[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Sarver, Slip Opinion No. 2018-Ohio-4717.]




                                        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. 2018-OHIO-4717
                        DISCIPLINARY COUNSEL v. SARVER.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
        may be cited as Disciplinary Counsel v. Sarver, Slip Opinion No.
                                   2018-Ohio-4717.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct,
        including soliciting or engaging in sexual activity with a client, committing
        an illegal act that adversely reflects on the lawyer’s honesty or
        trustworthiness, and engaging in conduct involving dishonesty, fraud,
        deceit, or misrepresentation—Two-year license suspension, with 18 months
        stayed on conditions.
   (No. 2017-1081—Submitted May 22, 2018—Decided November 28, 2018.)
   ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
                                 Court, No. 2017-015.
                                 __________________
                             SUPREME COURT OF OHIO




       KENNEDY, J.
       {¶ 1} Respondent, Jason Allan Sarver, of Rockbridge, Ohio, Attorney
Registration No. 0082073, was admitted to the practice of law in Ohio in 2007.
       {¶ 2} In a formal complaint certified to the Board of Professional Conduct
on April 6, 2017, relator, disciplinary counsel, charged Sarver with four ethical
violations arising from his sexual relationship with a client. Initially, the parties
entered into an agreement for discipline by consent and stipulated to a two-year
suspension, with the entire suspension stayed on just one condition—that Sarver
not engage in any further misconduct. The board accepted the consent-to-discipline
agreement and the stipulated sanction and recommended that we do so also.
However, we rejected that sanction and remanded the matter for additional
proceedings.     150 Ohio St.3d 1439, 2017-Ohio-7742, 82 N.E.3d 1173.
Subsequently, at a hearing before a panel of the board, the parties presented
stipulations of fact, misconduct, and aggravating and mitigating factors, submitted
28 joint exhibits, and recommended that Sarver be suspended from the practice of
law for two years, with the entire suspension stayed on multiple conditions.
       {¶ 3} The panel adopted the parties’ stipulations and recommended
sanction, and the board again adopted the panel’s report in its entirety, and no
objections have been filed. Although we agree with the finding that Sarver
committed professional misconduct, we reject the board’s recommended sanction
and conclude that Sarver’s misconduct warrants a suspension from the practice of
law for two years, with the last 18 months of the suspension stayed on the
conditions recommended by the board.
                                    Misconduct
       {¶ 4} Sarver and J.B. met each other in 2012 when Sarver represented J.B.’s
then boyfriend in a legal matter. On September 11, 2015, J.B. reached out to Sarver
when she needed “a good attorney for felony……some stupid shit happened and I
really need to talk to u its not good.” The next day, Sarver and J.B. met at a




                                         2
                                January Term, 2018




Columbus restaurant, discussed J.B.’s criminal case over drinks, and then had sex
in Sarver’s vehicle in the parking lot.
       {¶ 5} J.B. was charged with theft in the Hocking County Municipal Court
and a warrant was issued for her arrest. According to Sarver, he was unaware that
a warrant had been issued when he subsequently instructed her to turn off the
Global Positioning System (“GPS”) on her mobile phone so that law enforcement
could not track her. Several days later, a grand jury indicted J.B. for multiple
felonies, and due to Sarver’s advice to turn off the GPS on her mobile phone, she
avoided arrest for almost one month before being apprehended.
       {¶ 6} The judge presiding over J.B.’s arraignment appointed Sarver to
represent her, and Sarver, now representing an indigent client as court-appointed
counsel, engaged in sexual activity with her at least seven more times over the next
four months. They also trespassed onto Sarver’s neighbor’s property to use a hot
tub.
       {¶ 7} In the meantime, Sarver filed a petition to run for Hocking County
Prosecuting Attorney. And although rumors of his sexual relationship with J.B.
soon spread, Sarver falsely denied the rumors to the judge presiding over J.B.’s
criminal case on two separate occasions. Around the same time that Sarver had
lied about his inappropriate relationship with J.B. to the judge, the Hocking County
Sherriff’s Office began investigating Sarver. Detectives interviewed J.B. and
promised her a reduced sentence if she disclosed the true nature of her relationship
with Sarver. J.B. agreed to cooperate with the investigation, and during her
interview with detectives, she stated that Sarver had “insinuated” that he would help
J.B. with her “warrants and cases for sexual favors.” She told the detectives that
she had “problems saying no to something like that * * *. You feel kinda forced
into it. * * * And, you know, of course, I had something over my head, I was facing
7 felonies.”




