Disciplinary Counsel v. Benbow.

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as

Disciplinary Counsel v. Benbow, Slip Opinion No. 2018-Ohio-2705.]

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. 2018-OHIO-2705

DISCIPLINARY COUNSEL v. BENBOW.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as Disciplinary Counsel v. Benbow, Slip Opinion No.

2018-Ohio-2705.]

Attorneys—Misconduct—Violations of the Rules of Professional Conduct—Two-

year suspension, with second year stayed on conditions.

(No. 2017-1734—Submitted January 24, 2018—Decided July 12, 2018.)

ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme

Court, No. 2017-020.

_______________________

Per Curiam.

{¶ 1} Respondent, Brian William Benbow, of Zanesville, Ohio, Attorney

Registration No. 0071404, was admitted to the practice of law in Ohio in 1999.

{¶ 2} In a complaint certified to the Board of Professional Conduct on April

6, 2017, relator, disciplinary counsel, alleged that Benbow violated multiple

professional-conduct rules by engaging in sexual activity with a client in a

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courthouse conference room and repeatedly lying about that conduct during the

ensuing disciplinary investigation. The parties submitted joint stipulations in which

Benbow admitted to most of the charged misconduct. They agreed that multiple

aggravating and mitigating factors are present and jointly recommended that

Benbow be suspended from the practice of law for two years, with the second year

stayed on conditions.

{¶ 3} After conducting a hearing, a panel of the board issued a report in

which it found that Benbow committed all of the stipulated misconduct and

recommended that we adopt the parties’ stipulated sanction. The board adopted the

panel’s report in its entirety. We adopt the board’s findings and suspend Benbow

from the practice of law for two years, with the second year stayed on conditions.

Misconduct

{¶ 4} K.V. retained Benbow in May 2014 to represent her in a child-

visitation proceeding that was pending in the Coshocton County Court of Common

Pleas, Probate and Juvenile Division. On August 18, 2014, Benbow filed a written

closing argument on K.V.’s behalf, and the magistrate issued a decision the

following day. Benbow’s representation of K.V. was complete on September 8,

2014, when the judge adopted the magistrate’s decision.

{¶ 5} Before the judge issued the final decision in K.V.’s case, however,

Benbow and K.V. developed a personal relationship. They exchanged texts and

Facebook messages of a sexual nature along with explicit photographs of

themselves—though they had agreed in advance that they would delete any such

communications immediately after receiving them. Despite their agreement, a total

of seven digital photographs of K.V. were saved to Benbow’s computer on

September 23 and 24, 2014. Benbow also admitted that he had had at least one

lunch date with K.V., during which he kissed her and touched her breast.

{¶ 6} The father of K.V.’s child filed a motion to modify the court’s

previous visitation orders on September 23, 2014, and K.V. once again retained

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January Term, 2018

Benbow to represent her. Benbow subsequently kissed K.V. during a meeting at

his office, but she stopped him and insisted that they prepare for her case.

{¶ 7} After attending a December 18, 2014 hearing, Benbow and K.V.

entered a courthouse conference room to wait for the magistrate to complete the

final orders. The conference room was equipped with a video camera that

transmitted a live feed that was monitored by courthouse deputies. The video

shows—and Benbow now stipulates—that he was initially seated across from K.V.

but that he later moved to a chair next to her and placed his file and winter coat

over his lap. Together, they placed K.V.’s hand under Benbow’s coat and onto his

lap, and for the next eight minutes she fondled him and rubbed his penis through

his clothing. The fondling ceased when Benbow answered a telephone call, during

which the courthouse deputies delivered the magistrate’s orders. Benbow and K.V.

then left the courthouse together, hugged, and went their separate ways. Their

conduct in the conference room was referred to the Coshocton County Sheriff’s

Office.

