Disciplinary Counsel v. Sarver.

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

Disciplinary Counsel v. Sarver, Slip Opinion No. 2018-Ohio-4717.]

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-4717

DISCIPLINARY COUNSEL v. SARVER.

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

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

2018-Ohio-4717.]

Attorneys—Misconduct—Violations of the Rules of Professional Conduct,

including soliciting or engaging in sexual activity with a client, committing

an illegal act that adversely reflects on the lawyer’s honesty or

trustworthiness, and engaging in conduct involving dishonesty, fraud,

deceit, or misrepresentation—Two-year license suspension, with 18 months

stayed on conditions.

(No. 2017-1081—Submitted May 22, 2018—Decided November 28, 2018.)

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

Court, No. 2017-015.

__________________

SUPREME COURT OF OHIO

KENNEDY, J.

{¶ 1} Respondent, Jason Allan Sarver, of Rockbridge, Ohio, Attorney

Registration No. 0082073, was admitted to the practice of law in Ohio in 2007.

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

on April 6, 2017, relator, disciplinary counsel, charged Sarver with four ethical

violations arising from his sexual relationship with a client. Initially, the parties

entered into an agreement for discipline by consent and stipulated to a two-year

suspension, with the entire suspension stayed on just one condition—that Sarver

not engage in any further misconduct. The board accepted the consent-to-discipline

agreement and the stipulated sanction and recommended that we do so also.

However, we rejected that sanction and remanded the matter for additional

proceedings. 150 Ohio St.3d 1439, 2017-Ohio-7742, 82 N.E.3d 1173.

Subsequently, at a hearing before a panel of the board, the parties presented

stipulations of fact, misconduct, and aggravating and mitigating factors, submitted

28 joint exhibits, and recommended that Sarver be suspended from the practice of

law for two years, with the entire suspension stayed on multiple conditions.

{¶ 3} The panel adopted the parties’ stipulations and recommended

sanction, and the board again adopted the panel’s report in its entirety, and no

objections have been filed. Although we agree with the finding that Sarver

committed professional misconduct, we reject the board’s recommended sanction

and conclude that Sarver’s misconduct warrants a suspension from the practice of

law for two years, with the last 18 months of the suspension stayed on the

conditions recommended by the board.

Misconduct

{¶ 4} Sarver and J.B. met each other in 2012 when Sarver represented J.B.’s

then boyfriend in a legal matter. On September 11, 2015, J.B. reached out to Sarver

when she needed “a good attorney for felony……some stupid shit happened and I

really need to talk to u its not good.” The next day, Sarver and J.B. met at a

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January Term, 2018

Columbus restaurant, discussed J.B.’s criminal case over drinks, and then had sex

in Sarver’s vehicle in the parking lot.

{¶ 5} J.B. was charged with theft in the Hocking County Municipal Court

and a warrant was issued for her arrest. According to Sarver, he was unaware that

a warrant had been issued when he subsequently instructed her to turn off the

Global Positioning System (“GPS”) on her mobile phone so that law enforcement

could not track her. Several days later, a grand jury indicted J.B. for multiple

felonies, and due to Sarver’s advice to turn off the GPS on her mobile phone, she

avoided arrest for almost one month before being apprehended.

{¶ 6} The judge presiding over J.B.’s arraignment appointed Sarver to

represent her, and Sarver, now representing an indigent client as court-appointed

counsel, engaged in sexual activity with her at least seven more times over the next

four months. They also trespassed onto Sarver’s neighbor’s property to use a hot

tub.

{¶ 7} In the meantime, Sarver filed a petition to run for Hocking County

Prosecuting Attorney. And although rumors of his sexual relationship with J.B.

soon spread, Sarver falsely denied the rumors to the judge presiding over J.B.’s

criminal case on two separate occasions. Around the same time that Sarver had

lied about his inappropriate relationship with J.B. to the judge, the Hocking County

Sherriff’s Office began investigating Sarver. Detectives interviewed J.B. and

promised her a reduced sentence if she disclosed the true nature of her relationship

with Sarver. J.B. agreed to cooperate with the investigation, and during her

interview with detectives, she stated that Sarver had “insinuated” that he would help

J.B. with her “warrants and cases for sexual favors.” She told the detectives that

she had “problems saying no to something like that * * *. You feel kinda forced

into it. * * * And, you know, of course, I had something over my head, I was facing

7 felonies.”