                                          3
                             SUPREME COURT OF OHIO




       {¶ 8} The state, through a special prosecutor, charged Sarver with several
offenses, including two counts of sexual battery in violation of R.C. 2907.03(A)(1),
which prohibits knowingly coercing another to engage in sexual conduct.
However, the sexual-battery counts were dismissed as part of an agreement under
which Sarver pleaded guilty to three misdemeanor counts of criminal trespassing
(based on Sarver’s unauthorized use of his neighbor’s hot tub) and one
misdemeanor count of obstructing official business (based on his advice to J.B. to
turn off her phone’s GPS while there was an outstanding warrant for her arrest).
Additionally, as part of the plea agreement, Sarver had to withdraw his candidacy
for county prosecuting attorney and the special prosecutor dismissed the remaining
counts of the indictment. The court sentenced Sarver to two years of community
control and fined him $1,250.
       {¶ 9} After we rejected the board’s original recommendation to accept the
parties’ consent-to-discipline agreement and remanded the cause to the board for
further proceedings, a hearing was held before a panel, the parties presented
stipulations of fact, misconduct, and aggravating and mitigating factors, and they
recommended that Sarver be suspended from the practice of law for two years, with
the entire suspension stayed on multiple conditions.
       {¶ 10} The panel adopted the parties’ stipulations and recommended
sanction. The board adopted the panel’s report in its entirety and found that
Sarver’s 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
between them existed prior to the client-lawyer relationship), 8.4(b) (prohibiting a
lawyer from committing an illegal act that adversely reflects on the lawyer’s
honesty or trustworthiness), 8.4(c) (prohibiting a lawyer from engaging in conduct
involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (prohibiting a
lawyer from engaging in conduct that is prejudicial to the administration of justice).




                                          4
                                January Term, 2018




                                      Sanction
       {¶ 11} 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.
       {¶ 12} The parties stipulated and the board found the presence of two
aggravating factors—that Sarver acted with a dishonest and selfish motive and
committed multiple offenses. See Gov.Bar R. V(13)(B)(2) and (4).
       {¶ 13} Stipulated mitigating factors found by the board include the absence
of prior discipline, Sarver’s full and free disclosure to the board and cooperative
attitude toward the disciplinary proceedings, and other penalties and sanctions
incurred for his misconduct. See Gov.Bar R. V(13)(C)(1), (4), and (6). The parties
stipulated and the board found that Sarver had submitted letters attesting to his good
character and reputation, and the judge who had presided over J.B.’s criminal case
also submitted a letter expressing his agreement with the proposed sanction. See
Gov.Bar R. V(13)(C)(5). In addition, the board noted that Sarver had successfully
completed court-ordered counseling and made a good-faith effort to address the
issues underlying his misconduct by entering into a contract with the Ohio Lawyers
Assistance Program (“OLAP”) and attending additional counseling with his spouse.
       {¶ 14} In considering the appropriate sanction for Sarver’s misconduct, the
board emphasized that “compelling” mitigating factors in this case warranted a two-
year suspension, with the entire suspension stayed on conditions:


       (1) not only was there no harm to the client but the client leveraged
       her relationship with [Sarver] to get a better plea deal by agreeing to
       testify against him; (2) he received a very public reprimand of sorts
       from the local media because his arrest and indictment, while he was
       a candidate for prosecutor, were front-page news; (3) he was over-




                                          5
                             SUPREME COURT OF OHIO




       indicted with 14 felonies and four misdemeanors including bribery
       and sexual battery charges; (4) he was arrested twice and spent two
       nights in jail; (5) and he was forced to withdraw his candidacy for
       county prosecutor.


