The opinion
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Bennett, Slip Opinion No. 2023-Ohio-4752.]
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-4752
DISCIPLINARY COUNSEL v. BENNETT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Disciplinary Counsel v. Bennett, Slip Opinion No.
2023-Ohio-4752.]
Attorneys—Misconduct—Violation of the Rules of Professional Conduct—
Conditionally stayed two-year suspension.
(No. 2023-0471—Submitted June 28, 2023—Decided December 29, 2023.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2022-034.
__________________
Per Curiam.
{¶ 1} Respondent, Mark Stewart Bennett, of Westlake, Ohio, Attorney
Registration No. 0069823, was admitted to the practice of law in Ohio in 1998.
{¶ 2} In an August 2022 complaint, relator, disciplinary counsel, alleged
that Bennett had engaged in conduct that adversely reflected on his fitness to
practice law in violation of Prof.Cond.R. 8.4(h) by sexually harassing an intern who
SUPREME COURT OF OHIO
was working for his employer. The parties entered into stipulations of fact,
misconduct, and aggravating and mitigating factors, and they submitted eight
stipulated exhibits. They also jointly recommended that Bennett receive a stayed
six-month suspension from the practice of law for his misconduct.
{¶ 3} Bennett 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 Bennett had committed the charged misconduct and
recommending that he be suspended from the practice of law for six months with
no stay and that we place a condition on his reinstatement to the profession. The
board adopted the panel’s findings of fact, conclusions of law, and recommended
sanction. Bennett objects to the board’s recommended sanction, arguing that the
board erred in (1) recommending that he serve an actual suspension from the
practice of law and (2) considering cases in which we have disciplined attorneys
who have committed similar misconduct with clients in determining the appropriate
sanction for his misconduct.
{¶ 4} For the reasons that follow, we adopt the board’s findings of
misconduct, sustain Bennett’s first objection in part, overrule his second objection,
and suspend him from the practice of law for two years with the entire suspension
stayed on the conditions that he commit no further misconduct, that he continue
with his current course of mental-health counseling for the duration of his
suspension, and that in the event his treating professional determines that his
counseling is complete before he has fully served his suspension, he report to the
Ohio Lawyers Assistance Program (“OLAP”) and comply with any OLAP
recommendations.
MISCONDUCT
{¶ 5} During all times relevant to this proceeding, Bennett was employed
as an Assistant United States Attorney (“AUSA”) at the Cleveland or Akron office
of the United States Attorney’s Office for the Northern District of Ohio (“USAO”).
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{¶ 6} J.S. was 24 years old and had just finished her first year of law school
when she commenced an internship at the Akron office of the USAO in May 2017.
She left that internship in November 2017 but returned to serve as an intern at the
Youngstown office of the USAO from August 2018 until June 2019. During the
two internships, J.S. spent time working at the Cleveland, Akron, and Youngstown
offices of the USAO.
{¶ 7} J.S. became acquainted with Bennett during her 2017 internship. At
that time, Bennett had been an AUSA for approximately ten years. During that
internship, J.S. believed that on various occasions, Bennett had attempted to look
up her skirt and had been “looking at [her] butt.” She also heard from a male intern
that Bennett had made sexually inappropriate comments about her.
{¶ 8} During J.S.’s 2017 internship, Bennett had consensual conversations
with her about his marital sex life. He also asked J.S. about her sex life and
suggested that he could be her sexual partner. Bennett offered to buy clothing for
J.S. from several stores, including Victoria’s Secret, and asked her to send him nude
photos of herself on Snapchat, a social-media platform.
{¶ 9} In August or September 2017, Bennett and J.S. were in the library of
the Akron office when J.S. told Bennett that she needed a copy of the federal
sentencing guidelines. Bennett told J.S. where the book was, and as he reached
across her body as if he was going to retrieve the book from a cabinet, he touched
her breasts with the back of his hand. J.S. believed that the touching was intentional
because Bennett made and held eye contact with her during the touching. Bennett
held the back of his hand on J.S.’s breasts and removed his hand when another
attorney entered the library.
{¶ 10} At some point, Bennett began communicating with J.S. through
various media, including Snapchat, Facebook, and text messaging. J.S. eventually
stopped Bennett’s attempts to communicate with her by refusing Snapchat requests,
blocking his phone number, and blocking him on Facebook. When Bennett
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questioned J.S. about her accounts not being visible to him on social media, she
feigned ignorance.
{¶ 11} J.S. left the USAO in November 2017, but she reached out to Bennett
in 2018 to ask whom she should contact about returning to work at the office. In
response, Bennett asked what J.S. was willing to do to return to the office. J.S.
believed that Bennett’s question had sexual overtones, and she did not pursue the
matter any further with him.
{¶ 12} When J.S. was reappointed as a USAO intern in August 2018, she
asked to be assigned primarily to the Youngstown office rather than where Bennett
was stationed (either the Akron office or the Cleveland office). On the occasions
when she worked at the Akron office, she stated that she disliked interacting with
Bennett so much that she would leave the area when she saw him looking for her.
She also asked a colleague to let her use the colleague’s workstation so that Bennett
would not know that she was in the office.
{¶ 13} In January 2019, Bennett sent J.S. a text message asking why she
loved Youngstown so much and whether she was “back with the same guy,” to
which J.S. replied “mayyybeeeeee.” (Spelling sic.) In the text exchange that
followed, Bennett noted that J.S. was spending two more hours commuting than
necessary, told her that her relationship with her boyfriend “obviously didn[’]t work
out the first time,” and inquired about her sex life with her boyfriend by asking “is
IT really that good??” (Capitalization and punctuation sic.) J.S. shut down the
conversation, texting “omg im getting back to work,” to which Bennett replied,
“[F]ine…what do i care anyway if u flunk out….” (Spelling, capitalization,
punctuation, and ellipses sic.)
{¶ 14} In January or February 2019, J.S. asked Bennett to provide a letter
of recommendation in support of an application for a clerkship following her
graduation from law school. After Bennett responded to her request by asking what
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he would receive in exchange for the recommendation, J.S. abandoned her request
and obtained recommendations from other attorneys.
{¶ 15} In March 2019, Bennett sent J.S. a Facebook message at around 4:00
a.m., asking, “Why do you haunt my dreams?” He continued to send J.S. text
messages that were unwelcome and ignored. On one occasion in June 2019,
Bennett sent J.S. a text, stating, “Nice. Can[’]t wait to have it,” in reference to J.S.’s
butt, which he informed her “was looking wide for a while there.” He later texted
her, “Damn [you] for making me think about it again,” with “it” being a reference
to sexual activity.
{¶ 16} After J.S. informed a colleague about her interactions with Bennett,
the Office of the Inspector General (“OIG”) of the United States Department of
Justice investigated her allegations. During that investigation, J.S. stated that she
had chosen not to report Bennett’s conduct, because according to how she had been
raised, “[T]his is what you have to deal with and you don’t say anything because
then you’re going to hurt your chances at a career.” She also stated, “I can’t put
my foot down because I’m an intern and he would always be like, oh I play poker
with judges every Thursday and I’m so well connected.” Although J.S. admitted
that she has a flirtatious personality and that she had probably joked with Bennett
about being his mistress in the early part of their interactions, she did not believe
that she had misled him into believing that she wanted a sexual relationship with
him or that she was receptive to his sexual comments.
{¶ 17} When he was interviewed during OIG’s investigation, Bennett stated
that he had been unaware that J.S. was uncomfortable with his conduct and that he
had believed that his interactions with her were mutually acceptable. In his
stipulations and his disciplinary-hearing testimony, he admitted that his actions
were inappropriate and stated that he had not realized how offensive they were to
J.S.
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{¶ 18} After completing its investigation, the OIG concluded that Bennett
had violated Department of Justice sexual-harassment policy and recommended
that his employment be terminated. Believing that he would be terminated even if
he contested the proceedings, Bennett resigned from the USAO and reported his
actions to relator. A short time later, the Department of Justice informed relator of
its investigation.
{¶ 19} The parties stipulated and the board found by clear and convincing
evidence that Bennett’s conduct violated Prof.Cond.R. 8.4(h) (prohibiting other
conduct that adversely reflects on a lawyer’s fitness to practice law, even though
that conduct is not expressly prohibited by another rule).
RECOMMENDED SANCTION
{¶ 20} 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.