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{¶ 8} The state, through a special prosecutor, charged Sarver with several

offenses, including two counts of sexual battery in violation of R.C. 2907.03(A)(1),

which prohibits knowingly coercing another to engage in sexual conduct.

However, the sexual-battery counts were dismissed as part of an agreement under

which Sarver pleaded guilty to three misdemeanor counts of criminal trespassing

(based on Sarver’s unauthorized use of his neighbor’s hot tub) and one

misdemeanor count of obstructing official business (based on his advice to J.B. to

turn off her phone’s GPS while there was an outstanding warrant for her arrest).

Additionally, as part of the plea agreement, Sarver had to withdraw his candidacy

for county prosecuting attorney and the special prosecutor dismissed the remaining

counts of the indictment. The court sentenced Sarver to two years of community

control and fined him $1,250.

{¶ 9} After we rejected the board’s original recommendation to accept the

parties’ consent-to-discipline agreement and remanded the cause to the board for

further proceedings, a hearing was held before a panel, the parties presented

stipulations of fact, misconduct, and aggravating and mitigating factors, and they

recommended that Sarver be suspended from the practice of law for two years, with

the entire suspension stayed on multiple conditions.

{¶ 10} The panel adopted the parties’ stipulations and recommended

sanction. The board adopted the panel’s report in its entirety and found that

Sarver’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

between them existed prior to the client-lawyer relationship), 8.4(b) (prohibiting a

lawyer from committing an illegal act that adversely reflects on the lawyer’s

honesty or trustworthiness), 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).

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Sanction

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

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

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

imposed in similar cases.

{¶ 12} The parties stipulated and the board found the presence of two

aggravating factors—that Sarver acted with a dishonest and selfish motive and

committed multiple offenses. See Gov.Bar R. V(13)(B)(2) and (4).

{¶ 13} Stipulated mitigating factors found by the board include the absence

of prior discipline, Sarver’s full and free disclosure to the board and cooperative

attitude toward the disciplinary proceedings, and other penalties and sanctions

incurred for his misconduct. See Gov.Bar R. V(13)(C)(1), (4), and (6). The parties

stipulated and the board found that Sarver had submitted letters attesting to his good

character and reputation, and the judge who had presided over J.B.’s criminal case

also submitted a letter expressing his agreement with the proposed sanction. See

Gov.Bar R. V(13)(C)(5). In addition, the board noted that Sarver had successfully

completed court-ordered counseling and made a good-faith effort to address the

issues underlying his misconduct by entering into a contract with the Ohio Lawyers

Assistance Program (“OLAP”) and attending additional counseling with his spouse.

{¶ 14} In considering the appropriate sanction for Sarver’s misconduct, the

board emphasized that “compelling” mitigating factors in this case warranted a two-

year suspension, with the entire suspension stayed on conditions:

(1) not only was there no harm to the client but the client leveraged

her relationship with [Sarver] to get a better plea deal by agreeing to

testify against him; (2) he received a very public reprimand of sorts

from the local media because his arrest and indictment, while he was

a candidate for prosecutor, were front-page news; (3) he was over-

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SUPREME COURT OF OHIO

indicted with 14 felonies and four misdemeanors including bribery

and sexual battery charges; (4) he was arrested twice and spent two

nights in jail; (5) and he was forced to withdraw his candidacy for

county prosecutor.

The board explained that “[w]hat makes these factors so significant is that they all

stem from [Sarver’s] consensual sexual relationship with his client.”

{¶ 15} We agree that Sarver’s conduct violated Prof.Cond.R. 1.8(j), 8.4(b),

8.4(c), and 8.4(d). However, we disagree that a two-year suspension, with the entire

suspension stayed on the conditions recommended by the board, is the appropriate

sanction for that misconduct.