The board explained that “[w]hat makes these factors so significant is that they all
stem from [Sarver’s] consensual sexual relationship with his client.”
       {¶ 15} We agree that Sarver’s conduct violated Prof.Cond.R. 1.8(j), 8.4(b),
8.4(c), and 8.4(d). However, we disagree that a two-year suspension, with the entire
suspension stayed on the conditions recommended by the board, is the appropriate
sanction for that misconduct.
       {¶ 16} Prof.Cond.R. 1.8(j) prohibits a lawyer from soliciting or engaging in
sexual activity with a client unless a consensual sexual relationship between them
predated the client-lawyer relationship. In the absence of a preexisting, consensual
sexual relationship, seeking or having sex with a client is a per se violation. The
fact that a client appears to have consented does not mitigate the attorney’s
misconduct or provide a defense against a violation. Indeed, Comment 17 to
Prof.Cond.R. 1.8(j) explains that “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.” (Emphasis added.) Compare
Prof.Cond.R. 1.7 (allowing client to consent to representation of another client that
will be directly adverse to the client in certain circumstances); Prof.Cond.R. 1.8(a)
(allowing client to consent to an attorney’s transacting business with the client
when certain conditions are met). And Gov.Bar R. V(13)(C) does not identify the
client’s consent as a mitigating factor that may be considered in favor of a less
severe sanction.




                                         6
                                January Term, 2018




       {¶ 17} We have admonished lawyers and sanctioned them with an actual
suspension from the practice of law for engaging in sexual conduct with clients
with whom they had no sexual relationship prior to the representation. “Most
disturbing are cases in which a lawyer has had sex with a client while defending
the client against criminal charges * * * or has accepted sex in lieu of fees.”
Disciplinary Counsel v. Krieger, 108 Ohio St.3d 319, 2006-Ohio-1062, 843 N.E.2d
765, ¶ 29.
       {¶ 18} In Disciplinary Counsel v. Booher, 75 Ohio St.3d 509, 664 N.E.2d
522 (1996), Booher had been appointed to represent a female client who was facing
felony charges. When Booher met with his client to discuss a possible prison
sentence in a jail meeting room, they engaged in sexual activity. The client reported
the incident to the judge presiding over her case, resulting in disciplinary action
against Booher. The board recommended a one-year suspension of Booher’s
license, with the entire suspension stayed on conditions. We concluded, however,
that a more severe sanction was warranted, explaining:


       The case before us involves court-appointed counsel for a criminal
       defendant.    The lawyer-client relation in a criminal matter is
       inherently unequal.    The client’s reliance on the ability of her
       counsel in a crisis situation has the effect of putting the lawyer in a
       position of dominance and the client in a position of dependence and
       vulnerability. The more vulnerable the client, the heavier is the
       obligation upon the attorney not to exploit the situation for his own
       advantage. Whether a client consents to or initiates sexual activity
       with the lawyer, the burden is on the lawyer to ensure that all
       attorney-client dealings remain on a professional level.


Id. at 510. We also noted that because the client was incarcerated, Booher had




                                         7
                             SUPREME COURT OF OHIO




abused his status as an officer of the court by meeting with the client and engaging
in sexual activity with her in the jail. We therefore imposed a one-year actual
suspension.
       {¶ 19} In Disciplinary Counsel v. Freeman, 106 Ohio St.3d 334, 2005-
Ohio-5142, 835 N.E.2d 26, Freeman paid his 18-year-old female client—who was
facing serious criminal charges—$150 to pose for nude photographs. And after the
attorney-client relationship had ended, Freeman offered his underage client alcohol
and solicited her to perform sex acts in exchange for specific monetary amounts.
Citing Booher, this court explained that “[w]e have denounced the patent
impropriety of similar misconduct before.” Freeman at ¶ 12. And given the
reprehensible nature of Freeman’s conduct and our obligation to protect the public,
we suspended his license to practice law for an actual six-month term. Id. at ¶ 16.
       {¶ 20} In Krieger, 108 Ohio St.3d 319, 2006-Ohio-1062, 843 N.E.2d 765,
at ¶ 33, we explained that an assistant public defender “took advantage of the
‘inherently unequal’ balance of power between a criminal defense lawyer and his
or her client” when Krieger had a sexual relationship with—and provided financial
assistance to—a male client whom she had previously represented as a juvenile and
continued to represent in other legal matters. The attorney had also lied about the
relationship to her employer, the public defender, and impeded the public defender
in providing competent and objective representation to this indigent defendant,
eventually causing the public defender to refuse to provide him with future legal
representation. Id. at ¶ 28, 34. We suspended Krieger from the practice of law for
two years, with one year of the suspension stayed on conditions. Id. at ¶ 36.
       {¶ 21} In Akron Bar Assn. v. Williams, 104 Ohio St.3d 317, 2004-Ohio-
6588, 819 N.E.2d 677, the attorney represented a female client in a domestic-
relations proceeding and defended her against charges for driving under the
influence and driving with a suspended license. During this time, the client “was
in danger of losing custody of her children, had little, if any, money to pay for legal