{¶ 21} The parties stipulated and the board found that two aggravating
factors are present in this case: Bennett had acted with a dishonest or selfish motive
and had harmed a vulnerable victim. See Gov.Bar R. V(13)(B)(2) and (8). As for
mitigating factors, the parties stipulated and the board agreed that Bennett had a
clean disciplinary record, that he had made full and free disclosure to the board and
presented evidence of his good character and reputation, and that other penalties or
sanctions had been imposed for his misconduct—namely, the loss of his
employment. See Gov.Bar R. V(13)(C)(1), (4), (5), and (6).
{¶ 22} During his disciplinary-hearing testimony, Bennett expressed regret
and remorse for his misconduct toward J.S. He stated that he would like to
apologize to J.S. for his misconduct but that he had been advised to have no
communication with her. Bennett explained that he had voluntarily sought
counseling to understand why he had engaged in inappropriate conduct with J.S.
6
January Term, 2023
and that he had learned how to set appropriate professional boundaries and put
himself in others’ shoes. His licensed professional clinical counselor testified that
she had diagnosed Bennett with anxiety and depression. She stated that she
continues to meet with Bennett about once a month for treatment and that he had
been making progress in his treatment. The board found, however, that Bennett
had not offered his disorders as a mitigating factor. And we note that there is no
evidence that those disorders contributed to cause Bennett’s misconduct, as
required by Gov.Bar R. V(13)(C)(7)(b).
{¶ 23} The parties recommended that Bennett be suspended from the
practice of law for six months with the entire suspension stayed on the conditions
that he commit no further misconduct and that he continue his current course of
mental-health counseling. In determining the appropriate sanction for Bennett’s
misconduct, the board considered four cases cited by the parties in support of their
proposed sanction—namely, Lake Cty. Bar Assn. v. Mismas, 139 Ohio St.3d 346,
2014-Ohio-2483, 11 N.E.3d 1180; Disciplinary Counsel v. Skolnick, 153 Ohio
St.3d 283, 2018-Ohio-2990, 104 N.E.3d 775; Disciplinary Counsel v. Berry, 166
Ohio St.3d 112, 2021-Ohio-3864, 182 N.E.3d 1184; and Disciplinary Counsel v.
Quatman, 108 Ohio St.3d 389, 2006-Ohio-1196, 843 N.E.2d 1205.
{¶ 24} In Mismas, the attorney interviewed a third-year law student for a
law-clerk position in his office and that evening began sending her inappropriate
and sexually explicit text messages. Mismas at ¶ 4-5. During this text exchange,
he tried to gauge her level of sexual experience, suggested that she perform a sex
act for him, and told her that her employment depended on her compliance. Id. at
¶ 9-10. Notwithstanding the inappropriate content of these texts, the student
accepted employment at Mismas’s law firm two days after her interview. Id. at
¶ 5. Eleven days after accepting employment, however, she declined an invitation
to travel on business with Mismas and he threatened her employment. Id. at ¶ 12.
When she resigned the next day, Mismas became hostile and threatened to tell her
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law professors what a “stupid decision” she had made. Id. at ¶ 25. Just two
aggravating factors—Mismas’s dishonest or selfish motive and the harm to a
vulnerable victim—were balanced against four mitigating factors—namely,
Mismas’s clean disciplinary record, full and free disclosure to the board, good
character, and alcohol dependency. Id. at ¶ 15-18, 24. We suspended Mismas from
the practice of law for one year with six months stayed on the conditions that he
engage in no further misconduct and that he continue to comply with the
recommendations of his treating medical and psychological professionals. Id. at
¶ 26.
{¶ 25} In Skolnick, the attorney criticized and verbally harassed his
paralegal throughout her two-and-a-half year tenure in his employ. Skolnick at
¶ 4-5. He called her “stupid, dumb, fat, ‘whorey,’ and bitch.” Id. at ¶ 5. He
criticized her appearance and education, made fun of her husband and mother, and
proposed that she and another employee perform a sexual act on him so that he
could rate their performance. Id. at ¶ 4-5. His misconduct was so pervasive that
the paralegal met some of the criteria for a diagnosis of posttraumatic stress
disorder. Id. at ¶ 6. As in Mismas, we imposed a one-year suspension with six
months conditionally stayed; the only condition was that Skolnick engage in no
further misconduct. Skolnick at ¶ 15.
{¶ 26} The parties have asserted that the facts of this case are most
comparable to Berry, 166 Ohio St.3d 112, 2021-Ohio-3864, 182 N.E.3d 1184.
While serving as a municipal-court judge, Berry sent a Facebook friend request to
a female court reporter who worked for the same court but was not assigned to
Berry’s courtroom. Id. at ¶ 4. They exchanged several messages on various topics,
including their respective divorces, and Berry invited the court reporter to stop by
his courtroom to meet in person. Id. at ¶ 4-5. A week later, when he accused her
of “lurking” and renewed the invitation to visit his courtroom, she responded that
she would stop by soon. Id. at ¶ 5. After the court reporter declined a lunch
8
January Term, 2023
invitation from Berry and failed to respond to another invitation to join him for
lunch or drinks, the communications became increasingly one-sided. Id. at ¶ 6-9.
Berry sent the court reporter a series of images, memes, or links to internet videos—
many of which were “overtly partisan and vulgar” and some of which included
links to videos containing offensive and sexually suggestive content. Id. at ¶ 10-
11. Like Bennett, Berry stipulated that his communications were inappropriate and
that he had not intended to make his victim uncomfortable. Id. at ¶ 2, 12-13. The
aggravating and mitigating factors in Berry were nearly identical to those present
in this case, see id. at ¶ 15, except that another sanction has been imposed for
Bennett’s misconduct by virtue of the loss of his employment.
{¶ 27} In Berry, the panel recommended that Berry be publicly
reprimanded and be required to complete three hours of continuing judicial
education on sexual-harassment prevention. Id. at ¶ 2, 18. The board, however,
recommended that we impose a fully stayed six-month suspension and require
Berry to complete eight hours of continuing judicial education on sexual
harassment. Id. Recognizing that judges are held to higher standards of integrity
and ethical conduct than attorneys or others not invested with the public trust and
finding that Berry’s misconduct had undermined the public’s confidence in the
impartiality and integrity of the judiciary, we imposed the fully stayed six-month
suspension recommended by the board. Id. at ¶ 19-21.
{¶ 28} In this case, the parties and the board have acknowledged that
Bennett’s misconduct included an act of unwelcome physical contact that was not
present in Mismas, Skolnick, or Berry. However, they observe that in Quatman,
108 Ohio St.3d 389, 2006-Ohio-1196, 843 N.E.2d 1205, at ¶ 6, 26, we imposed a
fully stayed one-year suspension on an attorney whose misconduct consisted of
putting his hands on a client’s breasts and stating, “You have very nice breasts.”
{¶ 29} In addition to the four cases cited by the parties, the board also
considered three other cases involving attorneys—one of whom was a judge—who
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made unwelcome sexual remarks to students or young lawyers over whom they had
supervisory authority. See Columbus Bar Assn. v. Baker, 72 Ohio St.3d 21, 647
N.E.2d 152 (1995) (imposing a fully stayed six-month suspension and two years of
probation on an attorney who used vulgar and sexually explicit language in the
presence of a high-school student who worked in his office); Cincinnati Bar Assn.
v. Young, 89 Ohio St.3d 306, 731 N.E.2d 631 (2000) (imposing a two-year
suspension, with one year conditionally stayed, on an attorney who verbally abused
several law students employed in his law office, made sexual comments to them,
inappropriately touched at least one of them, and suggested that he could positively
or negatively affect their future bar admissions); Disciplinary Counsel v. Campbell,
68 Ohio St.3d 7, 623 N.E.2d 24 (1993) (imposing a one-year suspension from the
practice of law on a judge who over a period of years made unwelcome or offensive
sexual remarks to and/or engaged in offensive physical contact with six women,
including four young attorneys over whom he exercised authority as an employer
or a judge).