{¶ 16} Prof.Cond.R. 1.8(j) prohibits a lawyer from soliciting or engaging in

sexual activity with a client unless a consensual sexual relationship between them

predated the client-lawyer relationship. In the absence of a preexisting, consensual

sexual relationship, seeking or having sex with a client is a per se violation. The

fact that a client appears to have consented does not mitigate the attorney’s

misconduct or provide a defense against a violation. Indeed, Comment 17 to

Prof.Cond.R. 1.8(j) explains that “this rule prohibits the lawyer from engaging in

sexual activity with a client regardless of whether the relationship is consensual

and regardless of the absence of prejudice to the client, unless the sexual

relationship predates the client-lawyer relationship.” (Emphasis added.) Compare

Prof.Cond.R. 1.7 (allowing client to consent to representation of another client that

will be directly adverse to the client in certain circumstances); Prof.Cond.R. 1.8(a)

(allowing client to consent to an attorney’s transacting business with the client

when certain conditions are met). And Gov.Bar R. V(13)(C) does not identify the

client’s consent as a mitigating factor that may be considered in favor of a less

severe sanction.

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January Term, 2018

{¶ 17} We have admonished lawyers and sanctioned them with an actual

suspension from the practice of law for engaging in sexual conduct with clients

with whom they had no sexual relationship prior to the representation. “Most

disturbing are cases in which a lawyer has had sex with a client while defending

the client against criminal charges * * * or has accepted sex in lieu of fees.”

Disciplinary Counsel v. Krieger, 108 Ohio St.3d 319, 2006-Ohio-1062, 843 N.E.2d

765, ¶ 29.

{¶ 18} In Disciplinary Counsel v. Booher, 75 Ohio St.3d 509, 664 N.E.2d

522 (1996), Booher had been appointed to represent a female client who was facing

felony charges. When Booher met with his client to discuss a possible prison

sentence in a jail meeting room, they engaged in sexual activity. The client reported

the incident to the judge presiding over her case, resulting in disciplinary action

against Booher. The board recommended a one-year suspension of Booher’s

license, with the entire suspension stayed on conditions. We concluded, however,

that a more severe sanction was warranted, explaining:

The case before us involves court-appointed counsel for a criminal

defendant. The lawyer-client relation in a criminal matter is

inherently unequal. 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.

Id. at 510. We also noted that because the client was incarcerated, Booher had

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abused his status as an officer of the court by meeting with the client and engaging

in sexual activity with her in the jail. We therefore imposed a one-year actual

suspension.

{¶ 19} In Disciplinary Counsel v. Freeman, 106 Ohio St.3d 334, 2005-

Ohio-5142, 835 N.E.2d 26, Freeman paid his 18-year-old female client—who was

facing serious criminal charges—$150 to pose for nude photographs. And after the

attorney-client relationship had ended, Freeman offered his underage client alcohol

and solicited her to perform sex acts in exchange for specific monetary amounts.

Citing Booher, this court explained that “[w]e have denounced the patent

impropriety of similar misconduct before.” Freeman at ¶ 12. And given the

reprehensible nature of Freeman’s conduct and our obligation to protect the public,

we suspended his license to practice law for an actual six-month term. Id. at ¶ 16.

{¶ 20} In Krieger, 108 Ohio St.3d 319, 2006-Ohio-1062, 843 N.E.2d 765,

at ¶ 33, we explained that an assistant public defender “took advantage of the

‘inherently unequal’ balance of power between a criminal defense lawyer and his

or her client” when Krieger had a sexual relationship with—and provided financial

assistance to—a male client whom she had previously represented as a juvenile and

continued to represent in other legal matters. The attorney had also lied about the

relationship to her employer, the public defender, and impeded the public defender

in providing competent and objective representation to this indigent defendant,

eventually causing the public defender to refuse to provide him with future legal

representation. Id. at ¶ 28, 34. We suspended Krieger from the practice of law for

two years, with one year of the suspension stayed on conditions. Id. at ¶ 36.