                                          8
                                 January Term, 2018




assistance, was struggling with drug use, and was in counseling for having
attempted suicide.” Id. at ¶ 3. Nonetheless, Williams began a sexual relationship
with the client with an understanding that she would not be charged for his legal
services. After the client filed a grievance, Williams lied in a deposition under oath
when he denied that he was having a sexual relationship with her. Id. at ¶ 6. Noting
the “egregious” misconduct in which the attorney “[took] advantage of a vulnerable
client [and] lied under oath to hide his misdeeds,” we suspended Williams’s law
license for two years, with the last 18 months of the suspension stayed on
conditions. Id. at ¶ 15-16.
       {¶ 22} These cases all involved attorneys who took advantage of the
attorney-client relationship and their clients’ vulnerable circumstances for the
attorneys’ own sexual gratification. And in each case, we determined that an actual
suspension was the appropriate sanction for their misconduct.
       {¶ 23} In this case, however, the board concluded that “compelling
mitigating factors” supported adopting the parties’ recommendation of a two-year
suspension, with the entire suspension stayed on conditions. It noted that “not only
was there no harm to the client but the client leveraged her relationship with
[Sarver] to get a better plea deal by agreeing to testify against him.” The board also
explained that other negative consequences that Sarver experienced—a public
shaming “of sorts” from the local media, his being “over-indicted with 14 felonies
and four misdemeanors,” his two arrests and the two nights that he spent in jail, and
his being forced to withdraw his candidacy for county prosecutor—were
“significant” because “they all stem[med] from [Sarver’s] consensual sexual
relationship with his client.”
       {¶ 24} However, the board’s finding that there was a consensual
relationship seems oblivious to the facts that (1) J.B. was an indigent criminal
defendant, (2) Sarver was her court-appointed, criminal-defense attorney, (3) “[t]he
lawyer-client relation in a criminal matter is inherently unequal,” Booher, 75 Ohio




                                          9
                             SUPREME COURT OF OHIO




St.3d at 510, 664 N.E.2d 522, and (4) “[t]he client’s reliance on the ability of her
counsel in a crisis situation has the effect of putting the lawyer in a position of
dominance and the client in a position of dependence and vulnerability,” id. This
power imbalance “ ‘enable[s] the lawyer to dominate and take unfair advantage’ ”
of the client. Iowa Supreme Court Bd. of Professional Ethics & Conduct v. Hill,
540 N.W.2d 43, 44 (Iowa 1995), quoting former Iowa Code of Professional
Responsibility EC 5-25.
       {¶ 25} Reported cases are filled with clients who have said that they
submitted to their attorney’s sexual advances out of fear that refusing to submit
would affect the quality of their representation at a time of vulnerability and
dependence on the attorney. E.g., Disciplinary Counsel v. Detweiler, 135 Ohio
St.3d 447, 2013-Ohio-1747, 989 N.E.2d 41, ¶ 20; Disciplinary Counsel v. Moore,
101 Ohio St.3d 261, 2004-Ohio-734, 804 N.E.2d 423, ¶ 12; Williams, 104 Ohio
St.3d 317, 2004-Ohio-6588, 819 N.E.2d 677, at ¶ 4; In re Vogel, 482 S.W.3d 520,
525, 544 (Tenn.2016); Iowa Supreme Court Atty. Disciplinary Bd. v. Moothart, 860
N.W.2d 598, 617 (Iowa 2015); Matter of Berg, 264 Kan. 254, 281, 955 P.2d 1240
(1998); In re Rinella, 175 Ill.2d 504, 516, 677 N.E.2d 909 (1997).
       {¶ 26} Here, Sarver met an indigent client “for drinks” and to discuss a
serious criminal matter. At the end of the meeting, Sarver proceeded to have sex
with her in his parked car, which the client described as a “favor” for his legal
services. Then, after the client had been found indigent and Sarver had been
appointed by the court to represent her, Sarver continued to engage in sexual
activity with J.B. while she remained vulnerable and dependent on him as he
defended her against serious criminal charges.
       {¶ 27} Yet, although J.B. told detectives that she believed Sarver was
helping her in exchange for sexual favors and that she had submitted to his sexual
advances because of her legal jeopardy—and notwithstanding relator’s statement
at the hearing that J.B. still contended that the sexual activity with Sarver was not