{¶ 30} The board also considered two cases involving attorneys who
engaged in inappropriate sexual communications with one or more clients, one of
whom also engaged in multiple acts of unwanted physical contact with clients and
others connected to his work. See Akron Bar Assn. v. Miller, 130 Ohio St.3d 1,
2011-Ohio-4412, 955 N.E.2d 359 (imposing a fully stayed six-month suspension
and one year of probation on an attorney who, during the course of a single
telephone conversation, asked a client about her breast size, stated that she should
show him her breasts as a reward, and suggested that she perform a sexual act on
him); Cleveland Metro. Bar Assn. v. Lockshin, 125 Ohio St.3d 529, 2010-Ohio-
2207, 929 N.E.2d 1028 (indefinitely suspending an attorney who made unwelcome
and inappropriate sexual comments to multiple clients [including a minor], a
potential witness, and a sheriff-department employee and touched several of his
victims in a sexually provocative manner).
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January Term, 2023
{¶ 31} While acknowledging that Bennett’s misconduct was offensive and
unacceptable, the board found that it did not rise to the level of the misconduct in
Mismas, Skolnick, Young, Campbell, or Lockshin, in which the sanctions ranged
from a one-year suspension with six months conditionally stayed to an indefinite
suspension. The board also found that Bennett’s misconduct was more serious than
the misconduct in Berry in that Berry did not engage in any physical contact with,
and had no authority over, his victim. Moreover, the board distinguished this case
from Quatman on the grounds that Bennett engaged in an ongoing pattern of
harassment in addition to a single incident of physical touching and noted that
Miller contained the additional mitigating factor of a mental disorder and a single
instance of improper conduct that is not present in this case. In addition, the board
was troubled that Bennett’s behavior had been witnessed by at least one other
colleague and that there was some evidence indicating that other colleagues had
had similar experiences with Bennett.
{¶ 32} The board found that although Bennett did not have the power to hire
or fire J.S., his authority was not inconsequential. The board noted that as an
experienced attorney in the prestigious position of an AUSA, Bennett had the
potential to influence J.S.’s career by introducing her to judges and other lawyers
with whom he was well connected and by expressing a favorable opinion of her
work product and giving her letters of recommendation. The board recognized that
those were “not trivial accolades for a law clerk to acquire from someone of
[Bennett’s] position” and that, as we have previously recognized, they could
potentially “ ‘set the course for a new attorney’s entire legal career,’ ” Mismas, 139
Ohio St.3d 346, 2014-Ohio-2483, 11 N.E.3d 1180, at ¶ 22. The board found that
Bennett’s presence and authority were enough for J.S. to inconvenience herself by
asking to work at a different geographical location during her second internship and
essentially hide when she needed to work at Bennett’s primary office location. Like
in Campbell, 68 Ohio St.3d at 11, 623 N.E.2d 24, the board concluded that Bennett
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“was either directly or indirectly in a position of influence over the complainant”
and that “his actions were almost exclusively directed at those most likely to be
intimidated by his position”—in this case a law student on the cusp of her legal
career.
{¶ 33} After weighing Bennett’s misconduct, the aggravating and
mitigating factors, and our applicable precedent, the board found that an actual
suspension from the practice of law was appropriate. It therefore recommends that
we impose a six-month suspension with no stay and that Bennett’s reinstatement
be conditioned on the submission of proof that he has continued with his current
course of mental-health counseling for the duration of his suspension or as
otherwise recommended by a qualified healthcare professional.
BENNETT’S OBJECTIONS TO
THE BOARD’S RECOMMENDED SANCTION
{¶ 34} Bennett raises two objections to the board’s recommended sanction.
In his first objection, Bennett contends that the board erred in recommending that
he be suspended from the practice of law for six months with no stay and argues
that a fully stayed six-month suspension with conditions is the appropriate sanction
for his misconduct. And in his second objection, Bennett argues that the board
erred in considering cases in which attorneys violated Prof.Cond.R. 8.4(h) by
engaging in inappropriate conduct with clients in determining its recommended
sanction. For ease of discussion, we begin our analysis with Bennett’s second
objection.
ANALYSIS
The board appropriately considered cases of attorney misconduct involving
clients in determining the appropriate sanction for Bennett’s misconduct
directed at a law clerk in an employment setting
{¶ 35} With respect to Bennett’s second objection, we acknowledge that
there are inherent differences between attorneys’ inappropriate sexual
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communication and/or conduct involving law clerks, paralegals, and others in the
workplace and attorneys’ inappropriate sexual communication and/or conduct
involving their clients. Of primary importance, the overriding consideration of the
trust and confidence between a client and his or her attorney is not present in the
workplace relationship. In addition, there is no rule expressly prohibiting the
solicitation of a sexual relationship with a colleague in the workplace, as there is in
the context of the attorney-client relationship. See 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 between them prior to the client-lawyer
relationship).
{¶ 36} However, in determining the appropriate sanction for attorney
misconduct, “ ‘we examine each case individually and impose the discipline we
believe appropriate based on the unique circumstances of each case.’ ” Toledo Bar
Assn. v. Hales, 120 Ohio St.3d 340, 2008-Ohio-6201, 899 N.E.2d 130, ¶ 21, quoting
In re Disciplinary Action Against Ruffenach, 486 N.W.2d 387, 390 (Minn. 1992);
see also Gov.Bar R. V(13)(A). To that end, in virtually every attorney-discipline
case, we consider previous cases in which we disciplined attorneys for similar or
comparable misconduct that we find to be instructive in determining the
appropriate sanction to impose in the case before us. We compare and contrast the
facts of the two cases to determine whether the misconduct at issue in the case
before us warrants the same sanction, a greater sanction, or a lesser sanction than
that imposed in the prior case.
{¶ 37} In keeping with that general practice, we have previously considered
cases involving attorneys who engaged in inappropriate sexual communication
and/or conduct in determining the appropriate sanction to impose for similar
misconduct directed toward a person in the attorney’s employ. In fact, we have
done so in two cases advanced by the parties and the board to support their
respective recommended sanctions in this case. In determining the appropriate
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sanction to impose in Mismas, 139 Ohio St.3d 346, 2014-Ohio-2483, 11 N.E.3d
1180, at ¶ 19, we examined Disciplinary Counsel v. Detweiler, 135 Ohio St.3d 447,
2013-Ohio-1747, 989 N.E.2d 41, in which an attorney had sent inappropriate text
messages of a sexual nature to, and made sexual advances on, a client.
{¶ 38} Similarly, in determining that a one-year suspension, with six
months stayed, was the appropriate sanction to impose for Skolnick’s longstanding
and pervasive pattern of verbally attacking his paralegal, we considered the stayed
six-month suspension that we had imposed for inappropriate and unprofessional
statements of a sexual nature an attorney made to a client on a single occasion. See
Skolnick, 153 Ohio St.3d 283, 2018-Ohio-2990, 104 N.E.3d 775, at ¶ 11, citing
Miller, 130 Ohio St.3d 1, 2011-Ohio-4412, 955 N.E.2d 359.
{¶ 39} Furthermore, we note that Bennett joined relator in citing Quatman,
108 Ohio St.3d 389, 2006-Ohio-1196, 843 N.E.2d 1205, as an example of an
attorney who had received a fully stayed suspension for misconduct involving
inappropriate sexual touching—even though the misconduct in that case was
directed at a client.
{¶ 40} In our view, the inherent differences between sexual misconduct
directed toward colleagues versus sexual misconduct directed toward clients should
not disqualify a case from being considered in fashioning the appropriate sanction
for Bennett’s misconduct in this case. On the contrary, our analysis in Mismas,
Skolnick, and countless other disciplinary cases demonstrates that those differences
are routinely recognized and considered by the board (and ultimately this court) in
determining the weight that any given precedent is afforded in establishing the
appropriate sanction for an attorney’s misconduct. We therefore overrule Bennett’s
second objection to the board’s recommended sanction.
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January Term, 2023
A conditionally stayed two-year suspension is the appropriate sanction for
Bennett’s misconduct in this case
{¶ 41} In his first objection, Bennett contends that the precedents cited by
the board support the imposition of a fully stayed six-month suspension in this case.
His primary arguments are that on the spectrum of misconduct identified in those
cases, this case falls closer to Berry, 166 Ohio St.3d 112, 2021-Ohio-3864, 182
N.E.3d 1184, than to Mismas, 139 Ohio St.3d 346, 2014-Ohio-2483, 11 N.E.3d
1180, or Skolnick, 153 Ohio St.3d 283, 2018-Ohio-2990, 104 N.E.3d 775, in terms
of severity as well as the relative imbalance of power between the respondent and
the victim.
