Disciplinary Counsel v. Russ

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

Disciplinary Counsel v. Russ, Slip Opinion No. 2023-Ohio-1337.]

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. 2023-OHIO-1337

DISCIPLINARY COUNSEL v. RUSS.

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

may be cited as Disciplinary Counsel v. Russ,

Slip Opinion No. 2023-Ohio-1337.]

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

year suspension with one year conditionally stayed.

(No. 2022-1512—Submitted February 7, 2023—Decided April 27, 2023.)

ON CERTIFIED REPORT by the Board of Professional Conduct of the

Supreme Court, No. 2022-015.

______________

Per Curiam.

{¶ 1} Respondent, Andrew Edward Russ, of Lancaster, Ohio, Attorney

Registration No. 0074974, was admitted to the practice of law in Ohio in 2002.1

{¶ 2} In a two-count amended complaint, relator, disciplinary counsel,

alleged that Russ violated four professional-conduct rules by making sexual

overtures toward a vulnerable client and arriving late or failing to attend hearings

1. Russ is also licensed to practice law in Florida.

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on behalf of ten other clients. The parties entered into stipulations of fact,

misconduct, and aggravating and mitigating factors and submitted 72 stipulated

exhibits. Russ and one other witness testified at a hearing before a three-member

panel of the Board of Professional Conduct. After the hearing, the panel issued a

report finding that Russ committed the charged misconduct and recommending that

he be suspended from the practice of law for two years, with one year conditionally

stayed, and that we place certain conditions on his reinstatement to the profession.

The board adopted the panel’s findings of fact, conclusions of law, and

recommended sanction. No objections have been filed.

{¶ 3} For the reasons that follow, we adopt the board’s findings of

misconduct and the recommended sanction.

MISCONDUCT

Count One: Soliciting a Sexual Relationship with a Client

{¶ 4} In June 2021, the Muskingum County Court of Common Pleas,

Juvenile Division, appointed Russ to represent C.L. against allegations that her

newborn daughter, K.P., was an abused, neglected, or dependent child. Russ did

not know C.L. or have a sexual relationship with her before that appointment. C.L.

was a vulnerable client in that (1) she was a young mother facing the possibility of

losing custody of her child, who had tested positive for the presence of fentanyl at

birth, (2) she had a mental disorder, and (3) she did not have the support of her

parents.

{¶ 5} After Russ was appointed to represent C.L., he began communicating

with her by text message. He offered C.L. a job working in his law office and

encouraged her to confide in him. After learning that she had issues with her family

(particularly her father), he offered to serve as a father figure, adding that he wanted

to help give her stability and build her self-esteem, confidence, and independence.

He also texted her that he would treat her the way she should be treated.

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{¶ 6} Intermingled with those offers of help, support, and encouragement

were Russ’s express solicitations of a sexual relationship with C.L. Russ texted

C.L. that he “want[ed]” her and that he was “interested in a relationship” with her.

Over the course of several days, Russ’s solicitations became more overt. After

Russ texted C.L., “I think we have that Daddy/daughter dynamic goin’ on,” he

suggested that he could spend considerable time with her and stated that he was

“sexually attracted” to her.

{¶ 7} Russ’s texts soon escalated with comments like, “[B]tw you have a

nice body,” followed immediately by “[C]an’t wait to get my hands all over it.”

Later, he texted C.L. that he wanted her to “be [his] woman,” then added, “I want

your p* * *y little girl” and “Show me a little of what’s mine.” Russ confessed to

C.L. that he had always wanted a young girlfriend about the age of his daughter

with whom he could share “the Daddy/daughter dynamic in and out of the

bedroom,” and he suggested that treating C.L. as a “girlfriend/daughter” was “a big

turn on for [him] sexually.”

{¶ 8} Even before Russ’s overt sexual advances had begun, C.L. became

uncomfortable with his messages and texted her daughter’s father, “My attorney is

a creep. And I’m stuck with him * * *.” She later disclosed Russ’s inappropriate

sexual solicitations to the guardian ad litem (“GAL”) assigned to her case. Based

on that information, the GAL filed a grievance with relator.

{¶ 9} Relator sent Russ a letter of inquiry requesting his written response to

allegations that he had improperly solicited a sexual relationship with C.L. After

learning that the GAL had filed a grievance against him and that relator had

attempted to speak with C.L. but before he received relator’s letter of inquiry, Russ

texted and called C.L. to ascertain whether she intended to tell relator the truth

about their communications. Believing that C.L. would not disclose his

inappropriate communications to relator, Russ denied the allegations set forth in

relator’s letter of inquiry. In addition, he suggested that C.L. had misled an

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“inexperience[d]” GAL in an attempt to gain leverage in her case, to gain favor

with the GAL, or to blame Russ for failing to obtain a favorable result in her case.

{¶ 10} When Russ was deposed by relator, he discovered that relator had

obtained copies of the text messages he had exchanged with C.L. At that time, he

acknowledged that he had sent the text messages described above and that they

were intended to solicit a sexual relationship with C.L., though no physical sexual

activity ever occurred. Despite that acknowledgment, throughout his deposition,

Russ continued to claim that C.L. had initiated the inappropriate communications

in an attempt to blackmail or “get leverage” on him and he suggested that she was

known for engaging in that type of conduct.