                                         10
                                January Term, 2018




consensual—the board never heard directly from her before making conclusions
about the nature of her relationship with Sarver. Instead, the board essentially
blamed the victim, J.B., for the negative consequences that Sarver experienced
resulting from his own decision to engage in sexual relations with a vulnerable
client whom he had been appointed to represent in a criminal case.
       {¶ 28} And then, ignoring all the indications that Sarver exploited the
attorney-client relationship to obtain “sexual favors,” the board concluded that the
client was all the better for it, because she “leveraged her relationship with [Sarver]
to get a better plea deal.” The mere fact that the client’s criminal case was not
prejudiced does not mean that she suffered no harm from Sarver’s misconduct. See
Vogel, 482 S.W.3d at 537 (“the use of [the client’s] trust to her disadvantage
constitutes injury”). As the Supreme Court of Colorado has explained, “a sexual
relationship between lawyer and client during the course of the professional
relationship is inherently and insidiously harmful.” People v. Boyer, 934 P.2d
1361, 1363 (Colo.1997). The client may be psychologically and emotionally
harmed by an exploitative sexual relationship regardless of the outcome of the legal
case. See Cleveland Metro. Bar Assn. v. Sleibi, 144 Ohio St.3d 257, 2015-Ohio-
2724, 42 N.E.3d 699, ¶ 15 (noting that the attorney’s sexual relationships with
clients caused those clients emotional harm); State ex rel. Nebraska State Bar Assn.
v. Denton, 258 Neb. 600, 609, 604 N.W.2d 832 (2000) (noting that the attorney’s
sexual relationship with his client “caused further psychological harm to a
vulnerable client”).
       {¶ 29} The abuse of the attorney-client relationship not only harms the
dignity of the client, whose body and trust in her lawyer have been violated, but it
also impugns the legal system as a whole. J.B., an indigent criminal defendant,
turned to the court and the legal profession to protect her freedom and right to due
process, only to be exploited for Sarver’s sexual gratification.




                                          11
                               SUPREME COURT OF OHIO




          {¶ 30} It is for all these reasons that Ohio has adopted a per se prohibition
against an attorney’s having a sexual relationship with a client when such a
relationship did not exist before the attorney-client relationship was formed, and
the professional-conduct rules do not indicate that a lesser sanction should be
imposed on the attorney when the relationship “appears” to be consensual or when
the client’s case does not seem to have been prejudiced. And in keeping with the
aspiration expressed in A Lawyer’s Creed “to make the law and our legal system
available to all,” courts have the obligation to ensure that the lawyers appointed to
represent indigent criminal defendants “offer loyalty, confidentiality, competence,
diligence and [their] best judgment” and abide by their professional duty not to
initiate a sexual relationship with a vulnerable client whose liberty and right to due
process is at stake. A Lawyer’s Creed, Appendix V to the Supreme Court Rules
for the Government of the Bar. Failing to impose an actual suspension on a court-
appointed, criminal-defense attorney who has violated Prof.Cond.R. 1.8(j) by
having sex with his indigent client would contravene our obligation to protect the
public.
          {¶ 31} The board’s finding that J.B. freely engaged in a relationship with
Sarver ignores the power imbalance between an indigent client and court-appointed
defense counsel, and its finding that J.B. had not been prejudiced discounts the
inherent harm that results when an attorney abuses the attorney-client relationship
in pursuit of the attorney’s own sexual gratification. For all of these reasons,
Sarver’s misconduct of engaging in a sexual relationship with a client in a criminal
case—during which he also obstructed official business, committed trespass, and
lied about the relationship to a judge—warrants an actual suspension of his law
license.
          {¶ 32} Accordingly, Jason Allan Sarver is suspended from the practice of
law in Ohio for two years, with 18 months of the suspension stayed on the
conditions that he (1) comply with his December 12, 2017 OLAP contract, (2) take