{¶ 42} While we held the attorney in Berry to a higher standard than the
average attorney due to his status as a judge, his misconduct is arguably less
egregious than Bennett’s misconduct in this case. Berry did not know his victim
when he first sent her a friend request on social media, though she was a court
reporter assigned to the courtroom of another judge of the same court on which
Berry was serving. Berry at ¶ 4. After the court reporter accepted the friend
request, she “liked” some pictures that Berry had posted on social media of the
courthouse, and he sent her a private message inquiring about her connection to the
courthouse. Id. They exchanged several messages, and Berry extended an
invitation for the court reporter to stop by his chambers to meet in person. Id. When
she failed to take him up on the offer, he asked for her cellphone number so that
they could talk over the weekend. Id. at ¶ 5.
{¶ 43} Although the court reporter felt that she could not refuse Berry’s
request for her phone number given his status as a judge, id., it does not appear that
Berry ever tied that request or his subsequent invitations for lunch or drinks to the
court reporter’s continued employment. Instead of accepting the court reporter’s
lack of response as an implicit refusal of his invitations, Berry sent her dozens of
social-media messages in which he forwarded images, memes, or links to internet
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content that was overtly partisan, vulgar, offensive, or sexually suggestive. Id. at
¶ 9-11. However, Berry did not personally create that content or engage in any
communication with the court reporter about his own sex life or hers, nor did he
make any request for sexual favors or inappropriately touch his victim, as Bennett
did in this case. See id. at ¶ 4-11.
{¶ 44} Bennett claims to fully appreciate the imbalance of his status and
influence as an AUSA in comparison to J.S.’s status as a legal intern, yet he
maintains that he was not J.S.’s supervisor and that Judge Berry’s status, influence,
and power over his victim was similar—if not superior—to his own. Our opinion
in Berry did not expressly state whether the judge had any authority over the court
reporter’s employment. While it is evident that Berry had no direct supervisory
authority over the court reporter because she did not work in his courtroom, as a
judge on the court that employed her, he would have been one of 14 judges who
together shared the power to hire or fire her. See R.C. 1901.33(A) (providing that
the judges of a municipal court may appoint official court reporters); R.C. 1901.08
(authorizing the election of 14 judges to the Hamilton County Municipal Court).
{¶ 45} On the other hand, both Mismas and Skolnick appear to have
possessed the unfettered authority to hire, supervise, and fire their victims. Mismas
had hired the law student he victimized, and as he sexually harassed her, he told her
that her continued employment depended on her compliance with his demands.
Mismas, 139 Ohio St.3d 346, 2014-Ohio-2483, 11 N.E.3d 1180, at ¶ 4-5, 10, 23.
She resigned before he had the opportunity to fire her. Id. at ¶ 5. Similarly,
Skolnick’s victim was his own paralegal. Skolnick, 153 Ohio St.3d 283, 2018-
Ohio-2990, 104 N.E.3d 775, at ¶ 3. And our opinion in Skolnick suggests that while
the firm employed other attorneys, Skolnick had the power to hire and fire
employees. See id. at ¶ 10 (after receiving a letter with his victim’s accusations,
Skolnick “delegated some of his management duties to other attorneys in the firm”).
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{¶ 46} Although Bennett had no authority to hire or fire J.S., he possessed
more direct supervisory authority over her than Berry had over his victim but far
less than Mismas or Skolnick had over theirs. In her sworn statement to the OIG,
J.S. identified another AUSA as her direct supervisor and stated that she did not
consider Bennett to be a supervisor. However, she identified Bennett as one in a
short list of AUSAs for whom she worked during her USAO internships and further
stated that she did her most substantial work for Bennett. She further reported that
he would assign tasks to her and would review and evaluate her work. In his
objections to the board’s report, Bennett acknowledged that he “directed and
evaluated J.S.’[s] work on certain tasks.” And in his sworn statement to the OIG,
he characterized his relationship with J.S. as that of mentor and mentee. Thus, as a
practical matter, Bennett possessed more than a modicum of power and authority
over J.S.’s work, the contacts she made in the profession, and the possible trajectory
of her nascent legal career.
{¶ 47} There is no doubt that the verbal harassment at issue in Mismas and
Skolnick was more direct, pervasive, and shocking to the conscience than Bennett’s
inappropriate sexual communications toward J.S. Mismas was far more aggressive
than Bennett in steering conversations with his law clerk to sexual topics—and
continued to press the matter even after the law clerk told him that his questions
were inappropriate. See Mismas at ¶ 9-11. Almost two weeks after suggesting that
the law clerk perform a specific sex act for him, Mismas pressured her to take an
overnight business trip with him and insisted that her continued employment
depended on her compliance with his demands. Id. at ¶ 5, 10-12, 23. Mismas’s
harassment occurred over a period of just one month but was so egregious that it
resulted in the law clerk’s resignation. Id. at ¶ 4-5. Although Bennett’s misconduct
persisted for nearly 18 months through both of J.S.’s internships, J.S. found ways
to distance herself from him.
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{¶ 48} Skolnick’s verbal harassment of his paralegal was, likewise, far
more direct and degrading than Bennett’s harassment of J.S. Skolnick “berated [his
paralegal] for her physical appearance, dress, education, and parenting skills.”
Skolnick, 153 Ohio St.3d 283, 2018-Ohio-2990, 104 N.E.3d 775, at ¶ 12. He also
called her “a bitch, a ‘hoe,’ a dirtbag, and a piece of shit, and he told her that he
hoped she would die.” Id. And while driving his paralegal and another female
employee to lunch, he proposed that the two women perform a sex act on him as he
drove so that he could rate their performances. Id. at ¶ 5. Moreover, Skolnick’s
paralegal was stuck—she could not afford to leave the firm until she had secured
another job. Id. at ¶ 4. She endured more than two years of Skolnick’s abuse and
responded to more than 100 employment advertisements before she obtained a new
job and was finally able to leave. Id. at ¶ 4-6.
{¶ 49} Given Bennett’s position of authority over J.S., his implicit
conditioning of his professional assistance to J.S. on her willingness to provide
sexual favors, and his additional acts of misconduct consisting of his request for
nude photos, suggestion that he could be J.S.’s sexual partner, and intentional
touching of her breasts, we find that Bennett’s misconduct most closely aligns with,
but is somewhat less egregious than, that of Mismas.
{¶ 50} “We are ever mindful that the primary purpose of the disciplinary
process is not to punish the offender but to protect the public from lawyers who are
unworthy of the trust and confidence essential to the attorney-client relationship.”
Columbus Bar Assn. v. Kiesling, 125 Ohio St.3d 36, 2010-Ohio-1555, 925 N.E.2d
970, ¶ 44, citing Disciplinary Counsel v. Agopian, 112 Ohio St.3d 103, 2006-Ohio-
6510, 858 N.E.2d 368. And in this case, we acknowledge that Bennett has already
had a substantial sanction imposed for his misconduct through the loss of his
employment as an AUSA. We therefore conclude that it would be inequitable to
impose an actual suspension on Bennett equal to the unstayed portion of the
sanction that we imposed on Mismas—who had had no other sanctions imposed for
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his misconduct. Consequently, we sustain Bennett’s first objection to the extent
that he challenges the actual six-month suspension recommended by the board.
{¶ 51} In addition to the significant mitigating factors present in this case,
we acknowledge that Bennett self-reported to relator after the OIG concluded its
investigation. We also credit him for voluntarily seeking mental-health counseling
in an effort to understand why he had engaged in the misconduct and to learn how
to conduct himself appropriately going forward.
{¶ 52} Nevertheless, we share the board’s concern that Bennett may have
engaged in similar misconduct with other colleagues—though those acts were not
charged in the employment action against him or in this case. Bennett objects to
the board’s findings in that regard, arguing that the board improperly relied on
allegations of uncharged misconduct involving other colleagues that J.S. shared in
her sworn statement to the OIG because those allegations were hearsay and he had
lacked an opportunity to confront or cross-examine any witnesses regarding them.
