Akron Bar Assn. v. Miller ( 2011 )

[Cite as Akron Bar Assn. v. Miller, 130 Ohio St.3d 1, 2011-Ohio-4412.]
AKRON BAR ASSOCIATION v. MILLER.
[Cite as Akron Bar Assn. v. Miller, 130 Ohio St.3d 1, 2011-Ohio-4412.]
Attorneys—Misconduct—Sexual remarks to client—Prof.Cond.R. 8.4(h)—
Conduct adversely reflecting on fitness to practice law—Six-month
suspension, all stayed, on conditions.
(No. 2011-0694—Submitted June 21, 2011—Decided September 7, 2011.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 10-073.
__________________
Per Curiam.
{¶ 1} Relator, Akron Bar Association, filed a complaint against E. Earl
Miller, Attorney Registration No. 0077426, for violating the Rules of Professional
Conduct, specifically Prof.Cond.R. 8.4(h) (forbidding conduct that adversely
reflects on the lawyer’s fitness to practice law). The complaint arose from a
grievance filed by a client of Miller’s who had recorded a telephone conversation
in which the respondent made inappropriate and unprofessional statements of a
sexual nature to the client. The parties stipulated to the facts and to a sanction of
public reprimand. A panel appointed pursuant to Gov.Bar R. V(6)(D)(3)
conducted a hearing on February 15, 2011, at which an employee of the bar
association, the respondent, the grievant, and a therapist who is treating the
respondent testified. Based on the stipulations, the testimony, and the exhibits
(including the tape of the telephone call at issue), the panel recommended a six-
month suspension, stayed, and one year of probation as a sanction for the
respondent. The Board of Commissioners on Grievances and Discipline reviewed
the panel’s recommendation and adopted the recommended sanction. We concur.
SUPREME COURT OF OHIO
Factual Background
{¶ 2} The facts in this case have been stipulated by the parties and formed
the subject of testimony at the hearing.
{¶ 3} On November 23, 2009, respondent was appointed by the Summit
County Court of Common Pleas, Domestic Relations Division, to represent the
client in defending against a show-cause order. The show-cause order required
the client to show why she should not be held in contempt for failing to make
court-ordered child-support payments. Respondent had no previous acquaintance
with the client before his appointment as her attorney.
{¶ 4} Respondent met with the client at his office twice, first on December
10, 2009, and next on January 15, 2010. In a telephone conference on January 21,
2010, the client informed respondent that she had obtained a new job, an event
that would be significant in the show-cause proceedings. On January 29, 2010,
respondent filed a motion for continuance of a hearing in the show-cause case on
the grounds that the need to appear in court on February 9 might jeopardize the
client’s new employment.
{¶ 5} Sometime prior to February 2, 2010, the respondent and the client
agreed that the best time for respondent to contact the client by telephone would
be in the early morning when she was arriving home from work. On February 2,
respondent called the client at about 6:15 a.m. Based on an earlier suggestion
made by respondent about taping conversations, the client began recording the
call partway through because she felt uncomfortable about the time respondent
was calling and the fact that he was talking about matters other than the case. A
copy of the recorded conversation on tape was offered as an exhibit at the hearing,
and the parties stipulated to its authenticity.
{¶ 6} During the recorded portion of the call, which lasted approximately
four minutes, respondent asked the client about her breast size, and he stated that
she should show him her breasts as a reward, given that he was performing a great
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deal of work for her for little compensation. Respondent further suggested that
the client perform oral sex on him. Toward the end of the call, respondent
returned the discussion to matters legitimately related to the legal representation.
{¶ 7} At no time did the respondent engage in any physical sexual activity
with the client.
Disciplinary Proceedings
{¶ 8} The client submitted her grievance to the Akron Bar Association in
early March 2010. On March 26, 2010, respondent moved to withdraw as counsel
for his client in the contempt case, and the domestic relations court granted the
motion on April 2, 2010.
{¶ 9} The Akron Bar Association filed its complaint against respondent
with the Board of Commissioners on Grievances and Discipline on August 16,
2010, and the case went to hearing before the panel on February 15, 2011. The
case was submitted on stipulations, exhibits, and the testimony of four witnesses.
{¶ 10} An Akron Bar Association employee described the process by
which the recording of respondent’s conversation on the client’s cell phone was
re-recorded onto audiotape. Thereafter, the employee prepared a written
transcription of the conversation.
{¶ 11} The client testified that she was surprised by the early call on
February 2, 2010, and that she began to record it because the respondent told her
he was just getting out of bed, which made her uncomfortable, and because he
was not discussing her case. She testified that receiving the call was “like being
raped without being touched” and that she felt as though she were reduced to
mere property.
{¶ 12} The respondent testified that in defending the client against child-
support contempt, he urged her both to stay out of prison and get a job, and he
gave her some leads for jobs. His representation drew him into other cases in
which the client was a party. Respondent tried to get the client’s driver’s license
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restored, which would enhance her ability to hold a job. Respondent also filed a
motion for continuance of a hearing date in order to allow the client to keep
working at her job. Respondent characterized his statements during the February
2 telephone call as “absolutely sickening,” an “abomination,” and
“reprehensible.” Respondent stated that “no one should be treated” the way he
had treated the client.
{¶ 13} Respondent is middle-aged and obtained his law license in 2004.
He is in his second marriage and has two grown children. Respondent has been
under treatment for depression, attention-deficit disorder, and diabetes for a
number of years. Respondent takes medications for those conditions, and from
mid-January to mid-March 2010, respondent failed to fill his prescriptions and
went without his medication. The absence of medication made respondent
anxious and more depressed, and he was “short and curt” with others. According
to the respondent, the lack of medication and his resentment at the client’s
perceived ingratitude for his efforts, rather than sexual desire, caused his improper
behavior. Respondent began consulting with therapist Jeffrey Durr in March
2010. Respondent said that Durr has worked with him to gain perspective
regarding his perfectionist tendencies.