{¶ 8} The sheriff’s office interviewed K.V. on December 23, 2014, but after

speaking with her brother (an attorney) during a break, she terminated the

interview. After leaving the sheriff’s office, she called and arranged to meet

Benbow that evening. When she arrived, Benbow checked her phone and patted

her down to ensure that she was not recording their conversation. K.V. confirmed

that, pursuant to their agreement, she had deleted all of their digital photographs

and communications as they occurred. Benbow advised her to retain separate

counsel and then blocked all communication with her.

{¶ 9} Approximately one month later, Benbow, through his attorney, sent a

letter to the Columbus Bar Association purporting to self-report the allegations

against him. In that letter, however, Benbow not only affirmatively misrepresented

the extent of his relationship with K.V. and the nature of their conduct in the

conference room but also denied that he had engaged in any misconduct.

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{¶ 10} Benbow was not forthcoming or cooperative when relator deposed

him on September 15, 2016. While under oath, he omitted relevant information

and affirmatively misrepresented facts regarding several issues, including the

nature of his personal relationship with K.V., whether they had exchanged

photographs of a sexual nature, and his role in the conduct caught on courthouse

video. After reviewing the transcript of that deposition, Benbow submitted an

errata sheet in which he purported to clarify his testimony—but that document also

omitted relevant information and affirmatively misrepresented facts. Benbow’s

noncooperation continued at the panel hearing—the board characterized his

testimony there as evasive and argumentative; even Benbow admitted that he was

“struggling with denial.”

{¶ 11} The board adopted the parties’ stipulations that Benbow’s conduct

violated Prof.Cond.R. 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), 8.1(a) (prohibiting a lawyer from knowingly

making a false statement of material fact in connection with a disciplinary matter),

8.4(c) (prohibiting a lawyer from engaging in conduct involving dishonesty, fraud,

deceit, or misrepresentation), and 8.4(d) (prohibiting a lawyer from engaging in

conduct that is prejudicial to the administration of justice).

{¶ 12} In addition, the board found that the scope and extent of Benbow’s

repeated and improper sexual conduct with his client and the subsequent course of

dishonest conduct constituted “extremely troubling behavior by a lawyer” and were

sufficiently egregious as to warrant a finding that he violated Prof.Cond.R. 8.4(h)

(prohibiting a lawyer from engaging in conduct that adversely reflects on the

lawyer’s fitness to practice law). See Disciplinary Counsel v. Bricker, 137 Ohio

St.3d 35, 2013-Ohio-3998, 997 N.E.2d 500, ¶ 21.

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January Term, 2018

Sanction

{¶ 13} When imposing sanctions for attorney misconduct, we consider

several relevant factors, including the ethical duties the lawyer violated, the

aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions

imposed in similar cases.

{¶ 14} The parties stipulated and the board found that the relevant

aggravating factors here include Benbow’s dishonest or selfish motive, lack of

cooperation during the disciplinary process, and making false statements,

submitting false evidence, or engaging in other deceptive practices during the

disciplinary process. See Gov.Bar R. V(13)(B)(2), (5), and (6). The board also

found that Benbow had engaged in a pattern of misconduct involving multiple

offenses, acted for his own gratification, harmed a vulnerable client who was

embroiled in a contentious custody dispute with someone Benbow described as a

“dangerous individual,” and harmed the profession by engaging in sexual activity

in a courthouse, knowingly making false statements during relator’s investigation,

and lying under oath on multiple occasions in an effort to conceal his misconduct.

See Gov.Bar R. V(13)(B)(3), (4), and (8). Further, the board suggested that

Benbow failed to accept responsibility for his misconduct at his disciplinary

hearing—though it did not expressly identify that failure as an aggravating factor.

{¶ 15} As mitigating factors, the parties stipulated and the board found that

Benbow has no prior disciplinary record and had submitted approximately 40 letters

attesting to his good character and reputation. See Gov.Bar R. V(13)(C)(1) and (5).

Although Benbow presented evidence that he had sought assistance from the Ohio

Lawyers Assistance Program (“OLAP”), the board noted that he did not do so until

after relator filed his complaint. Indeed, Benbow has made no effort to establish

that he suffered from a mitigating mental disorder, although he testified that he has

been treated for anxiety and depression in the past and recently resumed counseling.