However, our review of Bennett’s sworn statement to the OIG shows that Bennett
acknowledged that he may have engaged in similar misconduct by, as he described,
“bantering back and * * * forth” and joking in a “similar flirtatious manner” with
other colleagues he considered to be friends and that the OIG had confronted him
with his own text messages tending to prove that he had engaged in similar
misconduct with those colleagues. Although he claimed that none of these other
colleagues ever told him that they had been offended and that none had filed a
complaint against him, Bennett acknowledged that in retrospect, he may have
misread signs that they were not comfortable with his conduct. Furthermore,
Bennett expressly acknowledged during his testimony before the hearing panel in
this disciplinary case that he might have committed misconduct against other
colleagues besides J.S.
{¶ 53} Given the seriousness of the charged misconduct and Bennett’s
admission that his misconduct may have been more widespread, we conclude that
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a conditionally stayed suspension longer than the six-month suspension Bennett has
proposed is necessary and appropriate in this case.
{¶ 54} A two-year suspension, stayed in its entirety on the conditions that
Bennett engage in no further misconduct and that he continue his current course of
mental-health counseling, will best protect the public from additional harm. That
sanction will provide a strong incentive for Bennett to comply with his treatment
regimen and to conform his conduct to the requirements of the profession while
affording us the opportunity to remove him from the practice of law by revoking
the stay if he reoffends.
CONCLUSION
{¶ 55} Accordingly, Mark Stewart Bennett is hereby suspended from the
practice of law in Ohio for two years, with the entire suspension stayed on the
conditions that he commit no further misconduct, that he continue with his current
course of mental-health counseling for the duration of his suspension, and that in
the event his treating professional determines that his counseling is complete before
he has fully served his suspension, he report to the OLAP and comply with any
OLAP recommendations. If Bennett fails to comply with a condition of the stay,
the stay will be revoked and he will be required to serve the full two-year
suspension. Costs are taxed to Bennett.
Judgment accordingly.
FISCHER, DEWINE, DONNELLY, and STEWART, JJ., concur.
KENNEDY, C.J., concurs in part and dissents in part, with an opinion joined
by DETERS, J.
BRUNNER, J., not participating.
_________________
KENNEDY, C.J., concurring in part and dissenting in part.
{¶ 56} Respondent, Mark Stewart Bennett, is a former Assistant United
States Attorney. While serving in that position, he sexually harassed a legal intern
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for over two years. Addressing that misconduct, the Board of Professional Conduct
found two aggravating factors—Bennett had acted with a dishonest or selfish
motive, see Gov.Bar R. V(13)(B)(2), and he had harmed a vulnerable victim, see
Gov.Bar R. V(13)(B)(8).
{¶ 57} Downplaying the seriousness of Bennett’s misconduct, today, this
court opts to stay his suspension, thereby allowing him to continue to practice law.
While I agree with the majority that Bennett violated Prof.Cond.R. 8.4(h), as found
by the board, and that the two aggravating factors are present, I disagree with the
majority’s determination that a fully stayed suspension is the appropriate sanction
in this case.
{¶ 58} “Each disciplinary case involves unique facts and circumstances.”
Gov.Bar R. V(13)(A). Accordingly, this court relies on applicable precedent—
cases involving similar misconduct and aggravating and mitigating factors—to
ensure a fair and equitable disciplinary system. Our decisions in Lake Cty. Bar
Assn. v. Mismas, 139 Ohio St.3d 346, 2014-Ohio-2483, 11 N.E.3d 1180, and
Disciplinary Counsel v. Berry, 166 Ohio St.3d 112, 2021-Ohio-3864, 182 N.E.3d
1184, support the imposition of an actual suspension here. I would suspend Bennett
from the practice of law for one year with six months stayed on the conditions that
he (1) engage in no further misconduct, (2) complete six hours of continuing legal
education on sexual harassment, and (3) in addition to the requirements of Gov.Bar
R. V(24), provide proof that he has continued with his current course of mental-
health counseling for the duration of the suspension or as otherwise recommended
by a qualified healthcare professional. Therefore, I concur in part and dissent in
part.
I. Background
A. Misconduct
{¶ 59} I agree with the facts set forth in the majority opinion, but some facts
require repeating to remind Ohioans of the seriousness of Bennett’s conduct. From
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2017 to 2019, J.S. interned twice at the United States Attorney’s Office for the
Northern District of Ohio (“Northern District”). During this period, Bennett was
an Assistant United States Attorney for the Northern District. J.S. was a 24-year-
old law student when she started her first internship.
{¶ 60} Bennett admits that throughout J.S.’s first internship at the Northern
District, he
1. discussed his marital sex life with J.S.,
2. asked J.S. about her sex life,
3. suggested that he could be J.S.’s sexual partner, and
4. touched J.S.’s breasts with the back of his hand.
{¶ 61} Bennett also concedes that J.S.
1. believed that Bennett attempted to look up her skirt or was “looking at [her]
butt” on different occasions,
2. heard from a male intern that Bennett had made sexually inappropriate
comments about her,
3. said that she had received requests from Bennett to send him nude photos of
herself,
4. refused Bennett’s Snapchat requests, blocked his phone number, and blocked
him on Facebook, and
5. believed that Bennett’s touching her breasts was intentional because Bennett
made and held eye contact with her during the touching.
{¶ 62} After J.S.’s first internship ended, she sought to return to work at the
Northern District, so she asked Bennett whom she should contact about returning.
Bennett replied by asking “what she was willing to do to get back into the office,”
a question that J.S. believed contained sexual overtones. J.S. did not respond to
Bennett’s reply and ultimately returned for a second internship at the Northern
District.
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{¶ 63} Upon starting her second internship, J.S. requested to be stationed at
the Northern District’s Youngstown office rather than where Bennett was stationed
(either the Akron office or the Cleveland office). When she was required to work
at the Akron office, J.S. disliked interacting with Bennett so much that she would
leave the area if she saw him looking for her and would ask a colleague to use the
colleague’s workstation so that Bennett would not know that she was in the office.
{¶ 64} Bennett admits that during J.S.’s second internship, he
1. texted her about her sex life, including asking whether sex with her then-partner
was “really that good,”
2. asked what he would receive in exchange when J.S. requested a letter of
recommendation,
3. sent J.S. a Facebook message, asking her, “Why do you haunt my dreams?”
4. in a text-message exchange, texted J.S., “Nice. Can[’]t wait to have it” in
reference to J.S.’s butt, which he informed her “was looking wide for a while
there” when responding to a comment J.S. had made about her appearance, and
5. texted J.S., “Damn [you] for making me think about it again,” with “it” referring
to sexual activity with her.
{¶ 65} Bennett’s conduct led to an investigation by the Office of the
Inspector General of the United States Department of Justice. During that
investigation, Bennett admitted that he may have asked J.S. for nude photos on
Snapchat, a social-media application used for sending and receiving photos. In
Bennett’s sworn statement to the Office of the Inspector General, he also admitted
that he may have engaged in similar misconduct with other colleagues. The Office
of the Inspector General completed its investigation, determined that Bennett had
violated the Department of Justice’s sexual-harassment policy, and recommended
that Bennett’s employment be terminated. But before the Northern District could
terminate his employment, Bennett resigned.
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B. Board’s Report
{¶ 66} The board determined that Bennett’s conduct violated Prof.Cond.R.
8.4(h), a “catchall” provision that prohibits as professional misconduct a lawyer’s
engaging “in any other conduct that adversely reflects on the lawyer’s fitness to
practice law.”
{¶ 67} The board also found that two aggravating factors and four
mitigating factors are present in the case. For aggravating factors, the parties
stipulated and the board agreed that Bennett had acted with a dishonest or selfish
motive, see Gov.Bar R. V(13)(B)(2), and that he had harmed a vulnerable victim,
see Gov.Bar R. V(13)(B)(8). For mitigating factors, the parties stipulated and the
board found (1) the absence of a prior disciplinary record, (2) full and free
disclosure to the board or a cooperative attitude toward the proceedings, (3)
evidence of good character or reputation, and (4) imposition of other penalties or
sanctions. See Gov.Bar R. V(13)(C)(1), (4), (5), and (6).