{¶ 21} In Akron Bar Assn. v. Williams, 104 Ohio St.3d 317, 2004-Ohio-

6588, 819 N.E.2d 677, the attorney represented a female client in a domestic-

relations proceeding and defended her against charges for driving under the

influence and driving with a suspended license. During this time, the client “was

in danger of losing custody of her children, had little, if any, money to pay for legal

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January Term, 2018

assistance, was struggling with drug use, and was in counseling for having

attempted suicide.” Id. at ¶ 3. Nonetheless, Williams began a sexual relationship

with the client with an understanding that she would not be charged for his legal

services. After the client filed a grievance, Williams lied in a deposition under oath

when he denied that he was having a sexual relationship with her. Id. at ¶ 6. Noting

the “egregious” misconduct in which the attorney “[took] advantage of a vulnerable

client [and] lied under oath to hide his misdeeds,” we suspended Williams’s law

license for two years, with the last 18 months of the suspension stayed on

conditions. Id. at ¶ 15-16.

{¶ 22} These cases all involved attorneys who took advantage of the

attorney-client relationship and their clients’ vulnerable circumstances for the

attorneys’ own sexual gratification. And in each case, we determined that an actual

suspension was the appropriate sanction for their misconduct.

{¶ 23} In this case, however, the board concluded that “compelling

mitigating factors” supported adopting the parties’ recommendation of a two-year

suspension, with the entire suspension stayed on conditions. It noted that “not only

was there no harm to the client but the client leveraged her relationship with

[Sarver] to get a better plea deal by agreeing to testify against him.” The board also

explained that other negative consequences that Sarver experienced—a public

shaming “of sorts” from the local media, his being “over-indicted with 14 felonies

and four misdemeanors,” his two arrests and the two nights that he spent in jail, and

his being forced to withdraw his candidacy for county prosecutor—were

“significant” because “they all stem[med] from [Sarver’s] consensual sexual

relationship with his client.”

{¶ 24} However, the board’s finding that there was a consensual

relationship seems oblivious to the facts that (1) J.B. was an indigent criminal

defendant, (2) Sarver was her court-appointed, criminal-defense attorney, (3) “[t]he

lawyer-client relation in a criminal matter is inherently unequal,” Booher, 75 Ohio

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St.3d at 510, 664 N.E.2d 522, and (4) “[t]he 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,” id. This

power imbalance “ ‘enable[s] the lawyer to dominate and take unfair advantage’ ”

of the client. Iowa Supreme Court Bd. of Professional Ethics & Conduct v. Hill,

540 N.W.2d 43, 44 (Iowa 1995), quoting former Iowa Code of Professional

Responsibility EC 5-25.

{¶ 25} Reported cases are filled with clients who have said that they

submitted to their attorney’s sexual advances out of fear that refusing to submit

would affect the quality of their representation at a time of vulnerability and

dependence on the attorney. E.g., Disciplinary Counsel v. Detweiler, 135 Ohio

St.3d 447, 2013-Ohio-1747, 989 N.E.2d 41, ¶ 20; Disciplinary Counsel v. Moore,

101 Ohio St.3d 261, 2004-Ohio-734, 804 N.E.2d 423, ¶ 12; Williams, 104 Ohio

St.3d 317, 2004-Ohio-6588, 819 N.E.2d 677, at ¶ 4; In re Vogel, 482 S.W.3d 520,

525, 544 (Tenn.2016); Iowa Supreme Court Atty. Disciplinary Bd. v. Moothart, 860

N.W.2d 598, 617 (Iowa 2015); Matter of Berg, 264 Kan. 254, 281, 955 P.2d 1240

(1998); In re Rinella, 175 Ill.2d 504, 516, 677 N.E.2d 909 (1997).

{¶ 26} Here, Sarver met an indigent client “for drinks” and to discuss a

serious criminal matter. At the end of the meeting, Sarver proceeded to have sex

with her in his parked car, which the client described as a “favor” for his legal

services. Then, after the client had been found indigent and Sarver had been

appointed by the court to represent her, Sarver continued to engage in sexual

activity with J.B. while she remained vulnerable and dependent on him as he

defended her against serious criminal charges.