{¶ 11} During his disciplinary hearing, Russ acknowledged that he had no

intention of admitting that he had sent the text messages to C.L. until he realized at

his deposition that relator already had copies of the messages. He also admitted

that his statements in response to relator’s letter of inquiry were false and that he

had made them in an attempt to shift blame away from himself and onto C.L. At

his disciplinary hearing, Russ acknowledged that he had wanted to hire C.L.,

capitalized on her poor relationship with her family, and attempted to boost her self-

esteem in an effort to earn her trust and further his efforts to engage in a sexual

relationship with her.

{¶ 12} Russ stipulated and the board found that his 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), and 8.4(h)

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

lawyer’s fitness to practice). The board expressly found that Russ’s conduct toward

C.L. was sufficiently egregious to merit finding a separate violation of

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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. We adopt these findings of misconduct.

Count Two: Tardiness and Failure to Appear

{¶ 13} Russ stipulated that between August 2021 and April 2022, he was

15 to 60 minutes late for six hearings and failed to appear at four others and that all

of the hearings would have proceeded in a timely manner but for his delay or

absence. He did not offer a valid excuse for that misconduct. As a result of Russ’s

repeated tardiness and his failures to appear at hearings, he was removed from the

list of attorneys eligible to serve as court-appointed counsel in the Licking County

Court of Common Pleas, Probate-Juvenile Division.

{¶ 14} The parties stipulated and the board found that Russ’s conduct

violated Prof.Cond.R. 8.4(d) (prohibiting a lawyer from engaging in conduct that

is prejudicial to the administration of justice). We adopt this finding of misconduct.

RECOMMENDED SANCTION

{¶ 15} 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.

{¶ 16} The parties stipulated and the board found that five aggravating

factors are present in this case: Russ acted with a dishonest or selfish motive,

engaged in a pattern of misconduct, committed multiple offenses, submitted false

statements during the disciplinary process, and harmed a vulnerable client. See

Gov.Bar R. V(13)(B)(2), (3), (4), (6), and (8). As for mitigating factors, the parties

stipulated and the board agreed that Russ had a clean disciplinary record, that he

had made full and free disclosure to the board and exhibited a cooperative attitude

toward the disciplinary proceedings once confronted with the evidence against him,

and that other penalties or sanctions had been imposed for his misconduct—

namely, removal of his name from the list of attorneys eligible to serve as court-

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appointed counsel. Gov.Bar R. V(13)(C)(1), (4), and (6). The board found that

Russ was genuinely remorseful for his misconduct and that he had not attempted to

minimize his misconduct during his testimony at his disciplinary hearing. Although

Russ presented evidence that he had submitted to a psychological assessment,

begun counseling, and entered into a two-year contract with the Ohio Lawyers

Assistance Program (“OLAP”) after the disciplinary complaint was filed against

him, he did not seek to establish any diagnosed mental disorder as a mitigating

factor pursuant to Gov.Bar R. V(13)(C)(7). Nonetheless, the board commended

Russ for taking those affirmative steps before being ordered to do so.

{¶ 17} Relator recommended that Russ be suspended from the practice of

law for two years with one year stayed on conditions that would require him to

continue receiving treatment and counseling provided by a professional approved

by OLAP and to refuse all court appointments involving female or juvenile clients

until his treating medical professional cleared him to undertake such representation.

{¶ 18} In support of that recommended sanction, relator cited two cases in

which we suspended attorneys from the practice of law for one year for engaging

in misconduct comparable to Russ’s solicitation of a sexual relationship with C.L.

See Lake Cty. Bar Assn. v. Mismas, 139 Ohio St.3d 346, 2014-Ohio-2483, 11

N.E.3d 1180 (imposing a one-year suspension, with six months conditionally

stayed, on an attorney who violated Prof.Cond.R. 8.4(h) by sending explicit text

messages to a law-student employee and demanding sexual favors as a condition of

her employment); Disciplinary Counsel v. Detweiler, 135 Ohio St.3d 447, 2013-

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

made repeated unsolicited and unwelcome sexual advances toward a vulnerable

client through text messages that included a nude photograph of himself in a state

of sexual arousal).

