This post examines an opinion from the Ohio Supreme
Court: Disciplinary Counsel v. Bartels, 2016 WL 3344953 (2016). The title of the case differs from the usual
“Brown v. Smith” (civil case) or “State v. Jones” because the case
involves neither a civil suit nor a criminal prosecution.
As the Supreme Court of Ohio’s website explains, the
Supreme Court of Ohio has the
constitutional responsibility to oversee the practice of law in the state and
has one of the most comprehensive disciplinary systems of any state in the
nation. The Court has established three offices—Office of Disciplinary Counsel,
Board of Professional Conduct, and the Lawyers' Fund for Client Protection--to
exercise independent authority to assist the Court in meeting its
responsibility as set forth in Section 5(b), Article IV, of the Ohio Constitution.
The Supreme Court of Ohio & the Ohio Judicial System.
The site goes on to explain that the
Office of Disciplinary Counsel
investigates allegations and initiates complaints concerning ethical misconduct
and/or mental illness of judges or attorneys under the Code of Professional
Responsibility, the Rules of Professional Conduct, the Code of Judicial
Conduct, and rules governing the Unauthorized Practice of Law, pursuant to the
Ohio Supreme Court Rules for the Government of the Bar and the Government of
the Judiciary.
The Supreme Court of Ohio & the Ohio Judicial System.
The opinion this post examines is an opinion the
Ohio Supreme Court issued in an attorney disciplinary proceeding: Disciplinary Counsel v. Bartels. The “respondent” in the proceeding was N.
Shannon Bartels, of Lima, Ohio. Disciplinary
Counsel v. Bartels. The court begins
its opinion in the case by noting that Bartels
was admitted to the practice of law in
Ohio in 1994. In March 2010, we publicly reprimanded Bartels for engaging in a
sexual relationship with a client. Allen County Bar Assn. v. Bartels, 124
Ohio St.3d 527, 2010-Ohio-1046, 924 N.E.2d 833.
Disciplinary Counsel
v. Bartels, supra.
As the Ohio State Bar Association’s website explains, if the
Supreme Court finds that a lawyer has engaged in conduct that is inconsistent
with his/her ethical responsibilities, the court can impose any of four types
of discipline:
- A public
reprimand;
- A suspension
from practice for a definite period of time ranging from six months to two
years;
- A suspension
from practice for an indefinite period of time (at least two years);
or
- Disbarment,
which means the loss of license for life with no chance
for readmittance to the Ohio bar. An attorney may also resign the
right to practice law. In effect, resigning is the same as being
permanently disbarred.
Getting back to the Bartels
opinion, the Supreme Court went on to explain how this proceeding arose:
On November 25, 2014, relator,
disciplinary counsel, charged Bartels with professional misconduct for
soliciting or engaging in sexual activity—texting sexually oriented
messages—with a client. The parties stipulated that Bartels had committed the
charged misconduct and that a stayed one-year suspension was the appropriate
sanction. A panel of the Board of Professional Conduct recommended that the
agreement be adopted except that the stay be subject to conditions. The
board, however, amended the recommended sanction and instead recommended a
one-year suspension with six months stayed on conditions.
Bartels has filed objections to the board's recommendation, and relator has agreed with her arguments. . . .
Disciplinary Counsel
v. Bartels, supra.
The Supreme Court’s opinion then went on to outline the
facts that led the Disciplinary Counsel to charge Bartels with professional
misconduct:
After spending portions of her legal
career working for other entities, Bartels reopened a solo law practice in
2012, focusing primarily in family law and workers' compensation.
In November 2012, Troy Bailey retained
Bartels to represent him in his divorce. The divorce was finalized by court
entry in July 2013. However, commencing in late February or early March 2013,
Bartels and Bailey began exchanging multiple text messages with each other that
were sexually oriented. The messages continued for approximately one month and
were mutual and reciprocal in their sexual content, but Bartels and Bailey did
not actually engage in sexual intercourse with each other.
In April 2013, Bartels received a text
from Bailey's cell phone number containing a veiled threat that if the results
of the divorce proceeding were not satisfactory to Bailey, the sexually oriented
texts as well as nude photographs that Bartels had exchanged with him would be
sent to the disciplinary authorities. During a May 2013 phone conversation with
Bartels about his divorce proceeding, Bailey put a female—later identified as
his girlfriend—on the line who told Bartels that she `had better get Bailey
everything he wanted’ from the proceeding. The female also told Bartels to
bring $3,000 to a hearing scheduled for six days later. At the hearing, neither
Bailey nor Bartels mentioned the threat, nor was any monetary payment made.
For several months after the hearing,
neither Bartels nor Bailey mentioned their message exchanges or the purported
extortion attempt. Then, in September 2013, Bartels received a text message
from Bailey's cell phone number stating that the Ohio State Bar Association and
the Better Business Bureau would be contacted if Bartels did not refund at
least $2,500 to Bailey. At that point, Bartels reported the extortionate
conduct to the Allen County Sheriff's Office and gave that office a statement.
Following a law-enforcement investigation, Bailey and his girlfriend, who had
sent the extortionate text messages from his cell phone, were indicted and
convicted of obstructing justice.
Disciplinary Counsel
v. Bartels, supra.
The opinion then goes on to explain that the
parties stipulated
and the board found that Bartels's conduct in engaging in sexually oriented
text messaging with her client violated [Ohio Rules of Professional Conduct Rule] 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). We adopt the board's findings of fact and
misconduct.