{¶ 27} Yet, although J.B. told detectives that she believed Sarver was

helping her in exchange for sexual favors and that she had submitted to his sexual

advances because of her legal jeopardy—and notwithstanding relator’s statement

at the hearing that J.B. still contended that the sexual activity with Sarver was not

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January Term, 2018

consensual—the board never heard directly from her before making conclusions

about the nature of her relationship with Sarver. Instead, the board essentially

blamed the victim, J.B., for the negative consequences that Sarver experienced

resulting from his own decision to engage in sexual relations with a vulnerable

client whom he had been appointed to represent in a criminal case.

{¶ 28} And then, ignoring all the indications that Sarver exploited the

attorney-client relationship to obtain “sexual favors,” the board concluded that the

client was all the better for it, because she “leveraged her relationship with [Sarver]

to get a better plea deal.” The mere fact that the client’s criminal case was not

prejudiced does not mean that she suffered no harm from Sarver’s misconduct. See

Vogel, 482 S.W.3d at 537 (“the use of [the client’s] trust to her disadvantage

constitutes injury”). As the Supreme Court of Colorado has explained, “a sexual

relationship between lawyer and client during the course of the professional

relationship is inherently and insidiously harmful.” People v. Boyer, 934 P.2d

1361, 1363 (Colo.1997). The client may be psychologically and emotionally

harmed by an exploitative sexual relationship regardless of the outcome of the legal

case. See Cleveland Metro. Bar Assn. v. Sleibi, 144 Ohio St.3d 257, 2015-Ohio-

2724, 42 N.E.3d 699, ¶ 15 (noting that the attorney’s sexual relationships with

clients caused those clients emotional harm); State ex rel. Nebraska State Bar Assn.

v. Denton, 258 Neb. 600, 609, 604 N.W.2d 832 (2000) (noting that the attorney’s

sexual relationship with his client “caused further psychological harm to a

vulnerable client”).

{¶ 29} The abuse of the attorney-client relationship not only harms the

dignity of the client, whose body and trust in her lawyer have been violated, but it

also impugns the legal system as a whole. J.B., an indigent criminal defendant,

turned to the court and the legal profession to protect her freedom and right to due

process, only to be exploited for Sarver’s sexual gratification.

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SUPREME COURT OF OHIO

{¶ 30} It is for all these reasons that Ohio has adopted a per se prohibition

against an attorney’s having a sexual relationship with a client when such a

relationship did not exist before the attorney-client relationship was formed, and

the professional-conduct rules do not indicate that a lesser sanction should be

imposed on the attorney when the relationship “appears” to be consensual or when

the client’s case does not seem to have been prejudiced. And in keeping with the

aspiration expressed in A Lawyer’s Creed “to make the law and our legal system

available to all,” courts have the obligation to ensure that the lawyers appointed to

represent indigent criminal defendants “offer loyalty, confidentiality, competence,

diligence and [their] best judgment” and abide by their professional duty not to

initiate a sexual relationship with a vulnerable client whose liberty and right to due

process is at stake. A Lawyer’s Creed, Appendix V to the Supreme Court Rules

for the Government of the Bar. Failing to impose an actual suspension on a court-

appointed, criminal-defense attorney who has violated Prof.Cond.R. 1.8(j) by

having sex with his indigent client would contravene our obligation to protect the

public.

{¶ 31} The board’s finding that J.B. freely engaged in a relationship with

Sarver ignores the power imbalance between an indigent client and court-appointed

defense counsel, and its finding that J.B. had not been prejudiced discounts the

inherent harm that results when an attorney abuses the attorney-client relationship

in pursuit of the attorney’s own sexual gratification. For all of these reasons,

Sarver’s misconduct of engaging in a sexual relationship with a client in a criminal

case—during which he also obstructed official business, committed trespass, and

lied about the relationship to a judge—warrants an actual suspension of his law

license.