                                           12
                                January Term, 2018




the Multistate Professional Responsibility Exam and receive a passing score, (3) in
addition to the requirements of Gov.Bar R. X, complete 12 hours of continuing
legal education focused on professional ethics or attorney-client relationships,
(4) serve a two-year period of monitored probation in accordance with Gov.Bar R.
V(21), and (5) engage in no further misconduct. If Sarver fails to comply with any
condition of the stay, the stay will be lifted and he will serve the full two-year
suspension. Costs are taxed to Sarver.
                                                              Judgment accordingly.
       O’DONNELL, FRENCH, and DEWINE, JJ., concur.
       FISCHER, J., concurs in part and dissents in part, with an opinion joined by
O’CONNOR, C.J., and DEGENARO, J.
                                _________________
       FISCHER, J., concurring in part and dissenting in part.
       {¶ 33} The sanction recommended by the Board of Professional Conduct,
with the inclusion of conditions such as probation, is much improved from the
previous discipline-by-consent agreement submitted to this court. I agree with the
majority’s position, however, that a two-year suspension, with the entire suspension
stayed on the conditions recommended by the board, is an unsuitable sanction in
this case. Although I agree with much of the majority’s analysis, I believe that
given the circumstances of this case, a longer actual suspension of respondent’s,
Jason Allan Sarver’s, Ohio law license is warranted and is necessary to protect the
public. Specifically, I find that a two-year suspension, with one year stayed on the
conditions recommended by the board, would be a more appropriate sanction in
this case. Therefore, I respectfully concur in part and dissent in part.
               A. An Actual Suspension of One Year is Warranted
       {¶ 34} I wholeheartedly agree with the majority that the board was incorrect
to conclude that because Sarver’s client, J.B., was not prejudiced in her criminal
case, she was not harmed by Sarver’s misconduct. Majority opinion at ¶ 28. And




                                          13
                             SUPREME COURT OF OHIO




I further agree with the board and the majority that Sarver acted selfishly and with
a dishonest motive.
       {¶ 35} But I believe that Sarver’s actions necessitate a longer actual
suspension of his law license. Here, Sarver violated four professional-conduct rules
stemming from his sexual relationship with his indigent female client, J.B:
Prof.Cond.R. 1.8(j), by engaging in sexual activity with a client; Prof.Cond.R.
8.4(b), by committing an illegal act that reflects adversely on the lawyer’s honesty
or trustworthiness; Prof.Cond.R. 8.4(c), by engaging in conduct involving
dishonesty, fraud, deceit, or misrepresentation; and Prof.Cond.R. 8.4(d), by
engaging in conduct that is prejudicial to the administration of justice.
       {¶ 36} Generally, for many of these rule violations, including Prof.Cond.R.
1.8(j), whether an actual suspension is imposed depends on the facts of each case.
See Disciplinary Counsel v. Detweiler, 135 Ohio St.3d 447, 989 N.E.2d 41, 2013-
Ohio-1747, ¶ 17-20. However, when the violation of Prof.Cond.R. 1.8(j) involves
an attorney and an indigent client, an actual suspension of an attorney’s law license
is warranted. See Disciplinary Counsel v. Krieger, 108 Ohio St.3d 319, 2006-Ohio-
1062, 843 N.E.2d 765 (court-appointed attorney who engaged in a sexual
relationship with her indigent juvenile client received a two-year suspension from
the practice of law, with one year stayed on conditions); Disciplinary Counsel v.
Booher, 75 Ohio St.3d 509, 664 N.E.2d 522 (1996) (court-appointed attorney who
engaged in sexual activity with his indigent client in the county jail received an
actual one-year suspension from the practice of law).
       {¶ 37} We have also held that when an attorney engages in a course of
conduct involving dishonesty, fraud, deceit, or misrepresentation, the attorney will
serve an actual suspension from the practice of law. Disciplinary Counsel v.
Fowerbaugh, 74 Ohio St.3d 187, 658 N.E.2d 237 (1995), syllabus. While we have
tempered that sanction in cases presenting an isolated incident in an otherwise
unblemished career, see, e.g., Disciplinary Counsel v. Fumich, 116 Ohio St.3d 257,




