Office of Disciplinary Counsel v. Moore

804 N.E.2d 423, 101 Ohio St. 3d 261
CourtOhio Supreme Court
DecidedMarch 3, 2004
DocketNo. 2003-1120
StatusPublished
Cited by20 cases

This text of 804 N.E.2d 423 (Office of Disciplinary Counsel v. Moore) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Office of Disciplinary Counsel v. Moore, 804 N.E.2d 423, 101 Ohio St. 3d 261 (Ohio 2004).

Opinions

Per Curiam.

{¶ 1} Respondent, C. Michael Moore of Jackson, Ohio, Attorney Registration No. 0071174, was admitted to the Ohio bar in 1999. On December 9, 2002, relator, Disciplinary Counsel, filed a two-count complaint charging respondent with violations of the Code of Professional Responsibility. A panel of the Board of Commissioners on Grievances and Discipline heard the cause and made findings of fact, conclusions of law, and a recommendation.

{¶ 2} As to the first count, the panel found that respondent had been appointed in September 2001 to defend a 28-year-old woman, one year his junior, who had been charged with various traffic offenses, including operating a motor vehicle [262]*262under the influence. On the day of his client’s arraignment, respondent conferred with her for the first time in the courthouse library about the case. During their conversation, respondent intermittently commented on the size of his penis and on sexual positions in what he considered to be a flirtatious manner.

{¶ 3} Before the panel, respondent admitted that he had made very graphic remarks to his client about sexual positions women generally preferred. He also admitted having described the size of his penis as large enough to cause discomfort during sex. He denied, however, the client’s claims that he also touched her inappropriately and made a variety of other offensive remarks.

{¶ 4} The client felt shocked and violated by respondent’s unsolicited sexual remarks. She consulted her mother and employer about the incident, and on the advice of her employer’s attorney, she reported respondent’s conduct to the Vinton County Prosecuting Attorney and to relator. The prosecutor arranged for the client to secretly record the next conversation between her and respondent.

{¶ 5} That conversation took place in November 2001 in a courthouse hallway prior to a suppression hearing. After a brief exchange concerning when her case would be called, respondent again persisted in asking about his client’s sexual experiences and preferences, and his remarks were recorded. Upon learning of the client’s having reported him, respondent withdrew from the client’s case. Since then, respondent has not been assigned to represent a female defendant.

{¶ 6} With respect to the first count, the panel found, as stipulated by the parties, that respondent had violated DR 1-102(A)(5) (engaging in conduct prejudicial to the administration of justice), 1-102(A)(6) (engaging in conduct that adversely reflects on an attorney’s fitness to practice law), and 5-101(A)(l) (improperly accepting professional employment where the attorney’s personal interests may affect the exercise of professional judgment on a client’s behalf).

{¶ 7} As to the second count of misconduct, the panel found, again as stipulated, that respondent had also violated DR 1-102(A)(6) and 5-101(A)(l) by having an extramarital affair with a client he was representing in matters relating to the custody and care of her two small children. Respondent agreed to represent this client, who was only 22 at the time, in September 2000. He successfully defended the client against a criminal charge of domestic violence. They later consummated a consensual sexual relationship and continued to see each other for months afterward. For at least some of that time, respondent also continued to represent the client’s custody interests, and he conceded that he did not sufficiently advise his client of the potentially compromising effect that their relationship could have had on those interests.

{¶ 8} In recommending a sanction for this misconduct, the panel reviewed the mitigating and aggravating considerations listed in Section 10 of the Rules and [263]*263Regulations Governing Procedure on Complaints and Hearings Before the Board of Commissioners on Grievances and Discipline. As mitigating, the panel found that respondent had never before been the subject of disciplinary action and had cooperated fully in the disciplinary proceedings. The panel also considered the testimony of a county court judge, a municipal court judge before whom respondent regularly appeared, and the county prosecutor to whom the Count-I client had reported respondent’s misconduct. All were convinced that respondent would not repeat his misconduct, that he was otherwise a capable and professional practitioner, and that his services would be seriously missed if he were suspended from practicing law. The panel found respondent’s own expressions of sorrow and regret of particularly mitigating effect. Respondent apologized repeatedly at the hearing for his misconduct and the embarrassment he had caused his wife and other family members, his clients, and his profession. He assured the panel that he - could not be any sorrier for his actions and promised that they would never be repeated.

{¶ 9} The panel recommended the sanction suggested jointly by the parties: a one-year suspension, all stayed. But the panel added one year of probation following the suspension and added the following conditions to the stay: that respondent be required (1) to seek treatment and counseling at his own expense from a medical professional approved by the Ohio Lawyers Assistance Program (“OLAP”), (2) to authorize the medical professional to report periodically to OLAP about the results of his treatment program, and (3) to refuse appointments to defend female clients until such appointments are approved by the medical professional treating respondent.

{¶ 10} The board adopted the panel’s findings of misconduct but modified its recommendation. Because respondent’s misconduct was “directed toward vulnerable female clients” while he was representing them on family matters, the board recommended that respondent be suspended from the practice of law for six months, with no portion of the- suspension stayed.

{¶ 11} We agree that respondent violated DR 1-102(A)(5), 1-102(A)(6), and 5-101(A)(1) as found by the board. However, upon review, we find the panel’s recommendation to be the more appropriate sanction.

{¶ 12} In objections to the board’s recommendation, respondent cites Ohio precedent establishing that a public reprimand is the usual sanction for an attorney who engages in consensual romantic relations with a client during representation, provided that the client’s interests were not harmed by the affair. Discvplinary Counsel v. DiPietro (1994), 71 Ohio St.3d 391, 643 N.E.2d 1145; Disciplinary Counsel v. Paxton (1993), 66 Ohio St.3d 163, 610 N.E.2d 979; Disciplinary Counsel v. Ressing (1990), 53 Ohio St.3d 265, 559 N.E.2d 1359. But here, as relator argues, only the conduct alleged in Count II was consensual. [264]*264Respondent’s explicit advances toward the client in Count I were neither invited nor welcome. Moreover, both clients had expressed to respondent their concerns about retaining custody of their children, interests that the clients could have felt pressure to protect by acceding to respondent’s advances or that a romantic relationship with respondent could have compromised.

{¶ 13} The Supreme Court of Wisconsin has held that an attorney’s unsolicited advances toward a client warranted a 90-day suspension from the practice of law, explaining:

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Bluebook (online)
804 N.E.2d 423, 101 Ohio St. 3d 261, Counsel Stack Legal Research, https://law.counselstack.com/opinion/office-of-disciplinary-counsel-v-moore-ohio-2004.