{¶ 32} Accordingly, Jason Allan Sarver is suspended from the practice of

law in Ohio for two years, with 18 months of the suspension stayed on the

conditions that he (1) comply with his December 12, 2017 OLAP contract, (2) take

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the Multistate Professional Responsibility Exam and receive a passing score, (3) in

addition to the requirements of Gov.Bar R. X, complete 12 hours of continuing

legal education focused on professional ethics or attorney-client relationships,

(4) serve a two-year period of monitored probation in accordance with Gov.Bar R.

V(21), and (5) engage in no further misconduct. If Sarver fails to comply with any

condition of the stay, the stay will be lifted and he will serve the full two-year

suspension. Costs are taxed to Sarver.

Judgment accordingly.

O’DONNELL, FRENCH, and DEWINE, JJ., concur.

FISCHER, J., concurs in part and dissents in part, with an opinion joined by

O’CONNOR, C.J., and DEGENARO, J.

_________________

FISCHER, J., concurring in part and dissenting in part.

{¶ 33} The sanction recommended by the Board of Professional Conduct,

with the inclusion of conditions such as probation, is much improved from the

previous discipline-by-consent agreement submitted to this court. I agree with the

majority’s position, however, that a two-year suspension, with the entire suspension

stayed on the conditions recommended by the board, is an unsuitable sanction in

this case. Although I agree with much of the majority’s analysis, I believe that

given the circumstances of this case, a longer actual suspension of respondent’s,

Jason Allan Sarver’s, Ohio law license is warranted and is necessary to protect the

public. Specifically, I find that a two-year suspension, with one year stayed on the

conditions recommended by the board, would be a more appropriate sanction in

this case. Therefore, I respectfully concur in part and dissent in part.

A. An Actual Suspension of One Year is Warranted

{¶ 34} I wholeheartedly agree with the majority that the board was incorrect

to conclude that because Sarver’s client, J.B., was not prejudiced in her criminal

case, she was not harmed by Sarver’s misconduct. Majority opinion at ¶ 28. And

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I further agree with the board and the majority that Sarver acted selfishly and with

a dishonest motive.

{¶ 35} But I believe that Sarver’s actions necessitate a longer actual

suspension of his law license. Here, Sarver violated four professional-conduct rules

stemming from his sexual relationship with his indigent female client, J.B:

Prof.Cond.R. 1.8(j), by engaging in sexual activity with a client; Prof.Cond.R.

8.4(b), by committing an illegal act that reflects adversely on the lawyer’s honesty

or trustworthiness; Prof.Cond.R. 8.4(c), by engaging in conduct involving

dishonesty, fraud, deceit, or misrepresentation; and Prof.Cond.R. 8.4(d), by

engaging in conduct that is prejudicial to the administration of justice.

{¶ 36} Generally, for many of these rule violations, including Prof.Cond.R.

1.8(j), whether an actual suspension is imposed depends on the facts of each case.

See Disciplinary Counsel v. Detweiler, 135 Ohio St.3d 447, 989 N.E.2d 41, 2013-

Ohio-1747, ¶ 17-20. However, when the violation of Prof.Cond.R. 1.8(j) involves

an attorney and an indigent client, an actual suspension of an attorney’s law license

is warranted. See Disciplinary Counsel v. Krieger, 108 Ohio St.3d 319, 2006-Ohio-

1062, 843 N.E.2d 765 (court-appointed attorney who engaged in a sexual

relationship with her indigent juvenile client received a two-year suspension from

the practice of law, with one year stayed on conditions); Disciplinary Counsel v.

Booher, 75 Ohio St.3d 509, 664 N.E.2d 522 (1996) (court-appointed attorney who

engaged in sexual activity with his indigent client in the county jail received an

actual one-year suspension from the practice of law).

{¶ 37} We have also held that when an attorney engages in a course of

conduct involving dishonesty, fraud, deceit, or misrepresentation, the attorney will

serve an actual suspension from the practice of law. Disciplinary Counsel v.

