disciplinary handbook: volume v - Supreme Court - State of Ohio

Schmaltz, Cincinnati Bar Assn. v.
123 Ohio St.3d 130, 2009-Ohio-4159. Decided 8/29/2009.
Case Summaries- 298
Respondent and relator entered a consent-to-discipline agreement which the panel and board adopted.
Respondent was appointed to represent a criminal defendant on two separate indictments. In March 2007,
both cases were tried to a jury. As to the first indictment, the jury acquitted the defendant. As to the
second indictment, the jury acquitted the defendant on all but two charges on which the jury could
not reach a verdict. The defendant declined the prosecutor‘s offered plea bargain with respect to
those remaining charges that would have required him to serve two years. Respondent consistently
advised the client to accept the offer. In November 2007, at a second trial, the defendant was convicted
and sentenced to five years and five months in prison. Respondent then filed a grievance stating that
respondent had engaged in a romantic relationship with him, that the relationship left him vulnerable,
created a conflict of interest, and motivated the respondent to seek acquittal so the two could be
together rather than accept the plea bargain. During relator‘s first investigation, respondent was
unrepresented and stated she had a ―friendship‖ with the client. Later, an attorney investigating the
defendant‘s allegations for the trial judge gave a CD with recordings of over 50 hours of respondent‘s and
defendant‘s phone calls that had been monitored by the sheriff‘s department with the knowledge of the
participants. The calls contained explicit descriptions of sexual acts and professions of love between
respondent and defendant, including at least three calls in which respondent requested and/or engaged in
telephonic sexual activity with the client. In response to relator‘s interrogatories, respondent admitted she
engaged in ―personal conversations‖ that were ―inappropriate.‖ After the CD was given to respondent‘s
counsel, relator conducted a second interview with respondent and she acknowledged the sexual
component of the relations and admitted she discussed the possibility of pursuing the relationship
following his release from custody and she stated ―I screwed up. I got too close.‖ As part of the consentto-discipline
agreement the parties stipulated that respondent‘s initial minimization of the relationship as
an aggravating factor, and her full disclosure and no prior discipline as mitigating factors. BCGD
Proc.Reg. 10(B)(1)(f), 10(B)(2)(a) and (d). Under the consent-to- discipline agreement respondent
admits violations of the oath of office, Prof.Cond.R. 1.7(a)(2), and 1.8(j) and agrees to a public
reprimand. The Supreme Court of Ohio adopted the consent-to discipline agreement and so ordered a
public reprimand. The court found this case more similar to sexual misconduct cases in which
attorneys have been publicly reprimanded [DiPietro (1994) and Engler (2006)] than sexual misconduct
cases in which attorneys have been suspended [Krieger (2006)] and permanently disbarred [Sturgeon
(2006)]. The court noted that respondent, in spite of improprieties, effectively performed her function
as an attorney and a public reprimand will adequately deter her from further violations.
Rules Violated: Prof.Cond.R. 1.7(a)(2), 1.8(j)
Aggravation: (f)
Mitigation: (a), (d)
Prior Discipline: NO Procedure/ Process Issues: NO Criminal Conduct: NO
Public Official: NO Sanction: Public Reprimand