Disciplinary Counsel v. Owen

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Owen, Slip Opinion No. 2014-Ohio-4597.]
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. 2014-OHIO-4597DISCIPLINARY COUNSEL v. OWEN.
[Until this opinion appears in the Ohio Official Reports advance sheets,
it may be cited as Disciplinary Counsel v. Owen,
Slip Opinion No. 2014-Ohio-4597.]
Attorneys—Misconduct—Sexual relations with wife of client who attorney was
representing in death-penalty case—Lawyer who engages in sexual
relationship with client’s spouse during representation creates inherent
and impermissible conflict of interest—Two-year suspension, one year
stayed on conditions.
(No. 2013-1981—Submitted February 5, 2014—Decided October 22, 2014.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 2012-019.
_______________________
Per Curiam.
{¶ 1} Respondent, James David Owen of Columbus, Ohio, Attorney
Registration No. 0003525, was admitted to the practice of law in Ohio in 1979.
On April 6, 2012, relator, disciplinary counsel, filed a one-count complaint
SUPREME COURT OF OHIO
charging Owen with violations of the Code of Professional Responsibility1
alleging that Owen had engaged in misconduct in his representation of Robert
Caulley in a criminal matter. Specifically, relator alleged that Owen had had a
sexual relationship with Caulley’s wife while he represented Caulley in a
prosecution for aggravated murder with death-penalty specifications and other
offenses, including aggravated robbery.
{¶ 2} Owen stipulated to the material facts of relator’s complaint and
admitted that his conduct violated DR 5-101(A)(1) (prohibiting a lawyer from
accepting employment if the exercise of the lawyer’s professional judgment will
be or reasonably may be affected by the lawyer’s personal interests), 1-102(A)(5)
(prohibiting a lawyer from engaging in conduct that is prejudicial to the
administration of justice), and 1-102(A)(6) (prohibiting a lawyer from engaging in
conduct that adversely reflects on the lawyer’s fitness to practice law). The
parties stipulated that a two-year suspension is the appropriate sanction, but Owen
asked that a portion of the suspension be stayed.
{¶ 3} Owen and five other witnesses testified at a hearing before a panel
of the Board of Commissioners on Grievances and Discipline. The panel
concluded that Owen had violated the above rules and recommended that Owen
be suspended from the practice of law in Ohio for two years, with one year stayed
on condition that Owen fulfill the terms of his contract with the Ohio Lawyers
Assistance Program (“OLAP”) and commit no further misconduct. The board
adopted the panel’s findings of fact, conclusions of law, and recommended
sanction.
{¶ 4} Having thoroughly reviewed the record, we adopt the board’s
findings of fact, conclusions of law, and recommended sanction.
1
Relator charged Owen with misconduct under applicable rules for acts occurring before February
1, 2007, the effective date of the Rules of Professional Conduct, which superseded the
Disciplinary Rules of the Code of Professional Responsibility.
2
January Term, 2014
Misconduct
{¶ 5} Owen’s law practice consisted primarily of criminal defense,
including extensive experience with capital cases. In early January 1997, Owen
received a call from Robert Caulley’s mother-in-law telling him that Caulley had
recently confessed to killing his parents in an apparent robbery in 1994. The
Caulleys’ estate had been sizeable, and Robert’s confession nearly three years
after their deaths prompted their executor to threaten to try to recoup the portion
of the estate Robert had inherited. Caulley’s mother-in-law asked Owen to
research and investigate a defense of false confession should the executor file suit,
and Owen agreed to do that.
{¶ 6} As a result of his confession, Caulley was charged with two counts
of aggravated murder with death-penalty specifications and other offenses,
including aggravated robbery. Counsel was appointed to defend him in his
criminal case. In May 1997, the trial judge, who knew that Owen was working on
an aspect of the case, nullified Caulley’s indigency status, removed his court-
appointed lawyers, and designated Owen as his counsel in the criminal case.
Owen officially began representing Caulley, as his sole counsel, in the case in
mid-June 1997, and the trial began approximately three months later.
