Disciplinary Counsel v. Leon.

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

Disciplinary Counsel v. Leon, Slip Opinion No. 2018-Ohio-5090.]

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-5090

DISCIPLINARY COUNSEL v. LEON.

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

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

2018-Ohio-5090.]

Attorneys—Misconduct—Violations of professional-conduct rules, including

failing to perform contracted legal work and engaging in a sexual

relationship with a client–One-year suspension, with 6 months stayed on

conditions.

(No. 2018-0536—Submitted May 22, 2018—Decided December 20, 2018.)

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

Court, No. 2017-045.

________________

Per Curiam.

{¶ 1} Respondent, Robert James Leon, of Westerville, Ohio, Attorney

Registration No. 0078077, was admitted to the practice of law in Ohio in 2004. In

an October 5, 2017 complaint, relator, disciplinary counsel, alleged that Leon

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violated several professional conduct rules by accepting a retainer and filing fee

from a husband and wife and failing to deposit those funds into his client trust

account, failing to perform the contracted legal work, and engaging in a sexual

relationship with the wife during his legal representation.

{¶ 2} The parties entered into stipulations of fact, misconduct, and

aggravating and mitigating factors and jointly recommended that Leon be

suspended from the practice of law for six months, all stayed on conditions. Based

on those stipulations and the evidence adduced at the hearing, a panel of the Board

of Professional Conduct found that Leon committed four of the charged rule

violations, dismissed a fifth alleged violation, and recommended that he be

suspended from the practice of law for six months, all stayed on conditions. The

board adopted the panel’s report and recommendation and no objections have been

filed.

{¶ 3} We agree with the board’s findings of fact and misconduct, but for the

reasons that follow, we suspend Leon from the practice of law for one year with six

months stayed on the conditions recommended by the board.

Misconduct

{¶ 4} In February 2015, a husband and wife retained Leon to file a Chapter

7 bankruptcy petition on their behalf. They paid him $1,850 in cash, including a

$335 filing fee and a $1,515 advance on his attorney fees. They promptly gave

Leon all the documents he had requested and informed him that the loan payments

for their home and cars were current because they hoped to retain those assets.

{¶ 5} Leon deposited the couple’s funds into his operating account instead

of his client trust account. When the wife inquired about the status of the matter in

March 2015, Leon told her that it was taking longer than expected because the filing

was in the “western district,” meaning the western division of the United States

Bankruptcy Court for the Southern District of Ohio. When she asked again in

October 2015, Leon told her that the case had been filed. But in December 2015,

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Leon told the wife that he had waited to file the couple’s bankruptcy because of a

change in the law and informed her that she and her husband would have to sign

new forms.

{¶ 6} Leon never filed a Chapter 7 bankruptcy petition on behalf of the

couple. In the absence of that filing, creditors filed collection actions against them,

foreclosed on their home, and repossessed one of their cars.

{¶ 7} In late December 2015 or January 2016, Leon and the wife began to

exchange e-mails of a personal nature that progressed to “sexting.” Later, they

engaged in consensual sexual activity, including sexual intercourse, at Leon’s law

office. The husband discovered the affair in July 2016 and confronted Leon, who

immediately terminated the affair and withdrew from further representation of the

couple—but he did not refund their retainer or filing fee. Lacking the funds to

retain new counsel, the wife filed a grievance against Leon. In December 2017,

Leon finally issued a full refund to the couple.

{¶ 8} The parties stipulated and the board found that Leon’s conduct

violated Prof.Cond.R. 1.3 (requiring a lawyer to act with reasonable diligence in

representing a 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), 1.15(c) (requiring a lawyer to deposit advance legal

fees and expenses into a client trust account, to be withdrawn by the lawyer only as

fees are earned or expenses incurred), and 1.16(e) (requiring a lawyer to promptly

refund any unearned fee upon the lawyer’s withdrawal from employment).

{¶ 9} We agree with the board’s findings of misconduct.

Sanction

{¶ 10} 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.

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{¶ 11} As aggravating factors, the board found that Leon acted with a

selfish motive, committed multiple offenses, harmed financially vulnerable clients

by depriving them of the protection of a bankruptcy filing and failing to refund their

unearned fees, and caused additional harm by having an affair with the wife while

representing her and her husband. See Gov.Bar R. V(13)(B)(2), (4), and (8).

{¶ 12} Mitigating factors found by the board include the absence of a prior

disciplinary record, Leon’s full and free disclosure to the board and cooperative

attitude toward the disciplinary proceeding, and evidence of his good character and

reputation. See Gov.Bar R. V(13)(C)(1), (4), and (5).

{¶ 13} The board recommended that we impose a conditionally stayed six-

month suspension for Leon’s misconduct. In support of that recommendation, the

board examined two cases in which we imposed that sanction on attorneys who

violated Prof.Cond.R. 1.8(j) by soliciting (rather than actively engaging in) an

inappropriate sexual relationship with a client. See Disciplinary Counsel v.

