[Cite as Cincinnati Bar Assn. v. Schmalz, 123 Ohio St.3d 130, 2009-Ohio-4159.]




                    CINCINNATI BAR ASSOCIATION v. SCHMALZ.
                      [Cite as Cincinnati Bar Assn. v. Schmalz,
                       123 Ohio St.3d 130, 2009-Ohio-4159.]
Attorneys at law — Misconduct — Public reprimand.
    (No. 2009-0661 — Submitted May 19, 2009 — Decided August 25, 2009.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                    Discipline of the Supreme Court, No. 08-082.
                                 __________________
        Per Curiam.
        {¶ 1} Relator, Cincinnati Bar Association, filed a complaint against
Cincinnati lawyer Anna Schmalz, Attorney Registration No. 0078103, for
violating the Rules of Professional Conduct. The Board of Commissioners on
Grievances and Discipline recommends that we adopt the stipulated facts and
accede to the respondent’s consent-to-discipline agreement in the form of a public
reprimand. In the consent-to-discipline agreement, respondent admits that she
violated her oath of office and also violated Prof.Cond.R. 1.7(a)(2) (a lawyer’s
representation of a client creates a conflict of interest if there is a substantial risk
that the lawyer’s representation will be compromised by the lawyer’s personal
interests) and 1.8(j) (a lawyer shall not solicit or engage in sexual activity with a
client unless the relationship existed before the representation commenced). The
board’s recommendation states that dropping the charges involving lying to the
investigator is justified by mitigating circumstances.
        {¶ 2} We agree with the recommendation, and we order that respondent
be publicly reprimanded for her misconduct.
                                      Background
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       {¶ 3} The facts in this case have been stipulated to by the parties. On
December 7, 2006, respondent was appointed to represent a criminal defendant
with respect to two separate indictments. Both cases were tried before a jury in
March 2007, and the jury acquitted the defendant with respect to all charges in the
first indictment and all but two charges in the second indictment. As to those
charges, the jury could not reach a verdict.
       {¶ 4} Prosecutors offered the defendant a plea bargain with respect to the
remaining charges that would have required him to serve two years, and
respondent consistently advised her client to accept the offer. But the defendant
declined, and at a second trial in November 2007, the defendant was convicted
and sentenced to five years and five months in prison. Later in November 2007,
the defendant filed a grievance against respondent and informed the court of the
allegations pertinent to this matter: that respondent had engaged in a romantic
relationship with him, that that relationship had left the defendant vulnerable and
had created a conflict of interest, and that the relationship had motivated the
respondent to seek acquittal rather than a plea bargain so the two could be
together.
       {¶ 5} The relator investigated the grievance by interviewing the
respondent twice and serving interrogatories on her. During the initial interview,
respondent was unrepresented and stated that she had developed a “friendship”
with the client but did not admit the sexual nature of the relationship.
Subsequently, an attorney investigating the defendant’s allegations for the trial
judge supplied a CD that contained recordings of over 50 hours of telephone calls
between the defendant and respondent. The calls had been monitored by the
Hamilton County Sheriff’s Department with the knowledge of the participants.
Among the approximately 110 half-hour recorded conversations between
respondent and her client were explicit descriptions of sexual acts and professions




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of love between the two. In at least three calls, respondent requested and/or
engaged in telephonic sexual activity with her client.
       {¶ 6} In her response to relator’s interrogatories, respondent admitted
that she had engaged in “personal conversations” that were “inappropriate.” After
the CD was supplied to respondent’s counsel, relator’s investigator conducted a
second interview with respondent in which she acknowledged the sexual
component of the relationship and admitted that she had discussed with the client
the possibility of pursuing the relationship following his release from custody. In
that context, respondent stated, “I screwed up. I got too close.”
       {¶ 7} The parties have entered into a consent-to-discipline agreement
filed pursuant to Section 11 of the Rules and Regulations Governing Procedure on
Complaints and Hearings Before the Board of Commissioners on Grievances and
Discipline (“BCGD Proc.Reg.”) and also a stipulation of facts in support of that
agreement. The stipulation identifies respondent’s initial minimization of her
relationship with the client as an aggravating factor pursuant to BCGD Proc.Reg.
10(B)(1)(f), but states in mitigation that respondent has made full disclosure to the
board and has no prior disciplinary history, see BCGD Proc.Reg. 10(B)(2)(a) and
(d). The parties have agreed to a public reprimand as an appropriate sanction.
The board reviewed the stipulation and consent-to-discipline agreement and
recommended that the court adopt the agreement.
                                    Disposition
       {¶ 8} The consent agreement seeks a public reprimand for the
respondent for violations of Prof.Cond.R. 1.7(a)(2) and 1.8(j). Our cases have
dealt with sexual activity between lawyers and clients in a number of contexts,
often under circumstances in which the sexual relationship formed part of a larger
pattern of misconduct. At the one end of the spectrum, we disbarred a male
lawyer who preyed upon the vulnerabilities of his clients in an egregious manner,
engaged in sex with them, lied during the investigation, and showed little



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acceptance of responsibility for the wrongfulness of his acts.         Disciplinary
Counsel v. Sturgeon, 111 Ohio St.3d 285, 2006-Ohio-5708, 855 N.E.2d 1221, ¶
18, 29-30.   In other cases, a sexual relationship has been linked with other
disciplinary violations or an actual adverse impact on the quality of the legal
representation; in such cases, we have ordered a suspension from the practice of
law. See Disciplinary Counsel v. Krieger, 108 Ohio St.3d 319, 2006-Ohio-1062,
843 N.E.2d 765, ¶ 29, 30, and cases cited therein.
       {¶ 9} The present case dwells at the end of the spectrum representing the
least egregious cases of sexual misconduct. The parties stipulated that in spite of
the improprieties, respondent effectively performed her function as attorney in the
criminal representation and that a public reprimand for the stated violations will
adequately deter her from further violations. In such cases, we have imposed a
public reprimand. See Disciplinary Counsel v. Engler, 110 Ohio St.3d 138, 2006-
Ohio-3824, 851 N.E.2d 502 ¶ 12-13; Disciplinary Counsel v. DePietro (1994), 71
Ohio St.3d 391, 392-393, 643 N.E.2d 1145. Consistent with this case law, we
adopt the recommendation of the board and order that respondent be 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.
                                __________________
       Peter Rosenwald and Jean M. Geoppinger, for relator.
       John H. Burlew, for respondent.
                           ______________________




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