{¶ 7} In late June or early July 1997, Caulley’s wife relocated from
Texas to the Columbus area and immediately began working in Owen’s office,
assisting with various tasks associated with her husband’s case. Approximately a
week to ten days before the trial began, Owen and Caulley’s wife began a sexual
relationship that lasted throughout the trial and continued until late August or
early September 1998.
{¶ 8} Caulley’s trial began on September 12, 1997, and lasted through
October 20, 1997. A jury found him not guilty of both the aggravated-murder
charges and not guilty of the aggravated-robbery charge. The jury found him
guilty of the lesser offenses of voluntary manslaughter in the death of his father
3
SUPREME COURT OF OHIO
and noncapital murder in his mother’s death. Caulley was sentenced to 10 to 25
years’ imprisonment on the manslaughter charge and 15 years to life on the
murder charge, to be served consecutively. His conviction was affirmed on direct
appeal in 2002, State v. Caulley, 10th Dist. No. 97AP-1590 (Mar. 14, 2002), and
we declined his appeal. 96 Ohio St.3d 1467, 2002-Ohio-3910, 772 N.E.2d 1203.
Although Owen worked with Caulley’s appellate attorneys, he never told them
about his affair with Caulley’s wife.
{¶ 9} Owen told his family members about the affair shortly after it
ended in late summer 1998. At no point did Owen inform his client, Caulley, of
the affair. Instead, Caulley learned about it years later, long after he and his wife
were divorced, from his sister and another woman. Caulley assumed that the
affair had occurred posttrial, but in January 2011, his former wife told him that it
had begun before his trial and continued during and after the trial.
{¶ 10} In April 2011, the Ohio Public Defender called Owen to inform
him that Caulley would be filing a motion for a new trial based on Owen’s sexual
relationship with Mrs. Caulley. Owen admitted to his misconduct and agreed to
cooperate in that endeavor. Following that conversation, Owen provided the
public defender an affidavit detailing his misconduct that was later filed with
Caulley’s motion for a new trial. Following a hearing, at which Owen was not
called to testify, the court granted the motion. The state moved for leave to
appeal the trial court’s decision, but the motion was denied by the Tenth District
Court of Appeals, and that judgment was affirmed by this court on authority of
State v. Forrest, 136 Ohio St.3d 134, 2013-Ohio-2409, 991 N.E.2d 1124. 136
Ohio St.3d 325, 2013-Ohio-3673, 995 N.E.2d 227.
{¶ 11} On May 16, 2011, Owen reported his misconduct to relator, and on
January 19, 2012, he signed a five-year contract with OLAP. He began treatment
with a psychiatrist and psychologist for depression, anxiety, and a previously
diagnosed severe attention-deficit disorder (“ADD”).
4
January Term, 2014
{¶ 12} The board adopted these stipulated facts and found that Owen’s
conduct violated DR 5-101(A)(1), 1-102(A)(5), and 1-102(A)(6) as charged in the
complaint.
Sanction
{¶ 13} When imposing sanctions for attorney misconduct, we consider
relevant factors, including the ethical duties that the lawyer violated and the
sanctions imposed in similar cases. Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio
St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶ 16. In making a final
determination, we also weigh evidence of the aggravating and mitigating factors
listed in BCGD Proc.Reg. 10(B). Disciplinary Counsel v. Broeren, 115 Ohio
St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21.
{¶ 14} The board found two aggravating factors—a selfish motive and
harm to a vulnerable client. See BCGD Proc.Reg. 10(B)(1)(b) and (h). As
mitigating factors, the board found that Owen had no prior disciplinary record,
had provided full and free disclosure to relator and displayed a cooperative
attitude toward the disciplinary proceedings, and had a good character and
reputation aside from the charged misconduct. See BCGD Proc.Reg. 10(B)(2)(a),
(d), and (e).
{¶ 15} Owen explained at the disciplinary hearing that the affair came
about at a time in which he was representing Caulley in an intense and
complicated death-penalty case without the assistance of co-counsel. Although he
had known since 1993 that he had ADD and had attempted numerous medications
to treat that ailment, he was not taking any prescription medications as he
prepared for Caulley’s trial because his preferred medication had been found to be
lethal to some patients, and nothing else worked. He admitted that he had an
alcohol problem and suffered from depression, which, combined with the ADD,
not only impaired his judgment and contributed to the decision to start the affair,
but also were exacerbated by the stress of the affair.