{¶ 68} In considering the relevant caselaw, the board found that Bennett’s
misconduct did not rise to the level of the misconduct found in Mismas, 139 Ohio
St.3d 346, 2014-Ohio-2483, 11 N.E.3d 1180, Disciplinary Counsel v. Skolnick, 153
Ohio St.3d 283, 2018-Ohio-2990, 104 N.E.3d 775, Cincinnati Bar Assn. v. Young,
89 Ohio St.3d 306, 731 N.E.2d 631 (2000), Disciplinary Counsel v. Campbell, 68
Ohio St.3d 7, 623 N.E.2d 24 (1993), or Cleveland Metro. Bar Assn. v. Lockshin,
125 Ohio St.3d 529, 2010-Ohio-2207, 929 N.E.2d 1028.
{¶ 69} In Mismas, we imposed a one-year suspension, with six months
conditionally stayed, on an attorney for sending sexually charged text messages to
a law-student intern he had hired and for conditioning the student’s employment on
inappropriate demands. Mismas at ¶ 3. In Skolnick, we imposed a one-year
suspension, with six months conditionally stayed, on an attorney for his
longstanding and degrading verbal harassment of his paralegal. Skolnick at ¶ 3. In
Young, we imposed a two-year suspension, with one year conditionally stayed, on
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an attorney whose conduct included discriminatory and inappropriate acts and
comments toward multiple female law students who were working for that attorney.
Young at 313, 320-321. In Campbell, we imposed a one-year suspension on a judge
who had made unwelcome or offensive sexual remarks to, and physical contact
with, young lawyers. Campbell at 11. Finally, in Lockshin, we imposed an
indefinite suspension on an attorney who had engaged in a pattern of inappropriate
sexual communication and behavior with a number of women, including his clients,
and who had failed to file a timely notice of appeal on behalf of a client. Lockshin
at ¶ 1-2.
{¶ 70} The board here further found Bennett’s conduct to be more severe
than the conduct in Berry, 166 Ohio St.3d 112, 2021-Ohio-3864, 182 N.E.3d 1184,
in which we imposed a conditionally stayed six-month suspension on a judge for
sending constant inappropriate and vulgar messages. The board also considered
Disciplinary Counsel v. Quatman, 108 Ohio St.3d 389, 2006-Ohio-1196, 843
N.E.2d 1205, in which we imposed a conditionally stayed one-year suspension on
an attorney for putting his hands on a client’s breasts and saying, “You have very
nice breasts,” and Akron Bar Assn. v. Miller, 130 Ohio St.3d 1, 2011-Ohio-4412,
955 N.E.2d 359, in which we imposed a conditionally stayed six-month suspension
on an attorney who had made inappropriate and unprofessional statements of a
sexual nature to a client.
{¶ 71} Here, the board recommends that we impose a six-month suspension
and that, as a condition of reinstatement, in addition to the requirements of Gov.Bar
R. V(24), Bennett provide proof that he has continued with his current course of
mental-health counseling for the duration of his suspension or as otherwise
recommended by a qualified healthcare professional.
C. Bennett’s Objections
{¶ 72} Bennett proffers two objections. First, he opposes the board’s
recommendation of an actual six-month suspension. Instead, he argues that a
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stayed six-month suspension is appropriate. Second, he argues that the board erred
by relying on Prof.Cond.R. 8.4(h) cases involving relationships and sexual
misconduct between attorneys and clients.
II. Bennett’s Objections Should Be Overruled
{¶ 73} I concur in the majority’s decision to overrule Bennett’s second
objection related to the consideration of attorney-client caselaw. I further concur
in the majority’s analysis supporting that decision. But I dissent from the majority’s
decision to sustain Bennett’s first objection in part. I would wholly overrule
Bennett’s first objection based on his misconduct, the rule violation, the weight of
the aggravating factors compared to the mitigating factors, and our relevant
caselaw.
III. Relevant Rule and Aggravating and Mitigating Factors
A. Conduct that Adversely Reflects on the Lawyer’s Fitness to Practice Law
{¶ 74} Prof.Cond.R. 8.4(h) prohibits an attorney from engaging in “conduct
that adversely reflects on the lawyer’s fitness to practice law.” To find a violation
of Prof.Cond.R. 8.4(h), there must be either “clear and convincing evidence that the
lawyer has engaged in misconduct that adversely reflects on the lawyer’s fitness to
practice law, even though that conduct is not specifically prohibited by the rules,”
or “proof that the conduct giving rise to a specific rule violation is so egregious as
to warrant an additional finding that it adversely reflects on the lawyer’s fitness to
practice law.” Disciplinary Counsel v. Bricker, 137 Ohio St.3d 35, 2013-Ohio-
3998, 997 N.E.2d 500, ¶ 21.
{¶ 75} Here, Bennett stipulated to a violation of Prof.Cond.R. 8.4(h);
therefore, Bennett admits there is clear and convincing evidence that he engaged in
misconduct that adversely reflects on his fitness to practice law.
B. Aggravating and Mitigating Factors
{¶ 76} As stated above, each disciplinary case involves “unique facts and
circumstances,” Gov.Bar R. V(13)(A). Therefore, when considering instances of
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professional misconduct, the board shall consider aggravating and mitigating
factors. Id. Aggravating factors weigh in favor of “recommending a more severe
sanction.” Gov.Bar R. V(13)(B). Mitigating factors weigh in favor of
“recommending a less severe sanction.” Gov.Bar R. V(13)(C).
{¶ 77} In my view, however, aggravating factors and mitigating factors do
not necessarily have equal weight. “The importance or weight of a mitigating or
aggravating factor depends on the facts of the case.” Disciplinary Counsel v.
Nowicki, __ Ohio St.3d __, 2023-Ohio-3079, __ N.E.3d __, ¶ 59 (Kennedy, C.J.,
concurring in part and dissenting in part). Here, the board found two aggravating
factors—Bennett had acted with a dishonest or selfish motive, see Gov.Bar
R. V(13)(B)(2), and he had harmed a vulnerable victim, see Gov.Bar R.
V(13)(B)(8). The board found four mitigating factors: (1) the absence of a prior
disciplinary record, (2) full and free disclosure to the board or a cooperative attitude
toward the proceedings, (3) evidence of good character or reputation, and (4)
imposition of other penalties or sanctions. See Gov.Bar R. V(13)(C)(1), (4), (5),
and (6).
{¶ 78} The aggravating factors found here weigh heavily. Bennett
exhibited continual selfish conduct over the course of two years. During that time,
his actions toward J.S. were self-serving and without consideration of the harm he
was causing to J.S., his employer, or the profession. The extent of the vulnerability
and resulting harm to J.S. also cannot be overstated. As a female intern and aspiring
professional, J.S. was at risk of being taken advantage of, and that is what Bennett
did. While in his position of power, Bennett caused J.S. to believe that she needed
to go along with Bennett’s sexual advances to ensure success in her career. Not
only is it possible that Bennett harmed J.S.’s career, but also there is no telling the
emotional and psychological harm J.S. may have faced or continues to face.
{¶ 79} Moreover, the mitigating factors do not overcome the aggravating
factors. The majority places heavy reliance on the fact that other penalties or
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sanctions were imposed on Bennett under Gov.Bar R. V(13)(C)(6)—that is, that his
misconduct resulted in the loss of his employment. The majority reasons that “it
would be inequitable to impose an actual suspension on Bennett equal to the
unstayed portion of the sanction that we imposed on Mismas—who had had no
other sanctions imposed for his misconduct.” Majority opinion, ¶ 50.
{¶ 80} The majority misses the mark here. As explained in more detail
below, Mismas was his own boss whereas Bennett worked for the United States
government. Mismas could not have received another sanction similar to Bennett’s,
because Mismas could not fire himself or have the expectation he would be fired as
a result of his conduct. But on the other hand, if an attorney who works for the
United States government sexually harassed a fellow employee, let alone an intern
the attorney has supervisory authority over, that attorney can expect consequences
to flow from his actions. Equity is not served by failing to realize this distinction.
IV. Our Caselaw Warrants an Actual Suspension
A. Lake Cty. Bar Assn. v. Mismas Is on Point
{¶ 81} While the board reviewed, and the majority relies on, a variety of
cases, one stands out when making comparisons to the facts here. In Mismas, 139
Ohio St.3d 346, 2014-Ohio-2483, 11 N.E.3d 1180, at ¶ 4, Mismas sought to hire a
law student to work at his law firm. Ms. C., a female law student, interviewed for
the position. Id. From the date of the interview and for nearly three weeks
thereafter, Mismas and Ms. C. exchanged numerous text messages, some of which
contained inappropriate advances by Mismas. Id. at ¶ 4-5, 9-12.