{¶ 19} But the board observed that in addition to the type of sexual advances

at issue in Mismas and Detweiler, Russ had committed other rule violations through

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his submission of false statements during the disciplinary process and his tardiness

at and failure to attend scheduled hearings on behalf of his clients. Consequently,

the board considered four other cases in which we imposed partially stayed two-

year suspensions on attorneys who had engaged in sexual relationships with

vulnerable clients and also had committed significant acts of dishonesty. See

Disciplinary Counsel v. Benbow, 153 Ohio St.3d 350, 2018-Ohio-2705, 106 N.E.3d

57 (imposing a two-year suspension, with one year conditionally stayed, on an

attorney who had exchanged inappropriate sexual communications with a client,

engaged in sexual conduct with the client in a courthouse conference room, and

misrepresented the extent of his relationship and conduct with the client in the

disciplinary process); Disciplinary Counsel v. Cox, 168 Ohio St.3d 78, 2022-Ohio-

784, 195 N.E.3d 1018 (imposing a two-year suspension, with one year

conditionally stayed, on an attorney who engaged in inappropriate sexual

communications and a sexual relationship with a client and then lied about that

conduct during the disciplinary investigation); Disciplinary Counsel v. Porter, 166

Ohio St.3d 117, 2021-Ohio-4352, 182 N.E.3d 1188 (imposing a two-year

suspension, with one year conditionally stayed, on an attorney who engaged in

improper sexual relationships with two clients, filed a fraudulent affidavit in court,

and made false statements of material fact in the resulting disciplinary

investigation); Disciplinary Counsel v. Sarver, 155 Ohio St.3d 100, 2018-Ohio-

4717, 119 N.E.3d 405 (imposing a two-year suspension, with 18 months

conditionally stayed, on an attorney who engaged in a sexual relationship with a

client, lied to the judge about the nature of his relationship with the client, and

obstructed official business by instructing the client to take action to avoid being

tracked by law-enforcement officers).

{¶ 20} The board declined to distinguish the facts of Russ’s misconduct

from Benbow, Cox, Porter, and Sarver on the ground that Russ’s conduct had not

culminated in a physical sexual relationship with his client, because “Prof.Cond.R.

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1.8(j) does not differentiate between soliciting sex and having sex with a client

where no personal relationship preexisted the attorney-client relationship.”

Furthermore, the board concluded that “there is little question that soliciting sex

from a vulnerable client can be harmful to the client, even where there is no physical

sexual contact.” We agree that there is an “inherent harm that results when an

attorney abuses the attorney-client relationship in pursuit of the attorney’s own

sexual gratification,” Sarver at ¶ 31. And in this case, we find that the harm to C.L.

was magnified by Russ’s efforts to exploit her weaknesses to satisfy his own sexual

desires.

{¶ 21} Expressing a belief that Russ requires professional intervention to

ensure that he is capable of returning to the ethical practice of law, the board

recommends that we suspend him for two years, with one year conditionally stayed,

and that we impose certain conditions on his reinstatement to protect the public

from future harm. Specifically, the board recommends that Russ’s reinstatement

be conditioned on the submission of proof that he has complied with his July 20,

2022 OLAP contract and any extension thereof and completed three hours of

continuing legal education focused on professionalism in addition to the

requirements of Gov.Bar R. X. In addition, the board recommends that Russ be

required to submit an opinion from a qualified healthcare professional stating that

he is capable of returning to the competent, ethical, and professional practice of law

and specifically addressing Russ’s ability to work in a professional and ethical

manner with female clients, both adult and juvenile. The board recommends that

until the qualified healthcare professional opines that Russ is capable of

professionally and ethically representing female clients, he be required to decline

any court-appointed representation of female clients.

{¶ 22} After reviewing the record and our applicable precedent, we agree

with the board’s assessment that Russ’s misconduct is more akin to that in Benbow,

Cox, Porter, and Sarver than that in Mismas and Detweiler. Because Russ has

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suggested that his sexually oriented misconduct may be rooted in longstanding

psychological issues and because he had completed only eight treatment sessions

at the time of his disciplinary hearing, we agree that a two-year suspension, with

one year conditionally stayed, coupled with the recommended conditions on Russ’s

reinstatement, is necessary to protect the public from future harm.

CONCLUSION

{¶ 23} Accordingly, Andrew Edward Russ is hereby suspended from the

practice of law in Ohio for two years with one year stayed on the condition that he

commit no further misconduct. If Russ fails to comply with the condition of the

stay, the stay will be revoked and he will be required to serve the full two-year

suspension. In addition to the requirements of Gov.Bar R. V(24), Russ’s

reinstatement shall be conditioned on the submission of (1) proof that Russ has

complied with his July 20, 2022 OLAP contract and any recommended extension

thereof, (2) proof that he has completed three hours of continuing legal education

focused on professionalism in addition to the requirements of Gov.Bar R. X, and

(3) an opinion from a qualified healthcare professional stating that Russ is capable

of returning to the competent, ethical, and professional practice of law that

specifically addresses his ability to work in a professional and ethical manner with

female clients, both adult and juvenile. Unless and until a qualified healthcare

professional opines that Russ is capable of professionally and ethically representing

female clients, Russ shall be required to decline any court-appointed representation

of female clients. Costs are taxed to Russ.

Judgment accordingly.

KENNEDY, C.J., and FISCHER, DEWINE, DONNELLY, STEWART, BRUNNER,

and DETERS, JJ., concur.

____________________________

Joseph M. Caligiuri, Disciplinary Counsel, and Kelli C. Schmidt and

Matthew A. Kanai, Assistant Disciplinary Counsel, for relator.

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Alvin Mathews, for respondent.

_____________________________

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