5
SUPREME COURT OF OHIO
{¶ 16} Throughout the disciplinary process, Owen accepted full
responsibility for his misconduct. Although he told his family about the affair, he
testified that he did not tell his client because Mrs. Caulley claimed that she had
told her husband, her sister-in-law, and her mother. He explained that his focus
had been on winning the case, and he convinced himself at the time that because
he had done such a good job, the outcome would not have been different even had
he admitted the conflict of interest to the court. At his disciplinary hearing, Owen
acknowledged that this decision should have been made by the client and that his
analysis of the situation had been wrong because his client ultimately did get a
new trial.
{¶ 17} After Owen admitted the affair to his family, he began seeing a
psychiatrist. In 2001 he resumed taking the more effective (but potentially lethal)
medication to treat his ADD. When it was taken off the market in 2005, he was
once again left without an effective medication for his ADD. When the affair
became public, his stress began mounting, and he approached OLAP in 2011,
executed a five-year contract, and began seeing a psychiatrist and a psychologist.
He continues to see the psychologist twice a month. After the state public
defender’s inquiry into his conduct, Owen retained counsel and then wrote relator
reporting his misconduct. He provided assistance to Caulley’s legal team, who
succeeded in overturning Caulley’s convictions and securing his right to a new
trial.
{¶ 18} The panel heard testimony from Owen’s family therapist and
received letters from his psychiatrist and two psychologists, one of whom had
performed a neuropsychological assessment of Owen. These professionals
provided the clinical perspective to explain why Owen had engaged in an intimate
relationship with the wife of his client who was charged with a capital offense.
Two attorneys, a current judge, and a former judge testified to Owen’s good
6
January Term, 2014
character, and he submitted numerous letters attesting to his reputation for skill,
diligence, and integrity.
{¶ 19} We understand the effects that mental illness, alcoholism,
psychological impairments, and dysfunctional upbringings can have on a
practicing attorney, not to mention the stresses attorneys endure in their day-to-
day lives, both professional and personal. As debilitating as these can be to
practitioners, however, there are consequences when they lead to misconduct, and
attorneys will be held accountable. Owen has accepted full responsibility for his
misconduct. He acknowledges that he had ample time and opportunity to disclose
the affair to Caulley and later to Caulley’s appellate attorneys, yet he failed to do
so. He is deeply remorseful for his betrayal of his family, his client, and his
profession.
{¶ 20} The board recommends that Owen be suspended from the practice
of law for two years, with one year stayed on the conditions that he fulfill the
terms of his contract with OLAP and commit no further misconduct. The board
acknowledged the unusual circumstances presented by this case and noted that it
could find no analogous precedent in our prior decisions, though it did find some
guidance from other jurisdictions.
{¶ 21} A small body of law exists outside our jurisdiction regarding
lawyers who have sexual relations with the spouse of a client. But the parties
have not presented, nor have we found, any case law addressing the specific
situation presented here—where an attorney has engaged in sexual relations with
the spouse of a client while representing the client in a capital case.
{¶ 22} A California appellate court granted a writ of habeas corpus to a
criminal defendant who, after being convicted of first-degree murder and
conspiracy to commit murder, discovered that his defense attorney had
maintained a covert sexual relationship with the defendant’s spouse during his
first trial and through the guilt phase of the second trial. People v. Singer, 226
7
SUPREME COURT OF OHIO
Cal.App.3d 23, 275 Cal.Rptr. 911 (1990). But it appears that the conduct never
resulted in disciplinary action against the attorney. Id. at 34 (the attorney’s
former secretary found, copied, and took to the state bar love letters that the
client’s wife sent to the attorney, but received no response).
