William Jeffrey Detweiler “of Akron, Ohio . . . was admitted
to the practice of law in Ohio in 1987.” Disciplinary
Counsel v. Detweiler, __ N.E.2d __, 2013 WL 1831782 (Ohio Supreme Court
2013). In October 2010, the Ohio
Supreme Court, “publicly reprimanded Detweiler for engaging in an improper
sexual relationship with his client.” Disciplinary Counsel v. Detweiler, supra.
In Ohio, as in many, if not all, states, the state Supreme
Court is in charge of disciplining attorneys who violate the state’s rules of professional conduct. If you are interested,
you can read about the organizations and procedures Ohio uses for this purpose
here. And you can find a flow chart that explains how the system works here.
Getting back to Detweiler, on July 26, 2011 the Court’s Office of Disciplinary Counsel charged him “with engaging in conduct
that adversely reflects on his fitness to practice law by soliciting a client
for sexual favors and continuing to represent the client despite the
substantial risk that his own personal interests conflicted with those of the
client.” Disciplinary Counsel v.
Detweiler, supra.
The “parties
submitted a consent-to-discipline agreement, in which they stipulated that
Detweiler had committed the charged misconduct and that a six-month, fully
stayed suspension was the appropriate sanction for that misconduct.” Disciplinary
Counsel v. Detweiler, supra. A “panel of the Board of Commissioners on Grievances and Discipline recommended that the agreement be adopted,” but the
full Board “rejected it and remanded the matter for further proceedings.” Disciplinary Counsel v. Detweiler, supra.
On remand, the panel reheard the matter and again recommended
Detweiler “receive a six-month, fully stayed suspension for his misconduct.” Disciplinary Counsel v. Detweiler, supra. But after “noting the nonconsensual and
unwelcome nature of Detweiler's advances,” it also recommended “he be suspended
for one year, all stayed on the conditions that he commit no further
misconduct, submit to an evaluation by the Ohio Lawyers Assistance Program” and
“comply with any treatment recommendations.” Disciplinary Counsel v. Detweiler, supra.
When the Board reviewed this, it accepted the
panel’s “findings of fact and conclusions of law” but because it found “the
client felt trapped because she could not afford to discharge Detweiler and
retain new counsel,” the Board “recommended he be suspended for one year with
six months stayed on the conditions recommended by the panel.” Disciplinary
Counsel v. Detweiler, supra.
Detweiler appealed the Board’s “increased sanction” to the
Ohio Supreme Court, asking it “to adopt the one-year, fully stayed suspension
recommended by the panel.” Disciplinary Counsel v. Detweiler, supra. And that brings us to what he allegedly did.
According to this opinion, in June of 2007,
a former client paid Detweiler a $3,500
retainer to handle her divorce. After filing the divorce complaint, Detweiler
began to send the client text messages of a personal nature. His initial texts
appeared to be harmless inquiries about the client's well-being and Cleveland
Browns football. They later included social invitations, which progressed into
comments of a sexual nature.
Detweiler texted the client about her
clothing and how it made him feel sexually, and indicated that he wanted to have
sex with her. He continued `sexting’ the client and admits that sometime
between November 2007 and January 2008 he sent her a nude picture of his lower
body in a state of sexual arousal.
The client did not initially make her
discomfort known to Detweiler, but following an early 2008 text message in
which he asked her to have oral sex with him, she sent him a text message
rejecting his solicitation.
Disciplinary Counsel
v. Detweiler, supra.
In the grievance the client subsequently filed, she stated
that when Detweiler
sent her his nude photograph, she had
already spent $10,000 in fees and expenses and could not afford to retain new
counsel. Therefore, she continued his representation and tried to avoid his
sexual advances until September 2008, when she voluntarily dismissed her
complaint for divorce after temporarily reconciling with her husband. At no
time did the client have sex with Detweiler or even meet with him socially.
Disciplinary Counsel
v. Detweiler, supra.
The opinion then notes that the “parties stipulated” and the
Board found that Detweiler’s
conduct violated 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), 1.8(j)
(prohibiting a lawyer from soliciting or engaging in sexual activity with a
client unless a consensual sexual relationship existed prior to the
client-lawyer relationship), and 8.4(h) (prohibiting a lawyer from engaging in
conduct that adversely reflects on the lawyer's fitness to practice law).
Disciplinary Counsel
v. Detweiler, supra. (You can find
the rules cited above here.)
The Supreme Court adopted “these findings of fact and
misconduct.” Disciplinary Counsel v. Detweiler, supra. That meant the only issue
it needed to address was the sanction imposed on Detweiler.
The court began its analysis of that issue by explaining
that when it imposes 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, 775 N.E.2d 818 (Ohio Supreme Court
2002). In making a final determination,
we also weigh evidence of the aggravating and mitigating factors listed in BCGD
Proc. Reg. 10. Disciplinary Counsel v. Broeren, 115 Ohio St.3d
473, 875 N.E.2d 935 (Ohio Supreme Court 2007).
Disciplinary Counsel
v. Detweiler, supra.