Fowerbaugh, 74 Ohio St.3d 187, 658 N.E.2d 237 (1995), syllabus. While we have

tempered that sanction in cases presenting an isolated incident in an otherwise

unblemished career, see, e.g., Disciplinary Counsel v. Fumich, 116 Ohio St.3d 257,

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2007-Ohio-6040, 878 N.E.2d 6, this is not such a case. Sarver made a series of

poor decisions over the course of at least six months stemming from his selfish

motives to engage in a sexual relationship with his indigent client.

{¶ 38} The majority correctly emphasizes that the consensual nature of the

sexual relationship between Sarver and J.B. does not excuse or provide a defense

for Sarver’s misconduct. But even if consent were a mitigating factor, given the

imbalance of power inherent in an attorney-client relationship, I question whether

J.B.—who was heavily dependent on Sarver for help with navigating the criminal-

justice system and maintaining her liberty—could have given adequate informed

consent. See Prof.Cond.R. 1.8(j), Comment 17.

{¶ 39} Furthermore, “[w]hether 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.” Booher, 75 Ohio St.3d at 510, 664

N.E.2d 522. Here, it is apparent that Sarver did not meet his burden to maintain a

professional relationship with J.B. Sarver immediately acted on J.B.’s request for

help with her criminal case by contacting an assistant prosecuting attorney. The

following day, Sarver met J.B. for drinks where they discussed her case and then

proceeded to have sex in Sarver’s vehicle. Sarver continued his sexual relationship

with J.B., which included trespassing on the property of Sarver’s neighbor to use

the neighbor’s hot tub. Sarver acted dishonestly and selfishly, and he continuously

and repeatedly failed to maintain professionalism in his interactions with J.B.

{¶ 40} Perhaps the most disturbing behavior demonstrated by Sarver during

this six-month period occurred when Sarver deceived the court at least three times.

After establishing the attorney-client relationship with J.B., Sarver began a sexual

relationship with her and then sought appointment by the court to serve as J.B.’s

court-appointed, criminal-defense attorney. A court, in making appointments, must

take into account “[t]he avoidance of conflicts of interest or other situations that

may potentially delay timely completion of the case,” Sup.R. 8(D)(4), and

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“[i]ntangible factors, including the court[’s] * * * view of a potential appointee’s

commitment to providing timely, cost-effective, quality representation to each

prospective client,” Sup.R. 8(D)(5). By seeking to be appointed to J.B.’s case and

failing to disclose his relationship, Sarver misled the court as to his ability to

adequately represent J.B. as her court-appointed, criminal-defense attorney.

Making matters worse, Sarver continued his sexual relationship with J.B. after

being appointed by the court and twice lied about the relationship to a caring judge

when the judge expressed concern about the situation.

{¶ 41} While there are some mitigating factors in Sarver’s favor, such as

his lack of a disciplinary record, his cooperation with the board, and his character

references, the mitigating factors do not outweigh Sarver’s abhorrent behavior,

boorish selfishness, and complete disregard for the legal profession. Sarver

engaged in a sexual relationship with his indigent client who was facing serious

felony charges, advised his client on how to evade authorities, and then misled and

explicitly lied to the court about that relationship. As the majority correctly

emphasizes, the most disturbing attorney-disciplinary cases are those in which a

lawyer engages in sexual activity with a client while defending the client against

criminal charges. Krieger, 108 Ohio St.3d 319, 2006-Ohio-1062, 843 N.E.2d 765,

at ¶ 29. Given the facts of this case, I believe that this court should suspend Sarver

from the practice of law in Ohio for two years, with one year of the suspension

stayed on the conditions recommended by the board.

B. The Additional Conditions Will Help Ensure Protection of the Public

{¶ 42} While I believe that an actual one-year suspension of Sarver’s law

license is necessary to protect the public, I also believe that the board’s newly

recommended conditions will help to further protect the public.