{¶ 23} In Lawyer Disciplinary Bd. v. Artimez, 208 W.Va. 288, 540 S.E.2d
156 (2000), a West Virginia lawyer with nearly 20 years of experience began an
intimate relationship with the wife of his personal-injury client near the time he
filed the client’s lawsuit. The wife, who had been the client’s girlfriend and driver
of the vehicle he occupied at the time of the accident, was a third-party defendant
in the action. Two months after the filing of the lawsuit, the client separated from
his wife, and the lawyer asked his partner to take over the case, telling both the
client and the partner that his heavy workload precluded him from continuing the
representation. When his partner asked him whether he was having an affair with
the client’s wife, the lawyer denied it, but three months later, the client discovered
the affair. In exchange for a cash settlement and waiver of his attorney fees, the
client signed an agreement promising not to report the lawyer to the Lawyer
Disciplinary Board. Despite this agreement, the client reported the lawyer’s
conduct to the board. The lawyer was charged with violating several rules,
including Rule 8.4(d) of the West Virginia Rules of Professional Conduct
(prohibiting conduct prejudicial to the administration of justice). The Supreme
Court of Appeals of West Virginia found that the attorney violated Rule 8.4(d) by
contracting with the client to cover up his unethical behavior. The court imposed
a public reprimand and an assessment of costs for that violation.
{¶ 24} With respect to the lawyer’s sexual relationship with his client’s
wife, however, the court noted that no rule directly prohibited an attorney from
engaging in a sexual relationship with the client’s spouse. Id. at 301. And while
the court found that the lawyer’s conduct “implicated” Rule 1.7(b), regarding
conflicts of interest between a lawyer and client, id., it found that the lawyer
8
January Term, 2014
“reasonably did not believe his representation of [the client] to be adversely
affected by [the] affair,” id. at 302, and “[g]iven the novelty of this charge and the
fact that lawyers are generally entrusted with resolving the conflicts of interest
which they inevitably encounter,” declined to impose further discipline based
upon the affair. Id. at 301.
{¶ 25} In In re Disciplinary Proceedings Against Gamino, 286 Wis.2d
558, 707 N.W.2d 132 (2005), an attorney was found to have violated Wisconsin’s
rules of professional conduct by engaging in sexual relations with two female
clients. One of the clients was dealing with drug and alcohol dependency and
facing multiple criminal charges and the loss of her children; the other was the
mother of a juvenile client. The Supreme Court of Wisconsin found that the
attorney’s conduct with the juvenile client’s mother violated Wis.S.Ct.R.
20:1.7(b), which at that time prohibited a lawyer from representing a client if the
lawyer’s own interests may materially limit that representation, unless the lawyer
reasonably believes that the representation will not be adversely affected and the
client consents in writing after consultation. The court further found that by lying
to disciplinary authorities about the nature of the relationship with the juvenile
client’s mother, the lawyer violated Wis.S.Ct.R. 20:3.3(a)(1) (prohibiting a lawyer
from knowingly making a false statement of fact or law to a tribunal). The court
further found that his affair with the other vulnerable client violated Wis.S.Ct.R.
20:1.8(k)(2) (now (j)) (prohibiting a lawyer from engaging in a consensual sexual
relationship with a client unless the relationship predates the representation). The
court found that this troubling pattern of misconduct warranted “significant
discipline” and suspended the attorney’s license to practice law for six months.
Id. at ¶ 56-57.
{¶ 26} In another Wisconsin case, In re Disciplinary Proceedings Against
Inglimo, 305 Wis.2d 71, 740 N.W.2d 125 (2007), the attorney’s misconduct
included two sexual relationships with the wife or girlfriend of a client, both of
9
SUPREME COURT OF OHIO
which involved having sex in the presence of the client. Id. at ¶ 7-8, 36-39, 71-
72. In a different representation, the attorney engaged in an improper substantial
social relationship with a divorce client’s wife (i.e., the opposing party in the
divorce proceeding). Id. at ¶ 21-25, 70. The court also found that the attorney
had committed several trust-account violations involving dishonesty and
misrepresentation, and that he had engaged in conduct that adversely reflected on
his fitness to practice by possessing marijuana and delivering it to and using it
with his clients. The court suspended Inglimo’s law license for three years based
on these ethical transgressions. Id. at ¶ 97.
{¶ 27} South Carolina has a number of court decisions in civil matters in
which attorneys were disciplined for engaging in sexual relationships with the
spouses of clients. In In re Anonymous Member of South Carolina Bar, 389 S.C.