                                         14
                                January Term, 2018




2007-Ohio-6040, 878 N.E.2d 6, this is not such a case. Sarver made a series of
poor decisions over the course of at least six months stemming from his selfish
motives to engage in a sexual relationship with his indigent client.
       {¶ 38} The majority correctly emphasizes that the consensual nature of the
sexual relationship between Sarver and J.B. does not excuse or provide a defense
for Sarver’s misconduct. But even if consent were a mitigating factor, given the
imbalance of power inherent in an attorney-client relationship, I question whether
J.B.—who was heavily dependent on Sarver for help with navigating the criminal-
justice system and maintaining her liberty—could have given adequate informed
consent. See Prof.Cond.R. 1.8(j), Comment 17.
       {¶ 39} Furthermore, “[w]hether a client consents to or initiates sexual
activity with the lawyer, the burden is on the lawyer to ensure that all attorney-
client dealings remain on a professional level.” Booher, 75 Ohio St.3d at 510, 664
N.E.2d 522. Here, it is apparent that Sarver did not meet his burden to maintain a
professional relationship with J.B. Sarver immediately acted on J.B.’s request for
help with her criminal case by contacting an assistant prosecuting attorney. The
following day, Sarver met J.B. for drinks where they discussed her case and then
proceeded to have sex in Sarver’s vehicle. Sarver continued his sexual relationship
with J.B., which included trespassing on the property of Sarver’s neighbor to use
the neighbor’s hot tub. Sarver acted dishonestly and selfishly, and he continuously
and repeatedly failed to maintain professionalism in his interactions with J.B.
       {¶ 40} Perhaps the most disturbing behavior demonstrated by Sarver during
this six-month period occurred when Sarver deceived the court at least three times.
After establishing the attorney-client relationship with J.B., Sarver began a sexual
relationship with her and then sought appointment by the court to serve as J.B.’s
court-appointed, criminal-defense attorney. A court, in making appointments, must
take into account “[t]he avoidance of conflicts of interest or other situations that
may potentially delay timely completion of the case,” Sup.R. 8(D)(4), and




                                         15
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“[i]ntangible factors, including the court[’s] * * * view of a potential appointee’s
commitment to providing timely, cost-effective, quality representation to each
prospective client,” Sup.R. 8(D)(5). By seeking to be appointed to J.B.’s case and
failing to disclose his relationship, Sarver misled the court as to his ability to
adequately represent J.B. as her court-appointed, criminal-defense attorney.
Making matters worse, Sarver continued his sexual relationship with J.B. after
being appointed by the court and twice lied about the relationship to a caring judge
when the judge expressed concern about the situation.
       {¶ 41} While there are some mitigating factors in Sarver’s favor, such as
his lack of a disciplinary record, his cooperation with the board, and his character
references, the mitigating factors do not outweigh Sarver’s abhorrent behavior,
boorish selfishness, and complete disregard for the legal profession.          Sarver
engaged in a sexual relationship with his indigent client who was facing serious
felony charges, advised his client on how to evade authorities, and then misled and
explicitly lied to the court about that relationship. As the majority correctly
emphasizes, the most disturbing attorney-disciplinary cases are those in which a
lawyer engages in sexual activity with a client while defending the client against
criminal charges. Krieger, 108 Ohio St.3d 319, 2006-Ohio-1062, 843 N.E.2d 765,
at ¶ 29. Given the facts of this case, I believe that this court should suspend Sarver
from the practice of law in Ohio for two years, with one year of the suspension
stayed on the conditions recommended by the board.
    B. The Additional Conditions Will Help Ensure Protection of the Public
       {¶ 42} While I believe that an actual one-year suspension of Sarver’s law
license is necessary to protect the public, I also believe that the board’s newly
recommended conditions will help to further protect the public.
       {¶ 43} Originally, the board had accepted a discipline-by-consent
agreement whereby disciplinary counsel and Sarver stipulated to a two-year
suspension, fully stayed on just one condition—that Sarver not engage in further