Hubbell, 144 Ohio St.3d 334, 2015-Ohio-3426, 43 N.E.3d 397 (attorney attempted

to initiate a romantic relationship with a client he was representing pro bono in a

custody dispute); Cleveland Metro. Bar Assn. v. Paris, 148 Ohio St.3d 55, 2016-

Ohio-5581, 68 N.E.3d 775 (attorney made unwelcome sexual advances toward a

female client and neglected her criminal case by failing to appear at her criminal-

sentencing hearing).

{¶ 14} The board also considered Disciplinary Counsel v. Hines, 133 Ohio

St.3d 166, 2012-Ohio-3929, 977 N.E.2d 575. Like Leon, Hines actually engaged

in a sexual relationship with a client. He also hired the client to work at his law

firm and moved her and her children into his home while representing her in a

domestic-relations case. As the relationship deteriorated, Hines filed aggravated-

menacing and domestic-violence charges against the client and obtained a

temporary protection order against her. After an adverse judgment in the client’s

domestic-relations case was issued, Hines terminated his legal representation and

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left her without counsel at a critical juncture in her case. We found that Hines

violated Prof.Cond.R. 1.8(j) and 8.4(h) (prohibiting a lawyer from engaging in

conduct that adversely reflects on the lawyer’s fitness to practice law), and we

imposed a six-month conditionally stayed suspension for his misconduct.

{¶ 15} Because Leon’s misconduct encompasses a sexual relationship with

a client who was also the spouse of another client, we find Disciplinary Counsel v.

Owen, 142 Ohio St.3d 323, 2014-Ohio-4597, 30 N.E.3d 910, to be instructive.

Owen engaged in a sexual relationship with the spouse of a client charged with

aggravated murder with death-penalty specifications and other criminal offenses.

Id. at ¶ 1, 7.

{¶ 16} We found that Owen’s conduct created an inherent conflict of

interest that compromised the relationship of trust and confidence between the

attorney and client, prejudiced the administration of justice, and adversely reflected

on the attorney’s fitness to practice law. Id. at ¶ 29, 32. Owen acted with a selfish

motive and harmed a vulnerable client but had no prior disciplinary record,

cooperated in the disciplinary proceedings, and presented evidence of his good

character and reputation, as Leon has in this case. Id. at ¶ 33. We found that

Owen’s misconduct warranted a two-year suspension from the practice of law with

the second year stayed on conditions. Id. at ¶ 35.

{¶ 17} We acknowledge that Owen’s sexual relationship with his client’s

spouse was arguably more egregious than Leon’s given that Owen’s conduct

violated the client’s constitutional right to the effective assistance of counsel in a

capital case while Leon’s representation involved a bankruptcy petition. Id. at

¶ 32. But Leon engaged in a sexual relationship with a client who was also the

spouse of another client. He also failed to deposit the clients’ retainer and filing

fee into his client trust account, neglected their legal matter for 17 months, lied to

the wife about the status of the matter on at least one occasion, and waited 17

months after terminating his representation (and two months after relator filed a

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disciplinary complaint) to refund the clients’ money. Weighing that misconduct,

the applicable aggravating and mitigating factors, and our precedent, we believe

that the proper sanction for Leon’s misconduct falls somewhere between the six-

month conditionally stayed suspension recommended by the board and the two-

year partially stayed suspension that we imposed in Owen.

{¶ 18} Accordingly, we suspend Robert James Leon from the practice of

law for one year, with six months stayed on the conditions that he engage in no

further misconduct and pay the costs of this proceeding. If he fails to comply with

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

suspension. Costs are taxed to Leon.

Judgment accordingly.

O’CONNOR, C.J., and KENNEDY, FRENCH, FISCHER, and DEGENARO, JJ.,

concur.

O’DONNELL, J., dissents, with an opinion joined by DEWINE, J.

_________________

O’DONNELL, J., dissenting.

{¶ 19} Respectfully, I dissent.

{¶ 20} The parties in this case stipulated to the facts and aggravating and

mitigating factors and jointly recommended a six-month suspension, all stayed, on

conditions. The panel made appropriate findings and accepted the jointly

recommended sanction. That decision was accepted by the Board of Professional

Conduct, and no objections have been submitted to this court.

{¶ 21} Based on the facts and circumstances presented here, I would adopt

the recommendation of the Board and impose a stayed six-month suspension in this

case.

DEWINE, J., concurs in the foregoing opinion.

_________________

Scott J. Drexel, Disciplinary Counsel, for relator.

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Kegler, Brown, Hill & Ritter, L.P.A., and Jason H. Beehler, for respondent.

_________________

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