{¶ 43} Originally, the board had accepted a discipline-by-consent

agreement whereby disciplinary counsel and Sarver stipulated to a two-year

suspension, fully stayed on just one condition—that Sarver not engage in further

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misconduct during those two years. This court specifically rejected that

recommended sanction and remanded the cause to the hardworking members of the

board for further proceedings. I voted to reject the board’s originally recommended

sanction because that sanction did not adequately protect the public. 150 Ohio St.3d

1439, 2017-Ohio-7742, 82 N.E.3d 1173.

{¶ 44} Subsequently, the board again recommended that Sarver be

suspended from the practice of law for two years, with the entire suspension

conditionally stayed. The board included additional conditions that require Sarver

to comply with his Ohio Lawyers Assistance Program (“OLAP”) contract, take and

pass the Multistate Professional Responsibility Exam, and, in addition to his normal

continuing-legal-education (“CLE”) requirements, complete 12 hours of CLE

focused on professional ethics or relationships with clients. And most importantly,

the conditions include a period of monitored probation under Gov.Bar R. V(21).

{¶ 45} Under Gov.Bar R. V(21)(A), disciplinary counsel must appoint an

attorney or attorneys to monitor Sarver’s compliance with all of the conditions

listed above. The monitoring attorney or attorneys must then file written, certified

reports with disciplinary counsel regarding the status of Sarver’s compliance with

the conditions of his probation, see Gov.Bar R. V(21)(B)(2), and shall

“[i]mmediately report” to disciplinary counsel any violation by Sarver of any

condition of probation (emphasis added), Gov.Bar R. V(21)(B)(3). The written

reports must be filed “at least quarterly or as otherwise determined” by disciplinary

counsel. Gov.Bar R. V(21)(B)(2).

{¶ 46} Further, while on probation, Sarver must (1) have a personal meeting

with the monitoring attorney or attorneys at least once a month during the first year

and at least quarterly thereafter, unless required by the monitoring attorney or

attorneys to have more frequent meetings; (2) provide the monitoring attorney or

attorneys with a written release or waiver so that Sarver’s compliance with the

conditions concerning medical, psychological, or other treatment and his

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attendance at self-help programs may be verified; and (3) cooperate fully with the

efforts of the monitoring attorney or attorneys. Gov.Bar R. V(21)(C).

Significantly, Sarver’s probation may be terminated only with this court’s approval,

see Gov.Bar R. V(21)(D), and disciplinary counsel must immediately investigate

“any report of a violation of the conditions of probation” by Sarver and must move

to revoke his probation if warranted (emphasis added), Gov.Bar R. V(21)(E).

{¶ 47} These additional requirements will protect the public far more

effectively than the sanction originally recommended by the board, as Sarver will

be forced to be in regular and repeated contact with both the monitoring attorney or

attorneys and OLAP. The written release or waiver that Sarver signs will provide

the monitoring attorney or attorneys access to Sarver’s medical and mental-health

information—a significant intrusion into Sarver’s private life—to ensure that he is

in compliance with the conditions of his probation. Sarver must also abide by the

significant obligations placed on him by his contract with OLAP. Moreover, Sarver

has the proverbial “sword of Damocles” of more time without his license “hanging

over his head” if he violates any ethical duty or any of the conditions during the

suspension period. In other words, this sanction will keep Sarver, in colloquial

terms, “on a short leash” once he is able to return to practice. Indeed, these

additional conditions on the stay of Sarver’s suspension will better help to protect

the public.

C. Conclusion

{¶ 48} While I agree with much of the majority opinion and agree that the

significant conditions attached to Sarver’s suspension, specifically probation, will

help protect the public more effectively than the board’s previously recommended

discipline-by-consent agreement, I believe that a longer actual suspension of

Sarver’s Ohio law license is warranted. Therefore, I concur in part and dissent in

part.

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{¶ 49} I hope that in the future, this court will more often utilize probation,

as was done in this case, as a means of protecting the citizens of Ohio from attorney

misconduct.

O’CONNOR, C.J., and DEGENARO, J., concur in the foregoing opinion.

_________________

Scott J. Drexel, Disciplinary Counsel, and Karen H. Osmond, Assistant

Disciplinary Counsel, for relator.

Jason Allan Sarver, pro se.

_________________

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