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misconduct during those two years.            This court specifically rejected that
recommended sanction and remanded the cause to the hardworking members of the
board for further proceedings. I voted to reject the board’s originally recommended
sanction because that sanction did not adequately protect the public. 150 Ohio St.3d
1439, 2017-Ohio-7742, 82 N.E.3d 1173.
       {¶ 44} Subsequently, the board again recommended that Sarver be
suspended from the practice of law for two years, with the entire suspension
conditionally stayed. The board included additional conditions that require Sarver
to comply with his Ohio Lawyers Assistance Program (“OLAP”) contract, take and
pass the Multistate Professional Responsibility Exam, and, in addition to his normal
continuing-legal-education (“CLE”) requirements, complete 12 hours of CLE
focused on professional ethics or relationships with clients. And most importantly,
the conditions include a period of monitored probation under Gov.Bar R. V(21).
       {¶ 45} Under Gov.Bar R. V(21)(A), disciplinary counsel must appoint an
attorney or attorneys to monitor Sarver’s compliance with all of the conditions
listed above. The monitoring attorney or attorneys must then file written, certified
reports with disciplinary counsel regarding the status of Sarver’s compliance with
the conditions of his probation, see Gov.Bar R. V(21)(B)(2), and shall
“[i]mmediately report” to disciplinary counsel any violation by Sarver of any
condition of probation (emphasis added), Gov.Bar R. V(21)(B)(3). The written
reports must be filed “at least quarterly or as otherwise determined” by disciplinary
counsel. Gov.Bar R. V(21)(B)(2).
       {¶ 46} Further, while on probation, Sarver must (1) have a personal meeting
with the monitoring attorney or attorneys at least once a month during the first year
and at least quarterly thereafter, unless required by the monitoring attorney or
attorneys to have more frequent meetings; (2) provide the monitoring attorney or
attorneys with a written release or waiver so that Sarver’s compliance with the
conditions concerning medical, psychological, or other treatment and his




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attendance at self-help programs may be verified; and (3) cooperate fully with the
efforts of the    monitoring attorney or attorneys.        Gov.Bar R. V(21)(C).
Significantly, Sarver’s probation may be terminated only with this court’s approval,
see Gov.Bar R. V(21)(D), and disciplinary counsel must immediately investigate
“any report of a violation of the conditions of probation” by Sarver and must move
to revoke his probation if warranted (emphasis added), Gov.Bar R. V(21)(E).
        {¶ 47} These additional requirements will protect the public far more
effectively than the sanction originally recommended by the board, as Sarver will
be forced to be in regular and repeated contact with both the monitoring attorney or
attorneys and OLAP. The written release or waiver that Sarver signs will provide
the monitoring attorney or attorneys access to Sarver’s medical and mental-health
information—a significant intrusion into Sarver’s private life—to ensure that he is
in compliance with the conditions of his probation. Sarver must also abide by the
significant obligations placed on him by his contract with OLAP. Moreover, Sarver
has the proverbial “sword of Damocles” of more time without his license “hanging
over his head” if he violates any ethical duty or any of the conditions during the
suspension period. In other words, this sanction will keep Sarver, in colloquial
terms, “on a short leash” once he is able to return to practice. Indeed, these
additional conditions on the stay of Sarver’s suspension will better help to protect
the public.
                                  C. Conclusion
        {¶ 48} While I agree with much of the majority opinion and agree that the
significant conditions attached to Sarver’s suspension, specifically probation, will
help protect the public more effectively than the board’s previously recommended
discipline-by-consent agreement, I believe that a longer actual suspension of
Sarver’s Ohio law license is warranted. Therefore, I concur in part and dissent in
part.




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       {¶ 49} I hope that in the future, this court will more often utilize probation,
as was done in this case, as a means of protecting the citizens of Ohio from attorney
misconduct.
       O’CONNOR, C.J., and DEGENARO, J., concur in the foregoing opinion.
                               _________________
       Scott J. Drexel, Disciplinary Counsel, and Karen H. Osmond, Assistant
Disciplinary Counsel, for relator.
       Jason Allan Sarver, pro se.
                               _________________




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