[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Lake Cty. Bar Assn. v. Mismas, Slip Opinion No. 2014-Ohio-2483.]




                                        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. 2014-OHIO-2483
                  LAKE COUNTY BAR ASSOCIATION v. MISMAS.
   [Until this opinion appears in the Ohio Official Reports advance sheets,
                 it may be cited as Lake Cty. Bar Assn. v. Mismas,
                         Slip Opinion No. 2014-Ohio-2483.]
Attorney discipline—Conduct adversely reflecting on fitness to practice law—
        One-year suspension, partially stayed.
     (No. 2013-1248—Submitted October 9, 2013—Decided June 12, 2014.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                    Discipline of the Supreme Court, No. 12-049.
                               ____________________
        Per Curiam.
        {¶ 1} Respondent, John Daniel Mismas of Willoughby, Ohio, Attorney
Registration No. 77434, was admitted to the practice of law in Ohio in 2004.
        {¶ 2} On June 11, 2012, a probable-cause panel of the Board of
Commissioners on Grievances and Discipline certified a complaint filed by
relator, Lake County Bar Association, to the board.             Having considered the
parties’ stipulated facts and the hearing testimony of Mismas and five other
                            SUPREME COURT OF OHIO




witnesses, a panel of the board found that Mismas had engaged in conduct that
adversely reflected on his fitness to practice law by sending inappropriate,
sexually explicit text messages to a third-year law student who had interviewed
for, and later accepted, a position as a law clerk at his law firm. The panel
recommended that Mismas be publicly reprimanded for this conduct.
       {¶ 3} The board adopted the panel’s findings of fact and misconduct and,
despite a modification to the aggravating and mitigating factors found by the
panel, adopted its recommendation that Mismas be publicly reprimanded for his
misconduct. Having independently reviewed the record, however, we find that
Mismas did not just send sexually explicit text messages to a law student he
sought to employ—he abused the power and prestige of our profession to demand
sexual favors from her as a condition of her employment. Therefore, we conclude
that a harsher sanction is warranted and suspend Mismas from the practice of law
for one year, with the final six months stayed on conditions.
                                   Misconduct
       {¶ 4} In November 2011, Mismas contacted Professor J. Dean Carro at
the University of Akron School of Law, seeking to hire a student law clerk. Three
students responded to his posting. He contacted Ms. C, a female student at the
school and scheduled a face-to-face interview for December 9, 2011. From the
evening of the interview through December 28, 2011, Mismas and Ms. C
exchanged numerous text messages.
       {¶ 5} The board found that some of the text messages that Mismas sent
to Ms. C on December 9 and 10 were sexually explicit and inappropriate.
Notwithstanding the inappropriate content of those messages, Ms. C accepted
employment with Mismas’s firm on December 11, 2011. On December 22, 2011,
Mismas sent Ms. C a text inviting her to travel with him to Washington, D.C. on
business. After she informed him that she had a prior commitment and would not




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travel with him, Mismas sent her a text stating, “That’s strike 1 for you. 3 strikes
and you are out.” Ms. C resigned her employment the next day.
        {¶ 6} In January 2012, Professor Carro asked Ms. C about her
employment with Mismas and learned of her resignation. When the professor
asked for additional information, Ms. C stated that Mismas had acted
inappropriately toward her and that she felt uncomfortable continuing in his
employ. Shortly thereafter, Professor Carro filed a grievance with relator.
        {¶ 7} The parties stipulated, and the panel and board found, that
Mismas’s conduct toward Ms. C violated Prof.Cond.R. 8.4(h) (prohibiting a
lawyer from engaging in conduct that adversely reflects on the lawyer’s fitness to
practice law).
        {¶ 8} In order to fully recognize the gravity of the misconduct in this
case, however, it is necessary to consider the content of the text messages that
Mismas sent to this third-year law student who sought employment as a law clerk
in his firm—facts that the parties do not set forth in their stipulations and neither
the panel nor the board set forth in its report. Although the conversation began
with a general discussion of Ms. C’s commitment to Mismas’s primary area of
practice—asbestos litigation—and the psychological toll that the clients’
circumstances can have on those who assist them, it soon took an inappropriate
turn.
        {¶ 9} Mismas advised Ms. C that she would “need to take a few
beatings” before she could learn to give one. He rephrased this statement in
sexual terms and then asked Ms. C if she had ever engaged in the type of sex act
he had referred to. Ms. C told him to stop, stating that they were only speaking
metaphorically, but Mismas insisted that he was serious. Ms. C advised him that
his question was inappropriate and that she would not answer it. Mismas then
told her that there needed to be some level of trust between them saying, “[I]f you
can’t trust me with personal issues then that’s a problem.” When she continued to