{¶ 82} In the text exchange that began the evening after the job interview,
Mismas told Ms. C. that she would “need to take a few beatings” before she could
learn to give one, and he then rephrased that statement in sexual terms and asked
whether she had engaged in the type of sex act he had referred to. Id. at ¶ 9. Ms.
C. told him to stop and that their conversation was inappropriate, but he continued
and insisted that there needed to be “trust” between them because the job was “not
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for the weak.” Id. As the conversation continued around midnight, Mismas wanted
to know how Ms. C. could ensure her loyalty to him. Id. at ¶ 10. Mismas proceeded
to suggest that Ms. C. perform a sex act for him. Id. Ms. C. urged Mismas to admit
that he was joking, and Mismas repeatedly refused and insisted that her
employment depended on her compliance, telling her, “If you show up at 11 you
know what’s expected.” Id. The next day, Mismas asserted that their conversation
had been a joke after all. Id. at ¶ 11.
{¶ 83} Mismas subsequently invited Ms. C. to two out-of-town events—a
deposition and an overnight trip to Washington, D.C. Id. at ¶ 12. When she
explained she already had plans and would not be joining him on the trip to
Washington, Mismas “belittled her for her rejection and pressured her to go by
suggesting that her refusal would have adverse consequences for her employment,
texting her, ‘That’s strike 1 for you. 3 strikes and you are out.’ ” Id. Ms. C. resigned
the next day. Id.
{¶ 84} The board found and this court agreed that Mismas violated
Prof.Cond.R. 8.4(h). Mismas, 139 Ohio St.3d 346, 2014-Ohio-2483, 11 N.E.3d
1180, at ¶ 13. The board also found two aggravating factors—Mismas had acted
with a dishonest or selfish motive and had caused harm to Ms. C., a vulnerable
victim. Id. at ¶ 18. The board found six mitigating factors, but this court ultimately
accepted four: (1) the absence of a prior disciplinary record, (2) full and free
disclosure to the board and a cooperative attitude toward the proceedings, (3)
evidence of good character and reputation, and (4) alcohol dependency. Id. at ¶ 15-
18, 24.
{¶ 85} Bennett and Mismas violated the same rule, share the same
aggravating factors, and share all but one of the same mitigating factors. But the
similarities between these tales of two attorneys do not end there. Both Bennett
and Mismas sexually harassed a law student who was interning at their place of
employment and over whom they had supervisory control. The majority attempts
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to justify a fully stayed suspension by distancing Bennett’s misconduct from the
facts of Mismas, but that attempt is not persuasive.
B. The Majority’s Attempt to Distance Bennett’s Misconduct from Mismas’s
Misconduct Is Not Persuasive
{¶ 86} As we explained in Mismas, the attorney there engaged “in
undignified and unprofessional conduct by targeting an aspirant to the profession
for sexual harassment,” Mismas at ¶ 21. We elaborated:
Legal clerkships play an important role in developing the
practical skills necessary for law students to become competent,
ethical, and productive members of the legal profession. Often, the
skills, professional relationships, and reputations that students
develop in these entry-level positions open the doors to their first
full-time legal employment once they graduate and pass the bar
exam. These first jobs can set the course for a new attorney’s entire
legal career. Attorneys who hire law students serve not only as
employers but also as teachers, mentors, and role models for the next
generation of our esteemed profession. To that end, we expect that
attorneys will conduct themselves with a level of dignity and
decorum befitting these professional relationships.
Unwelcome sexual advances are unacceptable in the context
of any employment, but they are particularly egregious when they
are made by attorneys with the power to hire, supervise, and fire the
recipient of those advances.
Id. at ¶ 22-23.
{¶ 87} The majority appropriately notes that Bennett possessed direct
supervisory authority over J.S., that he would assign her tasks, that he would review
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and evaluate her work, and that they possessed a mentor-mentee relationship, but
the majority quarrels with the fact that Bennett’s authority over J.S. might be “far
less than” Mismas’s authority over his victim. Majority opinion at ¶ 46. In Mismas,
139 Ohio St.3d 346, 2014-Ohio-2483, 11 N.E.3d 1180, we did not distinguish an
attorney’s power to supervise recipients of sexual advances from their powers to
hire or fire them. We should not downplay the power dynamic between aspiring
professionals and established attorneys by splitting hairs about the degree of
authority an attorney has over an intern.
{¶ 88} Internships are a crucial step in advancing one’s career. And “[s]ince
students use internships to make contacts and obtain future employment, as well as
fulfill degree requirements, and rely on supervisors for experience and
recommendations, they are susceptible to sexual bribery or the ‘solicitation of sex-
linked behavior (e.g., dating) by promise of rewards.’ ” Maurer & Seibel,
Addressing Problems of Power and Supervision in Field Placements, 17 Clinical
L.Rev. 145, 153 (2010), quoting Bowman & Lipp, Legal Limbo of the Student
Intern: The Responsibility of Colleges and Universities to Protect Student Interns
Against Sexual Harassment, 23 Harv.Women’s L.J. 95, 102 (2000).
{¶ 89} In fact, any attorney’s sexual advances directed at an intern are
enough to cause concern. It is true that “[a]s eager students who want to make a
good impression and learn as much as they can, interns may feel uncomfortable
rebuffing sexual advances. A student intern may therefore attempt to ignore sexual
advances and not complain about inappropriate behavior if she fears that rejecting
those advances will hinder her success.” Bowman & Lipp at 101-102.
{¶ 90} The majority also attempts to distinguish Mismas from the facts of
this case on the basis that the conduct in Mismas resulted in the intern’s resignation.
Majority opinion at ¶ 47. The majority additionally gives credence to the fact that
“J.S. found ways to distance herself from” Bennett. Id. But it is imprudent for the
majority to determine the appropriate sanction for attorney misconduct based on
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the actions or inactions of the victim. The victim is not the focus of the inquiry in
attorney-misconduct cases. The victim has no duty to mitigate or diminish contact
with the attorney or to dimmish the opportunities an attorney would have to engage
in misconduct. Our focus, and our only focus, is on what the attorney did.
{¶ 91} In fact, Bennett’s actions made J.S. uncomfortable, and she stated,
“[T]his is what you have to deal with and you don’t say anything because then
you’re going to hurt your chances at a career.” Assigning such weight to J.S.’s
actions or inactions does not send a good message to aspiring attorneys in this state.
{¶ 92} Additionally, if we are pointing out distinctions between the two
cases, we should also recognize that Bennett’s conduct spanned two years,
compared to approximately three weeks in Mismas, and that Bennett touched J.S.’s
breast, while Mismas had no physical contact with Ms. C. Therefore, even if, as
the majority believes, Bennett’s conduct “most closely aligns with, but is somewhat
less egregious than, that of Mismas,” majority opinion at ¶ 49, a one-year
suspension with six months stayed would still be appropriate due to the physical
contact and the extended period of harassment. By making the leap to a fully stayed
suspension, the majority ignores precedent that requires an actual suspension when
conduct like Bennett’s arises.
C. Disciplinary Counsel v. Berry Further Supports Imposition of an Actual
Suspension
{¶ 93} In Berry, 166 Ohio St.3d 112, 2021-Ohio-3864, 182 N.E.3d 1184,
Berry, a judge, sent a Facebook friend request to a court reporter assigned to another
courtroom. Id. at ¶ 4. After the court reporter accepted the request, Berry messaged
the court reporter and eventually invited her to his chambers. Id. Around a week
later, Berry sent the court reporter a message, saying that she was “lurking” and
that she had not stopped by his chambers yet. Id. at ¶ 5. Berry at one point asked
for the court reporter’s cellphone number, which she gave him. Id. The parties
stipulated that if the court reporter had testified at Berry’s disciplinary hearing, she
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would have said that she gave Berry her phone number because she felt that she
could not refuse. Id.
{¶ 94} One Saturday, Berry called the court reporter, and according to her,
Berry sounded intoxicated and invited her out for lunch. Id. at ¶ 6. She declined
Berry’s invitation. Id. He also asked the court reporter to stop by his office because
he intended to offer her and her children tickets to an event, id. at ¶ 7, asked her out
again but this time for lunch or drinks, id. at ¶ 8, and sent her 72 messages on
Facebook, with most resulting in a one-sided conversation and many being overly
partisan or vulgar, id. at ¶ 9-10.