462, 699 S.E.2d 693 (2010), the Supreme Court of South Carolina admonished an
attorney who engaged in a sexual relationship with a client’s wife and held that
such conduct constitutes a per se violation of S.C.Prof.Cond.R. 1.7. In In re
Munden, 348 S.C. 231, 559 S.E.2d 589 (2002), and In re Reynolds, 335 S.C. 165,
515 S.E.2d 927 (1999), the court publicly reprimanded two attorneys—one who
entered into an adulterous relationship with a client’s spouse and another who had
sex with a client’s wife on a single occasion, but also entered into a business
relationship with the client without making required disclosures. And in In re
Hawkins, 320 S.C. 57, 463 S.E.2d 92 (1995), the court suspended an attorney
from the practice of law for six months for accepting employment as vice
president and general counsel of a company owned by his paramour’s husband
and then giving the husband legal advice that proved detrimental to the husband’s
financial interests in his ensuing divorce. The court held that by these actions, the
lawyer violated rules prohibiting conflicts of interest and dishonesty, deceit, and
misrepresentation.
10
January Term, 2014
{¶ 28} And in at least one jurisdiction, an attorney has been disciplined
for making sexual advances to a client’s spouse in a telephone conversation. See
People v. Bauder, 941 P.2d 282 (Colo.1997) (publicly censuring attorney who
solicited prostitution during telephone call with wife of his client in dissolution of
marriage).
{¶ 29} Our Rules of Professional Conduct do not specifically address the
subject of a lawyer having sexual relations with the spouse of a client. As in these
other jurisdictions, however, we find that a lawyer’s sexual relationship with the
spouse of a current client creates an inherent conflict of interest. This conflict of
interest compromises the relationship of trust and confidence between the attorney
and client. Artimez, 208 W.Va. at 300, 540 S.E.2d 156; In re Anonymous, 389
S.C. at 465-466, 699 S.E.2d 693. An intimate relationship of this nature
necessarily implicates our rules governing the acceptance or continuation of legal
representation when the lawyer’s ability to exercise independent professional
judgment on the client’s behalf may be compromised, see DR 5-101(A)(1) (for
conduct occurring before February 1, 2007), or if there is a substantial risk that
the lawyer’s ability to represent the client will be materially limited by the
lawyer’s responsibilities to a third person or by the lawyer’s own personal
interests, see Prof. Cond.R. 1.7(a)(2) and (b) (for conduct occurring on or after
February 1, 2007).
{¶ 30} As to attorneys’ sexual relationships with clients, “[w]e have
consistently disapproved of lawyers engaging in sexual conduct with clients
where the sexual relationship arises from and occurs during the attorney-client
relationship.” Cleveland Bar Assn. v. Kodish, 110 Ohio St.3d 162, 2006-Ohio-
4090, 852 N.E.2d 160, ¶ 66 (citing cases). And in the context of representing a
client in a criminal matter, we have emphasized:
11
SUPREME COURT OF OHIO
The client’s reliance on the ability of her counsel in a crisis
situation has the effect of putting the lawyer in a position of
dominance and the client in a position of dependence and
vulnerability. The more vulnerable the client, the heavier is the
obligation upon the attorney not to exploit the situation for his own
advantage. Whether a client consents to or initiates sexual activity
with the lawyer, the burden is on the lawyer to ensure that all
attorney-client dealings remain on a professional level.
Disciplinary Counsel v. Booher, 75 Ohio St.3d 509, 510, 664 N.E.2d 522 (1996).
We see no reason to deviate from these principles when the sexual conduct is with
the spouse of a client rather than the client, for the vulnerability of the client and
the betrayal of trust are the same.