BCGD refers to the Ohio Board of Commissioners on Grievances
and Discipline’s Rules and Regulations, § 10 of which you can find here. It sets out “guidelines for imposing lawyer
sanctions.” More specifically, it sets
out these particular aggravating factors:
(a) prior disciplinary offenses;
(b) dishonest or selfish motive;
(c) a pattern of misconduct;
(d) multiple offenses;
(e) lack of cooperation in the
disciplinary process;
(f) submission of false evidence, false
statements, or other deceptive practices during the disciplinary process;
(g) refusal to acknowledge wrongful
nature of conduct;
(h) vulnerability of and resulting harm
to victims of the misconduct;
(i) failure to make restitution.
BCGD § 10. The factors above do “not control the Board's
discretion, but may be considered in favor of recommending a more severe
sanction”. BCGD § 10.
In reviewing Detweiler’s appeal, the Supreme Court noted
that the parties had stipulated
that the client harmed by Detweiler's
misconduct was vulnerable. See BCGD Proc. Reg. 10(B)(1)(h). The
board found not only that the conduct caused harm to a vulnerable client, but
that Detweiler had acted with a selfish motive and had also engaged in a
pattern of misconduct including the conduct at issue in this case and in his
previously sanctioned, though subsequent, conduct. See BCGD
Proc.Reg. 10(B)(1)(b), (c), and (h).
The only mitigating factor stipulated
by the parties and found by the board is Detweiler's cooperative attitude
toward the disciplinary proceedings. See BCGD Proc.Reg.
10(B)(2)(d). But the board also noted Detweiler's expressed remorse and his
acknowledgment of the severity of his misconduct.
Disciplinary Counsel
v. Detweiler, supra.
The court noted that while Detweiler testified (presumably
at one or more hearings) that “he had obtained marital counseling, he has
not obtained any individual counseling to address the issues underlying his
inappropriate conduct toward his female clients.” Disciplinary
Counsel v. Detweiler, supra. It also
noted that Detweiler challenged the
[v]alidity of its finding that the affected client was financially
vulnerable and felt compelled to continue his representation despite his sexual
overtures. . . . [H]e asserts the client was not financially tied to him,
because the domestic relations court ordered her husband to pay the full amount
of her fees and costs during the pendency of the divorce.
Disciplinary Counsel
v. Detweiler, supra. The Supreme
Court, though, found
[n]othing in the record supports this assertion. And
regardless of who would ultimately bear the responsibility for paying the client's
legal fees, the client `felt completely trapped’ and unable to afford to hire a
new attorney, having already expended more than $10,000 for Detweiler's
representation.
Disciplinary Counsel
v. Detweiler, supra.
It also noted that it has
publicly reprimanded attorneys,
including Detweiler, for developing sexual relationships with clients when the
affairs are legal and consensual and have not compromised the client's
interests. . . . We have imposed a greater sanction for such
conduct when the attorney had a prior disciplinary record at the time of his
offense. . . .
In Toledo
Bar Assn. v. Burkholder, 109 Ohio St.3d 443, 848 N.E.2d 84 (Ohio
Supreme Court 2006), we imposed a six-month, conditionally stayed suspension
for an attorney who made inappropriate sexual advances toward a client.
In Disciplinary Counsel v. Moore, 101 Ohio St.3d 261, 804
N.E.2d 423 (Ohio Supreme Court 2004), we imposed a one-year, fully stayed
suspension and two years of probation for an attorney who had made unsolicited,
unwelcome, and inappropriate sexual comments to one client and had engaged in
consensual sexual relations with another client.
In
more extreme cases, we have indefinitely suspended or permanently disbarred
attorneys who have made unwelcome sexual advances toward their clients that
included unwelcome physical contact. See, e.g., . . . Disciplinary
Counsel v. Sturgeon, 111 Ohio St.3d 285, 855 N.E.2d 1221 (Ohio Supreme
Court 2006) (permanently disbarring an attorney who solicited and received oral
sex from one client, touched another client in an unwanted sexual manner and
solicited sex in exchange for a reduced legal fee, and exposed himself after
soliciting oral sex from a third client).
Disciplinary Counsel
v. Detweiler, supra.
The Supreme Court then noted that
[t]hose cases may not present conduct
identical to that of Detweiler, but they do provide a framework from which we
can evaluate the severity of his conduct. While Detweiler's conduct may not be
as egregious as that of . . . Sturgeon, it is more disturbing than that of
other attorneys who have engaged in consensual sexual affairs with clients or
made inappropriate sexual comments to their clients.
Not only did Detweiler make repeated
unsolicited and unwelcome sexual advances on a vulnerable client, but when she
ignored those advances, he upped the ante by sending her a nude photograph of
himself in a state of sexual arousal. Based on this disturbing escalation of
the improper and offensive conduct Detweiler directed toward his client, we are
not convinced that a fully stayed suspension will adequately protect the public
from future harm.
Therefore, we find that a one-year
actual suspension from the practice of law is the appropriate sanction for
Detweiler's misconduct.
Disciplinary Counsel
v. Detweiler, supra.
The court therefore held that
William Jeffrey Detweiler is suspended
from the practice of law in Ohio for one year and his reinstatement shall be
conditioned on the submission of proof that he has submitted to an OLAP
evaluation and complied with any treatment recommendations. Costs are taxed to
Detweiler.
Disciplinary Counsel
v. Detweiler, supra.
If you would like to see a short video clip of arguments
before the Supreme Court in this case, check out this link.
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