The opinion
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Schwarz, Slip Opinion No. 2020-Ohio-1542.]
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. 2020-OHIO-1542
DISCIPLINARY COUNSEL v. SCHWARZ.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Disciplinary Counsel v. Schwarz, Slip Opinion No.
2020-Ohio-1542.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct—
Indefinite suspension.
(No. 2019-1738—Submitted January 29, 2020—Decided April 22, 2020.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2019-033.
_______________________
Per Curiam.
{¶ 1} Respondent, Harold McClure Schwarz III, of Akron, Ohio, Attorney
Registration No. 0078072, was admitted to the practice of law in Ohio in 2004. On
March 22, 2019, we suspended his license on an interim basis after receiving notice
that he had been convicted of importuning in violation of R.C. 2907.07, a fifth-
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degree felony. See In re Schwarz, 156 Ohio St.3d 1272, 2019-Ohio-972, 126
N.E.3d 1197.
{¶ 2} In June 2019, relator, disciplinary counsel, charged Schwarz with
violating the Rules of Professional Conduct based on the facts that led to his felony
conviction. Schwarz stipulated to the charged misconduct, and the parties jointly
recommended that he serve an indefinite suspension, with no credit for the time he
has served under his interim felony suspension. After a hearing before a three-
member panel of the Board of Professional Conduct, the board issued a report
finding that Schwarz had engaged in the stipulated misconduct and recommending
that we adopt the parties’ proposed sanction. The board also recommends that we
condition Schwarz’s future reinstatement on his compliance with the terms of his
probation and with the contract he entered into with the Ohio Lawyers Assistance
Program (“OLAP”). Neither party has objected to the board’s report.
{¶ 3} Based on our review of the record, we adopt the board’s findings of
misconduct and recommended sanction.
Misconduct
{¶ 4} In October 2018, a Portage County grand jury charged Schwarz in a
two-count indictment with importuning in violation of R.C. 2907.07, a fifth-degree
felony, and attempted unlawful sexual conduct with a minor in violation of R.C.
2923.02 and 2907.04, a fourth-degree felony. Count one of the indictment alleged
that Schwarz solicited an undercover law-enforcement officer who was posing as a
15-year-old male and that Schwarz either believed the male was between the ages
of 13 and 15 or was reckless in that regard. Count two of the indictment alleged
that Schwarz attempted to engage in sexual conduct with “John Doe,” the
undercover law-enforcement officer, who Schwarz believed was 15 years old. In
February 2019, Schwarz pleaded guilty to count one and the state dismissed count
two.
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January Term, 2020
{¶ 5} In June 2019, the Portage County Court of Common Pleas designated
Schwarz a Tier I sex offender and sentenced him to three years of community
control, with one year under intensive supervised probation followed by two years
under general supervision. The court also ordered that he undergo a mental-health
and sexual-offender evaluation, follow all recommendations resulting from that
evaluation, and maintain full-time employment throughout the period of his
probation.
{¶ 6} At his disciplinary hearing, Schwarz admitted that through an
application on his mobile phone, he had exchanged sexually charged text messages
with a person he believed was a minor—but who was actually an undercover law-
enforcement officer—and had also arranged to meet the person at a restaurant. The
parties stipulated and the board found that by soliciting the undercover officer
posing as a 15-year-old male, Schwarz violated Prof.Cond.R. 8.4(b) (prohibiting a
lawyer from committing an illegal act that reflects adversely on the lawyer’s
honesty or trustworthiness) and 8.4(h) (prohibiting a lawyer from engaging in
conduct that adversely reflects on the lawyer’s fitness to practice law). The board
expressly found that Schwarz’s misconduct was sufficiently egregious to warrant
finding a separate violation of Prof.Cond.R. 8.4(h). See Disciplinary Counsel v.
Bricker, 137 Ohio St.3d 35, 2013-Ohio-3998, 997 N.E.2d 500, ¶ 21.
{¶ 7} We agree with the board’s findings of misconduct.
Sanction
{¶ 8} 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.
{¶ 9} As aggravating factors, the board found that Schwarz had acted with
a dishonest or selfish motive and that his conduct, although unsuccessful, was
directed at a vulnerable teenaged victim. See Gov.Bar R. V(13)(B)(2) and (8). The
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board also noted that Schwarz did not appear to express remorse and that he did not
appear to understand the gravity of his offense, the vulnerable nature of minors, or
the potential adverse consequences to them as a result of solicitation offenses. See
Gov.Bar R. V(13)(B)(7).
{¶ 10} As for mitigation, the board found that Schwarz has a clean
disciplinary record, he had exhibited a cooperative attitude toward the disciplinary
proceedings, he had presented evidence of his good character and reputation, other
penalties or sanctions have been imposed for the same misconduct, and he had
presented evidence of other interim rehabilitation. See Gov.Bar R. V(13)(C)(1),
(4), (5), (6), and (8). Regarding the other rehabilitation, the board noted that a week
after his arrest, Schwarz began working with a clinical psychologist and that he
signed an OLAP contract on August 1, 2019, and was in compliance with it.
{¶ 11} To support the recommended sanction, the parties and the board
cited Disciplinary Counsel v. Goldblatt, 118 Ohio St.3d 310, 2008-Ohio-2458, 888
N.E.2d 1091, in which we indefinitely suspended an attorney who had attempted to
arrange a sexual encounter with a minor. We held that “[w]hen a lawyer engages
in or attempts to engage in sexually motivated conduct with an underage victim, an
indefinite suspension of the lawyer’s license to practice is appropriate” and that
“lawyers convicted of felonies stemming from such conduct cannot expect to
receive credit for an interim [felony] suspension.” Id. at ¶ 18; see also Disciplinary
Counsel v. Andrews, 124 Ohio St.3d 523, 2010-Ohio-931, 924 N.E.2d 829
(indefinitely suspending an attorney, giving no credit for time served under an
interim felony suspension, for misconduct that included soliciting sexual activity
from an adult posing as a 13-year-old female).
{¶ 12} In accordance with Goldblatt, we adopt the recommended sanction.
Schwarz’s fitness to practice law has been severely undermined by his criminal
conduct, and “an indefinite suspension will help protect the public, deter other
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January Term, 2020
lawyers from similar wrongdoing, and preserve the public’s trust in the legal
profession.” Goldblatt at ¶ 30.
Conclusion
{¶ 13} Harold McClure Schwarz III is hereby indefinitely suspended from
the practice of law in the state of Ohio, with no credit for the time he has served
under his interim felony suspension imposed on March 22, 2019. In addition to his
meeting the requirements of Gov.Bar R. V(25), Schwarz’s reinstatement shall be
conditioned on his demonstrating that he has complied with (1) the terms of the
probation imposed in his criminal case and (2) his August 1, 2019 OLAP contract.
Costs are taxed to Schwarz.
Judgment accordingly.
O’CONNOR, C.J., and KENNEDY, FRENCH, FISCHER, DEWINE, DONNELLY,
and STEWART, JJ., concur.
_________________
Joseph M. Caligiuri, Disciplinary Counsel, for relator.
Crabbe, Brown & James, L.L.P., Larry H. James, and Rachel A. Rinehardt,
for respondent.
_________________
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