{¶ 95} The board found and we agreed that Berry violated Jud.Cond.R. 1.2
(requiring a judge to act at all times in a manner that promotes public confidence in
the independence, integrity, and impartiality of the judiciary and to avoid
impropriety and the appearance of impropriety). Berry at ¶ 13. The board found
two aggravating factors—Berry had acted with a selfish motive and he had abused
his judicial position when he engaged with the court reporter. Id. at ¶ 15. The
board found three mitigating factors—Berry had a clean disciplinary record, he had
made a timely and good-faith effort to rectify the consequences of his misconduct,
and he had made full and free disclosures to the board and had a cooperative attitude
toward the disciplinary proceedings. Id.
{¶ 96} In analyzing Berry’s conduct, we noted that we have held that
“judges are held to higher standards of integrity and ethical conduct than attorneys
or other persons not invested with the public trust.” (Emphasis added and cleaned
up.) Id., 166 Ohio St.3d 112, 2021-Ohio-3864, 182 N.E.3d 1184, at ¶ 19. We
imposed a conditionally stayed six-month suspension on Berry. Id. at ¶ 21.
D. Bennett’s Misconduct Is More Egregious than Berry’s Misconduct
{¶ 97} The majority rightly recognizes that Bennett’s misconduct is more
egregious than Berry’s misconduct, majority opinion at ¶ 42, and that Bennett
possessed more direct supervisory authority over J.S. than Berry did over his
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victim, id. at ¶ 46. After coming to those conclusions, the reasonable next step
would be to impose discipline on Bennett that is more impactful than the entirely
stayed suspension we imposed on Berry—for example, an actual suspension. But
the majority balks in taking that next step and fails to see that even if Bennett’s
conduct is more egregious than Berry’s and less egregious than Mismas’s, the
particular facts of this case, when viewed beside Mismas, 139 Ohio St.3d 346,
2014-Ohio-2483, 11 N.E.3d 1180, and Berry, support a one-year suspension with
six months stayed.
V. An Actual Suspension Is Necessary to Protect the Public
A. Protecting the Public
{¶ 98} The primary purpose of attorney discipline “is not to punish the
offender, but to protect the public.” Disciplinary Counsel v. O’Neill, 103 Ohio
St.3d 204, 2004-Ohio-4704, 815 N.E.2d 286, ¶ 53. If the majority were to impose
an actual suspension here, this court would fulfill its role of protecting the public
“from lawyers who are unworthy of the trust and confidence essential to the
attorney-client relationship,” Columbus Bar Assn. v. Kiesling, 125 Ohio St.3d 36,
2010-Ohio-1555, 925 N.E.2d 970, ¶ 44.
{¶ 99} “Protecting the public * * * is not strictly limited to protecting
clients from a specific attorney’s potential misconduct. Imposing attorney-
discipline sanctions also protects the public by demonstrating to the bar and the
public that this type of conduct will not be tolerated.” Disciplinary Counsel v.
Schuman, 152 Ohio St.3d 47, 2017-Ohio-8800, 92 N.E.3d 850, ¶ 17. What the
majority does today is tell attorneys and the public alike that an attorney in a
position of power can continue to sexually harass a law-student intern for over two
years, inappropriately touch that intern, and not face any actual time away from
practicing law. Any punishment Bennett would face from an actual suspension is
merely a byproduct of the protection the suspension would afford vulnerable
persons from being harmed.
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B. As a Federal Prosecutor, Bennett Was Subject to a Higher Standard of Conduct
{¶ 100} When someone gains the privilege to join the legal profession in
Ohio, he or she swears an oath, promising to “conduct [himself or herself] with
dignity and civility and show respect toward * * * fellow professionals, and all
other persons.” Gov.Bar R. I(9)(A). There is no question that Bennett violated his
oath when he used his position of power to sexually harass an intern at his place of
employment. But Bennett’s position as a federal prosecutor means he was bound
by more than just the baseline attorney oath. In that position, he was a person
“invested with the public trust,” Berry, 166 Ohio St.3d 112, 2021-Ohio-3864, 182
N.E.3d 1184, at ¶ 19.
{¶ 101} As an Assistant United States Attorney, Bennett was required under
the Department of Justice’s “Justice Manual” to comply with rules on government
ethics and applicable rules of professional conduct. U.S. Dept. of Justice, Justice
Manual, Section 1-4.010 (2018), available at https://www.justice.gov/jm/jm-1-
4000-standards-conduct#1-4.010 (accessed Nov. 27, 2023)
[https://perma.cc/VHD5-B56W]. The Justice Manual states, “Government ethics
rules implement this common value: public service is a public trust, meaning that
the decisions and actions that federal employees take must be made in the best
interests of the American people.” (Emphasis added.) Id. Complying with these
rules “supports the credibility of and faith in government decisions and promotes
the common good.” Id.
{¶ 102} Other state courts have recognized the important position that
prosecutors hold, noting, for example, that “[i]t is not too much to say that a lawyer
who holds the position of [prosecutor], with the substantial powers of that office,
assumes responsibilities beyond those of other lawyers and must be held to the
highest standard of conduct.” People v. Brown, 726 P.2d 638, 641 (Colo.1986). A
prosecutor should be held to a higher standard than other attorneys “because of the
unique function he or she performs in representing the interests, and in exercising
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the sovereign power, of the state.” People v. Hill, 17 Cal.4th 800, 820, 952 P.2d
673, 72 Cal.Rptr.2d 656 (1998).
{¶ 103} Bennett’s actions tainted the public trust. His conduct toward J.S.
undermined the credibility of and public faith in government, impeded the common
good, and were not in the best interests of the American people, especially J.S. Not
only was Bennett in a position of power over J.S. from a supervisory standpoint,
but he was also a representative of the United States and possessed all the powers
that comes with that position. His actions demeaned both the legal profession and
his government office. It is hard to justify a fully stayed suspension if these higher
standards were not enough to deter Bennett’s misconduct. Rather, an actual
suspension is necessary to protect the public.
C. Possibility of Similar Misconduct
{¶ 104} Further, as recognized by the majority, Bennett acknowledged at
both his disciplinary hearing and in his sworn statement to the Office of the
Inspector General that he might have committed similar misconduct against other
colleagues besides J.S. Majority opinion at ¶ 52. The majority attempts to use this
testimony and “the seriousness of the charged misconduct,” id. at ¶ 53, to justify a
longer stayed suspension than Bennett requested—two years compared to six
months.
{¶ 105} The majority raises these additional concerns for naught because it
ultimately imposes a fully stayed suspension. But these concerns only further
support the conclusion that an actual suspension is necessary to protect the public.
If, as these statements indicate, Bennett’s misconduct is more widespread, an actual
suspension would prevent other vulnerable people from being harmed and would
therefore protect the public.
VI. Conclusion
{¶ 106} This court, as the arbiter of the legal profession in this state, has a
duty to protect the public from attorney misconduct by outlining the discipline
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attorneys will face for their actions. In doing so, we must go forward, not backward,
in gauging the appropriate discipline based on the misconduct, caselaw, and
surrounding factors. Guided by the contours of Mismas, 139 Ohio St.3d 346, 2014-
Ohio-2483, 11 N.E.3d 1180, and Berry, 166 Ohio St.3d 112, 2021-Ohio-3864, 182
N.E.3d 1184, Bennett’s selfish misconduct, and the vulnerability of and resulting
harm to J.S., we are led to but one appropriate sanction: a one-year suspension from
the practice of law with six-months conditionally stayed. I fear that today’s
decision by the majority takes us a step in the wrong direction: backward.
{¶ 107} For these reasons, I would suspend Bennett from the practice of law
for one year with six months stayed on the conditions that Bennett (1) engage in no
further misconduct, (2) complete six hours of continuing legal education on sexual
harassment, and (3) in addition to the requirements of Gov.Bar R. V(24), provide
proof that he has continued with his current course of mental-health counseling for
the duration of his suspension or as otherwise recommended by a qualified
healthcare professional.
{¶ 108} Therefore, I concur in part and dissent in part.
DETERS, J., concurs in the foregoing opinion.
_________________
Joseph M. Caligiuri, Disciplinary Counsel, and Matthew A. Kanai,
Assistant Disciplinary Counsel, for relator.
Koblentz, Penvose, & Froning, L.L.C., Richard S. Koblentz, Bryan L.
Penvose, and Nicholas E. Froning, for respondent.
_________________
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