Disciplinary Counsel
v. Bartels, supra.
The Supreme Court then took up the sanction that was
appropriate for Bartel’s misconduct, explaining that
[w]hen imposing sanctions for attorney
misconduct, we consider several 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 [Supreme Court Rules fort he Government of the Bar of Ohio] V(13).
The board found one aggravating factor,
that Bartels has a record of prior discipline—namely, her public reprimand for
violating the same provision as here. See [Supreme Court Rules
for the Government of the Bar of Ohio] V(13)(B)(1). In mitigation, the board
found that she fully cooperated in the disciplinary process and submitted
evidence of good character. See [Supreme Court Rules for the
Government of the Bar of Ohio] V(13)(C)(4) and (5).
Disciplinary Counsel
v. Bartels, supra.
The opinion goes on to explain that,
[a]s a sanction, the parties jointly
recommend that Bartels receive a stayed one-year suspension. The parties
cite Disciplinary Counsel v. Detweiler, 135 Ohio St.3d 447,
2013-Ohio-1747, 989 N.E.2d 41 (`Detweiler II ‘), as the
appropriate guidepost in our analysis. That case was the second time that the
respondent was disciplined. See Disciplinary Counsel v. Detweiler, 127
Ohio St.3d 73, 2010-Ohio-5033, 936 N.E.2d 498 (`Detweiler I’). In Detweiler
I, we publicly reprimanded Detweiler for engaging in sexual activity
with a client during representation that was consensual and legal and did not
compromise the interests of the client.
In Detweiler II, however,
Detweiler repeatedly sent a vulnerable client sexually oriented text messages,
including nude photos, that were unwelcome and unsolicited. The client `felt
trapped’ and could not afford new counsel at that stage of the
litigation. Id. at ¶ 5. Although the board recommended that
Detweiler be suspended for one year with six months stayed on condtiions, id., we
determined that to adequately protect the public from future harm, a one-year
actual suspension from the practice of law was appropriate for his
misconduct, id. at ¶ 20.
Here, based on testimony at the
hearing, the panel was troubled by Bartels's lack of appreciation that her
conduct was contrary to the letter and spirit of the rule. Therefore, although
it recommended adoption of the parties' agreement, including the fully stayed
one-year suspension, the panel further recommended that the stay be conditioned
on Bartels's completion of six additional hours of continuing legal education
(`CLE’) on professional conduct and professionalism focused on proper
communications and interactions with clients and, upon reinstatement, that she
work for a period of one year with a mentoring attorney approved by relator.
The board, however, recommends that we suspend Bartels from the practice of law
for one year with only six months stayed, subject to the two conditions
recommended by the panel.
To support its recommendation, the
board cited Lake Cty. Bar Assn. v. Mismas, 139 Ohio St.3d 346,
2014-Ohio-2483, 11 N.E.3d 1180, in which we suspended an attorney for one year
with six months stayed for conduct that included sending explicit text messages
to a law-student employee and demanding sexual favors as a condition of her
employment. We found that Mismas abused the power and prestige of our
profession with his conduct and thus deserved a harsher sanction than that
proposed by the panel and board, who, as here, also considered the Detweiler decisions.
Disciplinary Counsel
v. Bartels, supra.
And, finally, the opinion explains that Bartels
filed objections to the board's report,
and relator joined her request for a stayed one-year suspension. Both parties
noted that the conduct was mutual and consensual, she did not have sexual
relations with her client, the exchanges did not impair her ability to
effectively advocate on behalf of her client, and her conduct did not rise to
the same level as that in Mismas, in which the respondent
abused his position of power and took advantage of his student-employee's
vulnerable position. Bartels also noted that both Detweiler II and
Mismas were decided after Bartels's conduct in this case had
occurred and that she therefore would not have known that mutual, consensual
text messaging could be included within the meaning of `sexual activity’ under Ohio
Rules of Professional Conduct 1.8(j).
We disagree with the parties and find,
consistently with the board, that Mismas is instructive here.
We emphasize our statement in Disciplinary Counsel v. Booher, 75
Ohio St.3d 509, 510, 664 N.E.2d 522 (1996) that `the burden is on the lawyer to
ensure that all attorney-client dealings remain on a professional level.’
Because this is Bartels's second disciplinary action within five years for a
violation of the same rule and her responses to questions at the hearing
indicate a lack of awareness of the nature of her wrongdoing, we conclude that
the board's recommended sanction is the more appropriate option.
Thus, having considered Bartels's
misconduct, the aggravating and mitigating factors, and the sanctions imposed
in comparable cases, we adopt the board's recommended sanction. N. Shannon
Bartels is suspended from the practice of law in Ohio for one year with six
months stayed, subject to the conditions that she (1) complete an additional
six hours of [continuing legal education], in addition to the general
requirements of Supreme Court Rules for the Government of the Bar of Ohio (13),
that are approved by relator, on professional conduct and professionalism
focused on proper communications and interactions with clients, (2) commit no
further misconduct, (3) pay all costs, and (4) upon reinstatement, serve a
one-year period of monitored probation pursuant to [Supreme Court Rules
for the Government of the Bar of Ohio] V(21) with a mentoring attorney
approved by relator. Costs are taxed to Bartels.
Disciplinary Counsel
v. Bartels, supra.
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