[Cite as Allen Cty. Bar Assn. v. Bartels, 124 Ohio St.3d 527, 2010-Ohio-1046.]




                   ALLEN COUNTY BAR ASSOCIATION v. BARTELS.
                        [Cite as Allen Cty. Bar Assn. v. Bartels,
                        124 Ohio St.3d 527, 2010-Ohio-1046.]
Attorneys at law — Misconduct — Sexual activity with a client — Consent-to-
        discipline agreement — Public reprimand.
  (No. 2009-2238 — Submitted January 13, 2010 — Decided March 25, 2010.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                     Discipline of the Supreme Court, No. 09-053.
                                  __________________
        Per Curiam.
        {¶ 1} Respondent, N. Shannon Bartels of Lima, Ohio, Attorney
Registration No. 0064012, was admitted to the practice of law in Ohio in 1994.
The Board of Commissioners on Grievances and Discipline recommends that we
publicly reprimand respondent based on its finding that she engaged in sexual
activity with a client. We accept the board’s finding of misconduct and the
recommendation of a public reprimand.
        {¶ 2} Relator, Allen County Bar Association, filed a complaint charging
respondent with violating several Rules of Professional Conduct, including
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 before the
representation commenced).          After respondent initially submitted an answer
denying that she had committed any misconduct, the parties entered into a
consent-to-discipline agreement, filed pursuant to Rule 11 of the Rules and
Regulations Governing Procedure on Complaints and Hearings Before the Board
of Commissioners on Grievances and Discipline (“BCGD Proc.Reg.”), in which
they stipulated to facts and misconduct and proposed a public reprimand. The
board accepted the agreement and recommends a public reprimand.
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                                    Misconduct
       {¶ 3} The parties stipulated that in February 2008, a client retained
respondent as his attorney for a postdivorce matter involving custody and
visitation. Prior to respondent’s representation of the client, there had been no
sexual or romantic relationship between them.
       {¶ 4} Respondent met with both the client and the client’s wife and
attended court conferences on their behalf. After meeting with both the client and
his wife, respondent attended a hearing that resulted in the settlement of the case.
Respondent reviewed a proposed judgment entry resolving the case and faxed it to
her client for his review. On May 22, 2008, the judgment entry was submitted to,
and signed by, the court.
       {¶ 5} On the same day that the judgment was entered, respondent met
with the client and engaged in sexual activity with him. Respondent thereafter
sent a letter to her client with the judgment entry and bill and faxed a copy of the
entry modifying custody and visitation to the county child support enforcement
agency.    Respondent’s sexual relationship with her client continued until
September 1, 2008.
       {¶ 6} On September 22, 2008, respondent received a letter from an
attorney notifying her of problems regarding visitation, custody, and the payment
of medical bills for her client’s minor child. Respondent forwarded the letter to
her client. In late September 2008, after she was confronted by her client’s wife
about the affair, respondent admitted that she had engaged in sexual activity with
her client. The client’s wife thereafter filed a grievance against respondent.
       {¶ 7} Respondent admitted that her conduct violated Prof.Cond.R. 1.8(j),
and relator withdrew its charges of other ethical violations.            We accept
respondent’s admissions.
                                     Sanction




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                                January Term, 2010




          {¶ 8} Comment 17 to Prof.Cond.R. 1.8 explains the rationale for the
prohibition in subsection 1.8(j) against a lawyer’s having sexual activity with a
client:
          {¶ 9} “The relationship between lawyer and client is a fiduciary one in
which the lawyer occupies the highest position of trust and confidence. The
relationship is almost always unequal; thus, a sexual relationship between lawyer
and client can involve unfair exploitation of the lawyer’s fiduciary role, in
violation of the lawyer’s basic ethical obligation not to use the trust of the client
to the client’s disadvantage. In addition, such a relationship presents a significant
danger that, because of the lawyer’s emotional involvement, the lawyer will be
unable to represent the client without impairment of the exercise of independent
professional judgment. Moreover, a blurred line between the professional and
personal relationships may make it difficult to predict to what extent client
confidences will be protected by the attorney-client evidentiary privilege, since
client confidences are protected by privilege only when they are imparted in the
context of the client-lawyer relationship. Because of the significant danger of
harm to client interests and because the client’s own emotional involvement
renders it unlikely that the client could give adequate informed consent, this rule
prohibits the lawyer from engaging in sexual activity with a client regardless of
whether the relationship is consensual and regardless of the absence of prejudice
to the client, unless the sexual relationship predates the client-lawyer relationship.
A lawyer is also prohibited from soliciting a sexual relationship with a client.”
          {¶ 10} In Cincinnati Bar Assn. v. Schmalz, 123 Ohio St.3d 130, 2009-
Ohio-4159, 914 N.E.2d 1024, we considered our precedent in disciplinary cases
involving sexual activity between lawyers and their clients in determining the
appropriate sanction. We first noted that we have imposed harsher sanctions
when the sexual relationship either “formed part of a larger pattern of
misconduct” or was “linked with other disciplinary violations or an actual adverse



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impact on the quality of the legal representation.” Id. at ¶ 8, citing Disciplinary
Counsel v. Sturgeon, 111 Ohio St.3d 285, 2006-Ohio-5708, 855 N.E.2d 1221, ¶
18, 29-30 (disbarment), and Disciplinary Counsel v. Krieger, 108 Ohio St.3d 319,
2006-Ohio-1062, 843 N.E.2d 765, ¶ 29-30 (suspension).
        {¶ 11} In Schmalz, however, at ¶ 9, we held that a public reprimand was
warranted for the attorney’s violation of Prof.Cond.R. 1.8(j) and other Rules of
Professional Conduct because “in spite of the improprieties, respondent
effectively performed her function as an attorney in the criminal representation
and * * * a public reprimand for the stated violations will adequately deter her
from further violations.”
        {¶ 12} Similarly, respondent’s isolated violation of Prof.Cond.R. 1.8(j) in
an otherwise unblemished legal career had no adverse impact upon her
representation of the client and was not part of a larger pattern of ethical
misconduct. In addition, the parties’ stipulation identified the presence of several
mitigating factors, including respondent’s lack of a prior disciplinary record,
absence of a dishonest or selfish motive, cooperative attitude toward the
disciplinary proceedings, and positive character evidence.         BCGD Proc.Reg.
10(B)(2)(a), (b), (d), and (e).         Therefore, the recommended sanction is
commensurate with respondent’s misconduct.             Respondent is hereby publicly
reprimanded. Costs are taxed to respondent.
                                                               Judgment accordingly.
        MOYER,     C.J.,    and    PFEIFER,       LUNDBERG   STRATTON,   O’CONNOR,
O’DONNELL, LANZINGER, and CUPP, JJ., concur.
                                  __________________
        Baran, Piper, Tarkowsky, Fitzgerald & Theis Co., L.P.A., and Robert B.
Fitzgerald, for relator.
        Kettlewell & Donchatz, L.L.C., and Charles J. Kettlewell, for respondent.
                             ______________________




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