was unable to afford a
lawyer. He stipulated that despite her discomfort with the sexual nature of his
messages, she continued with his representation because he was representing her
pro bono and she was afraid that she would not be able to secure other
representation. Additionally, in his March 7, 2023 letter to relator, Dugan
explained that his client had a history of repeated abusive relationships and that her
description of that history was “the most amazing tale” that Dugan had ever heard
in his 40 years of practice. When he started soliciting her for sex, she had enlisted
his services in the midst of a contentious divorce from her third abusive husband.
She had claimed to be afraid of her then-husband. Although Dugan should have
been concerned about and cautious with such a vulnerable client, he instead sought
his own gain. We have often found attorneys taking advantage of clients’
vulnerable circumstances for the attorneys’ own sexual gratification to be cause for
relatively severe sanctions. See Sarver, 2018-Ohio-4717, at ¶ 17-22 (collecting
cases).
{¶ 20} But the board found three mitigating factors as well. First, without
prompting from either relator or the board, Dugan sought other interim
rehabilitation. See Gov.Bar R. V(13)(C)(8). At his disciplinary hearing, Dugan
explained that he began drinking heavily when his long-term partner suddenly died
in February 2021 after a drug overdose. When his client first started raising
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different allegations against him, Dugan claimed that he looked back over some of
his text messages and could not remember “a lot of them” because he was drunk at
the time he sent them. Dugan asserted that he took his client’s accusations and the
nature of his messages as a wake-up call. He credited the client with helping him
stop drinking alcohol.
{¶ 21} The shift in Dugan’s conduct has been dramatic. In addition to
independently stopping drinking in October 2022, Dugan has resumed attending
his church and sought out the support of friends and family. He also has instituted
new policies in his law practice, including keeping the door to his office open when
meeting with clients, scheduling all meetings with clients before 3:00 p.m. on
weekdays, and refraining from texting clients after 7:00 p.m. except to apprise a
client of a hearing when he had been unable to reach the client during the day.
{¶ 22} After over a year of sobriety, Dugan submitted to an assessment
conducted by the Ohio Lawyers Assistance Program (“OLAP”). In a letter to
relator, the clinical director of OLAP concluded that Dugan appeared “to be
maintaining successful sobriety” and had “established a robust support system
through his involvement in church and close relationships with family members.”
Given this progress, the clinical director concluded that “[t]here is no need for
further OLAP involvement at this time.”
{¶ 23} Second, Dugan made full and free disclosure to the board and
exhibited a cooperative attitude toward the disciplinary proceedings. See Gov.Bar
R. V(13)(C)(4). Although Dugan’s March 7, 2023 letter to relator hinted that he
partially blamed his client for his own actions, he never denied his own culpability.
And later, at his disciplinary hearing, he rescinded any potential blame of others
and instead blamed himself completely for his misconduct. He acknowledged that
his drinking had aggravated his indiscretion in sending the offending text messages,
but he never hid behind drinking as an excuse for his actions. Dugan has accepted
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responsibility for his misconduct and any sanctions that might follow. He has also
expressed genuine remorse for his misconduct, supported by measurable change.
{¶ 24} Third, Dugan submitted evidence of his good character and
reputation. See Gov.Bar R. V(13)(C)(5). Letters submitted on his behalf indicate
that he has consistently supported the legal community, his family, and his friends.
Though the death of his partner does not excuse his abuse of alcohol or his client’s
trust, the support of those who have known him for approximately 40 years or more,
plus his independently seeking rehabilitation, suggest that Dugan’s time of heavy
drinking was a dark blip in his career.
C. Similar cases suggest that the board’s proposed sanction is appropriate
{¶ 25} Our sanctions for inappropriate sexual comments or conduct
generally have ranged from a six-month to a two-year suspension, with part or all
of the suspension stayed, depending on the severity of the misconduct and the
presence of aggravating and mitigating factors. Bunstine, 2013-Ohio-3681, at ¶ 32
(collecting cases). We agree with the board that Dugan’s misconduct warrants a
suspension falling in the middle of this range.
{¶ 26} In reaching its recommended sanction, the board considered four
cases that each reflect misconduct similar to Dugan’s—that is, cases involving
soliciting sexual activity from a vulnerable client in which no sexual relationship
occurred.