{¶ 31} The defendant in a criminal matter is particularly vulnerable, and
especially so in a capital case, in which the client’s life is at risk. The defendant’s
spouse in such a case is also very vulnerable. The sexual relationship intrudes into
the marriage, subjects the client to a double betrayal by the spouse and by the
lawyer, destroys the trust essential to the attorney-client relationship, erodes
public confidence in the integrity of the legal profession, and undermines the
lawyer’s loyalty to the client. In granting a writ of habeas corpus to a man
convicted of first-degree murder, whose wife had engaged in a sexual relationship
with his attorney, a California appellate court recognized:
[T]he relationship here between defense counsel and defendant’s
wife deprived defendant of his constitutional right to the
“undivided loyalty and effort” of his attorney. The validity of our
adversarial system depends upon the guaranty of this “undivided
loyalty and effort” for every criminal defendant. Given the instant
12
January Term, 2014
facts, a defense attorney, in the extreme, might be influenced to see
his client convicted and imprisoned so that the affair can continue
or remain undiscovered. More subtle influences could arise where
the wife is a potential witness in the case * * *. Reluctance to call
or engage in abrasive confrontation with a witness could
jeopardize a case as easily as reluctance to vigorously oppose
counsel on the other side. The attorney could be tempted to avoid
calling a witness who might impugn his lover’s integrity or
implicate him or her in the case. Also, it is logical to
speculate* * * that a defense attorney might forego trial strategies
that would impose a costly burden on his lover. In other words,
defense counsel might “pull his punches.” Any of these
considerations could jeopardize the duty of undivided loyalty owed
the client.
(Citation omitted.) People v. Singer, 226 Cal.App.3d at 40, 275 Cal.Rptr. 911.
{¶ 32} We agree that the lawyer who engages in a sexual relationship with
a client’s spouse during the representation creates an inherent and impermissible
conflict between the interests of the lawyer and those of the client. This conflict
violates the client’s constitutional right to the effective assistance of counsel, id.,and undermines public confidence in the criminal justice system. Therefore, we
find that Owen’s conduct in this matter necessarily violates DR 5-101(A)(1), 1-
102(A)(5), and 1-102(A)(6).2
2
As noted earlier, relator charged Owen with violations of the Disciplinary Rules of the Code of
Professional Responsibility because his conduct occurred before February 1, 2007, the effective
date of the Rules of Professional Conduct, which superseded the Code of Professional
Responsibility. The conduct portrayed in this case is now regulated by Prof.Cond.R. 1.7(a)(2)
(prohibiting representation if a lawyer’s personal interests will materially limit his ability to carry
out appropriate action for the client), 1.7(b) (prohibiting the continued representation of a client if
a conflict of interest would be created, unless the affected client gives informed consent in
13
SUPREME COURT OF OHIO
{¶ 33} The parties have stipulated and the board has found that Owen has
no prior disciplinary record, that he provided free disclosure to relator during the
investigation and has displayed a cooperative attitude toward the disciplinary
proceedings, and that he has demonstrated his good character and reputation. The
record contains numerous attestations from attorneys, members of the community,
and judges, including a letter from the founder of an organization whose mission
is to free from prison those who have been falsely convicted—a cause to which
Owen has dedicated a substantial amount of time.
{¶ 34} In light of these findings, the case law discussed above, and
Owen’s 35-year career representing underserved populations, we believe that the
board’s recommended sanction—a two-year suspension, with the second year
stayed on the conditions that Owen fulfill the terms of his contract with OLAP
and commit no further misconduct—will adequately protect the public from
future harm.
{¶ 35} Accordingly, we suspend James David Owen for two years, with
the second year stayed on the conditions that he fulfill his contract with OLAP
and engage in no further misconduct. If Owen fails to comply with the conditions
of the stay, the stay will be lifted, and he will serve the full two-year suspension.
Costs are taxed to Owen.
Judgment accordingly.
PFEIFER, O’DONNELL, LANZINGER, KENNEDY, FRENCH, and O’NEILL, JJ.,
concur.
O’CONNOR, C.J., dissents and would impose an indefinite suspension.
__________________
writing), 8.4(d) (prohibiting a lawyer from engaging in conduct that is prejudicial to the
administration of justice), and 8.4(h) (prohibiting a lawyer from engaging in conduct that
adversely reflects on the lawyer’s fitness to practice law).
14
January Term, 2014
Scott J. Drexel, Disciplinary Counsel, and Joseph M. Caligiuri, Chief
Assistant Disciplinary Counsel, for relator.
Kegler, Brown, Hill & Ritter, Geoffrey Stern, and Rasheeda Khan, for
respondent.
__________________
15