See Gov.Bar R. V(13)(C)(7).

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{¶ 16} In recommending that we impose the parties’ agreed sanction of a

two-year suspension with the second year stayed on conditions, the board

considered two lines of cases—those involving repeated inappropriate sexual

conduct with clients and those involving a course of dishonest conduct.

{¶ 17} In Disciplinary Counsel v. Detweiler, 135 Ohio St.3d 447, 2013-

Ohio-1747, 989 N.E.2d 41, we imposed a one-year suspension on an attorney who

made repeated unsolicited and unwelcome sexual advances toward a vulnerable

client through text messages that culminated in his transmission of a nude

photograph of himself in a state of sexual arousal. Unlike Benbow, Detweiler did

not develop a physical relationship with his client or engage in false or deceptive

conduct during the resulting disciplinary investigation.

{¶ 18} In Cleveland Metro. Bar Assn. v. Lockshin, 125 Ohio St.3d 529,

2010-Ohio-2207, 929 N.E.2d 1028, we indefinitely suspended an attorney who

engaged in a pattern of inappropriate sexual communications with multiple clients,

including a minor. Like Benbow, Lockshin avoided taking full responsibility for

his inappropriate behaviors and gave false deposition testimony. But Lockshin’s

conduct was arguably more egregious than Benbow’s because Lockshin engaged

in inappropriate sexual communications with multiple clients. Moreover, Lockshin

had significant mental-health problems, he withdrew from certain treatment against

the advice of his treatment professionals, and his counselor testified that he would

be “very apprehensive” about recommending that Lockshin be permitted to

continue practicing law if he did not take his counseling seriously.

{¶ 19} We have held that an attorney who engages in a course of conduct

that involves dishonesty, fraud, deceit, or misrepresentation must serve an actual

suspension from the practice of law for an appropriate period of time. Disciplinary

Counsel v. Fowerbaugh, 74 Ohio St.3d 187, 658 N.E.2d 237 (1995), syllabus. In

Disciplinary Counsel v. Gildee, 134 Ohio St.3d 374, 2012-Ohio-5641, 982 N.E.2d

704, we imposed a two-year suspension, with the second year stayed on conditions,

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January Term, 2018

based on an attorney’s failure to deliver funds that her client was entitled to receive,

falsification of a document in an attempt to justify that failure, and false

representation to the relator regarding the status of the payment. We also imposed

that sanction on an attorney who engaged in seven incidents of shoplifting and

attempted to mislead the relator by making false statements and omitting relevant

information during the ensuing disciplinary investigation. Cincinnati Bar Assn. v.

Moore, 143 Ohio St.3d 252, 2015-Ohio-2488, 36 N.E.3d 171.

{¶ 20} Because Benbow not only engaged in an inappropriate sexual

relationship with a client but also engaged in a course of dishonest conduct

involving multiple false denials and lies under oath, we agree that a two-year

suspension, with the second year stayed on the conditions recommended by the

board, is the appropriate sanction in this case.

{¶ 21} Accordingly, Brian William Benbow is suspended from the practice

of law in Ohio for two years, with the second year stayed on the conditions that he

engage in no further misconduct, remain in compliance with his September 27,

2017 OLAP contract and any extension thereto, and serve a one-year period of

monitored probation in accordance with Gov.Bar R. V(21). If Benbow fails to

comply with a condition of the stay, the stay will be lifted and he will serve the full

two-year suspension. Costs are taxed to Benbow.

Judgment accordingly.

O’CONNOR, C.J., and O’DONNELL, KENNEDY, FRENCH, FISCHER, and

DEWINE, JJ., concur.

DEGENARO, J., not participating.

_________________

Scott J. Drexel, Disciplinary Counsel, and Donald M. Scheetz, Assistant

Disciplinary Counsel, for relator.

Charles J. Kettlewell, L.L.C., and Charles J. Kettlewell, for respondent.

_________________

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