{¶ 14} The panel received testimony from Durr, a mental-health therapist
and licensed clinical counselor. Durr met with the respondent for an initial
counseling session on March 29, 2010, and by the time of the hearing had had 23
sessions with him. Durr testified that the respondent came in an anxious and
depressed state and that he did not mention the grievance until May 2010. Durr
stated that the respondent was “overgiving” and “raising the bar” in the sense that
he put too much pressure on himself. Respondent also experienced resentment
when others did not respond with gratitude for his efforts, including his clients.
Durr opined that such resentment, together with the withdrawal of medications,
was the basis for the respondent’s improper conduct in this case. Durr also stated
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January Term, 2011
that he believed respondent’s assertion that respondent had no desire to be with
the client in a physical sense. Durr stated that respondent understands the
impropriety of what he did and that he has the tools to “stay centered” and avoid
such misconduct in the future.
{¶ 15} As mitigating factors pursuant to Section 10(B)(2) of the Rules and
Regulations Governing Procedure on Complaints and Hearings Before the Board
of Commissioners on Grievances and Discipline (“BCGD Proc.Reg.”), the parties
stipulated that respondent had no prior disciplinary record, that he freely disclosed
and adopted a cooperative attitude during the proceedings, and that he submitted
character evidence in his favor. BCGD Proc.Reg. 10(B)(2)(a), (d), and (e).
Additionally, the panel found a diagnosed and treated mental illness that
contributed to the cause of the misconduct as a mitigating factor pursuant to
BCGD Proc.Reg. 10(B)(2)(g).
{¶ 16} As aggravating factors, the panel identified respondent’s selfish
motive and the client’s vulnerability with resulting harm to the client. BCGD
Proc.Reg. 10(B)(1)(b) and (h). The panel found that respondent had violated the
trust he owed the client by deliberately trying to hurt and humiliate her in order to
make himself feel better.
Disposition
{¶ 17} The parties stipulated to a public reprimand as a sanction for the
respondent for violations of Prof.Cond.R. 8.4(h). Despite the stipulation, the panel
recommended a six-month suspension, stayed, with one year of probation
conditioned on continued successful treatment by Durr and respondent’s regular
physician. The board agreed with the panel recommendation, and the respondent
has not objected. We concur with the board.
{¶ 18} Crucial to the question of what sanction to apply is the precise
nature of respondent’s misconduct. Ohio attorneys have a duty to refrain from
soliciting or engaging in sexual activity with a client unless a consensual sexual
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relationship existed between them when the client-lawyer relationship
commenced. Prof.Cond.R. 1.8(j). Even before the adoption of the Rules of
Professional Conduct, we consistently disapproved of lawyers engaging in sexual
conduct with clients where the sexual relationship “ ‘arises from and occurs
during the attorney-client relationship,’ ” and such misconduct “ ‘warranted a
range of disciplinary measures depending on the relative impropriety of the
situation, including actual suspension from the practice of law.’ ” Butler Cty. Bar
Assn. v. Williamson, 117 Ohio St.3d 399, 2008-Ohio-1196, 884 N.E.2d 55, ¶ 8,
quoting Cleveland Bar Assn. v. Kodish, 110 Ohio St.3d 162, 2006-Ohio-4090,
852 N.E.2d 160, ¶ 66. In extreme cases, disbarment was held to be warranted.
Disciplinary Counsel v. Sturgeon, 111 Ohio St.3d 285, 2006-Ohio-5708, 855
N.E.2d 1221 (multiple instances of sexual conduct with clients, combined with
deception, dishonesty, and lack of remorse). On the other hand, when a
consensual relationship with a client did not actually compromise the client’s
interests, a public reprimand has sometimes been the sanction. Disciplinary
Counsel v. Detweiler, 127 Ohio St.3d 73, 2010-Ohio-5033, 936 N.E.2d 498;
Allen Cty. Bar Assn. v. Bartels, 124 Ohio St.3d 527, 2010-Ohio-1046, 924 N.E.2d
833.
{¶ 19} The case before us does not charge a violation of Prof.Cond.R.
1.8(j), but rather that respondent engaged in conduct that adversely reflected on
his fitness to practice law in contravention of Prof.Cond.R. 8.4(h). The improper
conduct consists of statements by telephone in the nature of sexual advances from
the attorney to the client. The case shows a single instance of such misconduct,
no actual sexual relationship, no associated misconduct, remorse on the part of the
respondent, and ongoing medical and psychological treatment. In evaluating the
evidence, the panel noted that the “respondent asserts anger rather than sexual
gratification as the motivations for his inappropriate comments” and concluded
that “[t]here is no evidence, other than the words he used, that this is not true.”
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But although the misconduct in this case did not involve an actual sexual
relationship, it did involve a violation of the client’s trust and a deliberate (and
successful) attempt to demean her by exploiting her vulnerabilities. The cases
involving consensual sexual conduct are therefore not on point.
{¶ 20} We adopt the recommendation of the board and order that
respondent be suspended from the practice of law for six months. The entire
suspension will be stayed on the conditions that respondent serve a one-year
period of probation pursuant to Gov.Bar R. V(9) and that he continue successful
treatment by his doctor and his therapist during the probation period. If
respondent fails to comply with these conditions, the stay will be lifted, and
respondent shall serve the six months’ actual suspension followed by a one-year
period of probation. Costs are taxed to respondent.
Judgment accordingly.
O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
__________________
James Campbell, for relator.
Buckingham, Doolittle & Burroughs, L.L.P., and Peter T. Cahoon, for
respondent.
______________________
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