{¶ 27} Three of these cases involved more egregious conduct and
proportionately harsher sanctions than what the board recommended here. In
Bunstine, the attorney suggested to a vulnerable client that he would come to her
home and that she should answer the door naked as payment for his legal fees. Id.
at ¶ 2. We suspended him for one year, with six months conditionally stayed. Id.
at ¶ 34. As in this case, Bunstine had previously been disciplined but had not shown
a pattern of sexual solicitation or activity with one or more clients, id. at ¶ 33. But
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while Dugan has been truthful in these disciplinary proceedings, Bunstine was not,
id. at ¶ 29. It is appropriate, then, to sanction Dugan less severely than Bunstine.
{¶ 28} In another case, the attorney exhibited a cooperative attitude toward
the disciplinary proceedings against him. Disciplinary Counsel v. Detweiler, 2013-
Ohio-1747, ¶ 12. But while Dugan’s misconduct primarily involved solicitating
his vulnerable client for over a month by sending lewd text messages, Detweiler
did not just solicit sex from his client through text messages but also escalated his
persistent unwelcome activity by sending her a nude picture of himself, id. at ¶ 7,
20. Additionally, we had reprimanded Detweiler not three years prior for
developing a sexual relationship with a client. Id. at ¶ 17, citing Disciplinary
Counsel v. Detweiler, 2010-Ohio-5033, ¶ 5. Dugan’s sanction should therefore be
less severe than the one-year suspension Detweiler received. See id. at ¶ 21.
{¶ 29} Finally, in Russ, the attorney sent multiple text messages soliciting a
sexual relationship with a vulnerable client. Russ, 2023-Ohio-1337, at ¶ 4, 6-8.
Unlike Dugan, Russ denied any wrongdoing until he learned that disciplinary
counsel had obtained his text messages, id. at ¶ 9-11. Russ also made false
statements in the course of the investigation to shift blame toward his client. Id. at
¶ 11. Additionally, while Dugan has intentionally sought support to avoid
offending again, we found that Russ required the intervention of a qualified
healthcare professional, id. at ¶ 21-22. The support network Dugan has established
assuages any concern that he remains a danger to the people of Ohio. See Agopian,
2006-Ohio-6510, at ¶ 10. It is therefore appropriate that he receive a sanction less
severe than Russ’s two-year suspension with one year conditionally stayed. See
Russ at ¶ 23.
{¶ 30} The board also considered one case that involved a sanction less
severe than it recommended here. The attorney in that case, during the course of a
recorded telephone conversation, asked a client about her breast size, suggested that
she should reward him by showing him her breasts, and solicited her to perform a
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sexual act on him. Akron Bar Assn. v. Miller, 2011-Ohio-4412, ¶ 6. Miller was
charged with a violation of Prof.Cond.R. 8.4(h) (prohibiting a lawyer from
engaging in conduct that adversely reflects on the lawyer’s fitness to practice law),
id. at ¶ 1—not with a violation of Prof.Cond.R. 1.8(j) like Dugan was. We
sanctioned Miller with a fully stayed six-month suspension and one year of
probation conditioned on continued successful medical treatment. Id. at ¶ 20.
Notwithstanding Dugan’s eventual contrition, because his misconduct continued
beyond a single conversation, his sanction should be more severe than Miller’s.
{¶ 31} Dugan sent his client a series of explicit and suggestive text
messages. He has never denied this. His comments were inappropriate and
particularly egregious given the client’s vulnerability. But while many other
disciplined attorneys have obfuscated or denied culpability, Dugan has accepted
responsibility for his wrongdoing. And while some disciplined attorneys continue
to offend until disciplinary action is taken against them, Dugan recognized that he
had a problem and amended his ways long before disciplinary proceedings were
brought against him. We agree with the board that Dugan’s honest testimony,
genuine remorsefulness for his misconduct, and measurable change render its
recommended sanction sufficient to protect the public.
III. CONCLUSION
{¶ 32} Accordingly, Vincent A. Dugan Jr. is suspended from the practice of
law in Ohio for one year with the entire suspension stayed on the condition that he
commit no further misconduct. If Dugan fails to comply with the condition of the
stay, the stay will be revoked and he will serve the full year-long suspension. Costs
are taxed to Dugan.
Judgment accordingly.
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Joseph M. Caligiuri, Disciplinary Counsel, and Karen H. Osmond and
Benjamin B. Nelson, Assistant Disciplinary Counsel, for relator.
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SUPREME COURT OF OHIO
Ulmer & Berne, L.L.P., and Alvin E. Mathews Jr., for respondent.
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