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refuse to answer, he texted, “Just was checking how offended you would get.
This job is not for the weak.”      He indicated that honesty and loyalty were
important qualities to him.
       {¶ 10} A little before midnight, Mismas began to quiz Ms. C about an
arbitration agreement that he had given her to review. The conversation then
turned to how Mismas could ensure that Ms. C would be loyal to him. He told
her, “I have an idea but your [sic] not going to like it,” and stated that she would
“bolt” if he said it.     After she responded that he had already taken the
conversation pretty far and that she had not bolted, he suggested that she perform
a sex act for him. Ms. C flatly rejected Mismas’s suggestion, but he continued to
press the issue. When she told him to stop and urged him to admit that he was
joking, he repeatedly refused and insisted that her employment depended on her
compliance, telling her, “If you show up at 11 you know what’s expected.” He
further stated, “So its your choice. Ok. I’ll be there at 11. If you show up great.
You know what you gptt. GoTta do [sic]. If not Good luck to you.” At
approximately 1:30 a.m., Ms. C gave Mismas one last chance to say that he had
just been messing around, but he replied, “Nope. Not kidding.”
       {¶ 11} At 9:56 that morning, Mismas sent Ms. C another text, suddenly
proclaiming that their prior exchange had been a joke after all. When Ms. C
expressed her doubts, he apologized and told her that it would not happen again.
But at the panel hearing, Ms. C testified that she had believed, and continued to
believe, that he was serious about his proposition.
       {¶ 12} The following week, Mismas suggested that Ms. C join him at his
next out-of-town deposition. And just one week after making that suggestion, he
invited her to join him on an overnight trip to Washington, D.C. When Ms. C
demurred, stating that she had already accepted an invitation to a judicial
function, Mismas belittled her for her rejection and pressured her to go by
suggesting that her refusal would have adverse consequences on her employment,




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texting her, “That’s strike 1 for you. 3 strikes and you are out”. The following
day, Ms. C resigned her employment.
          {¶ 13} On these facts, we agree that Mismas engaged in conduct that
adversely reflects on his fitness to practice law in violation of Prof.Cond.R.
8.4(h).
                                       Sanction
          {¶ 14} When imposing sanctions for attorney misconduct, we consider
relevant factors, including the ethical duties that the lawyer violated and the
sanctions imposed in similar cases. Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio
St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶ 16.                 In making a final
determination, we also weigh evidence of the aggravating and mitigating factors
listed in BCGD Proc.Reg. 10(B).
          {¶ 15} The parties stipulated and the panel found that six of the mitigating
factors set forth in BCGD Proc.Reg. 10(B)(2) were present, including (a) the
absence of a prior disciplinary record, (b) the absence of a selfish or dishonest
motive, (c) Mismas’s timely good-faith effort to rectify the consequences of his
misconduct, (d) his full and free disclosure to the board and cooperative attitude
toward the proceedings, (e) his good character and reputation apart from the
conduct at issue in this case, as demonstrated by the testimony of three character
witnesses and 19 character letters from attorneys, paralegals, court reporters,
clients, a judge, and others who know him, and (g) his alcohol dependency.
          {¶ 16} Mismas testified that in February 2012, he realized he was an
alcoholic. He argued that the inappropriate text messages he sent to Ms. C were
meant in jest. He claimed that he had been drinking heavily at the time he sent
the sexually explicit texts and that he had no memory of actually sending them.
Viewing the texts in retrospect, he said that he was embarrassed by his conduct
and referred to it as “disgusting and grotesque.” The panel and board found that




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he had shown genuine remorse for his actions and appeared to be taking all
necessary steps to avoid engaging in similar misconduct in the future.
         {¶ 17} Marilyn Wise, a licensed independent chemical-dependency
counselor, testified that Mismas began treatment with her in March 2012. She
stated that he had successfully completed an approved treatment program, that he
continued to attend Alcoholics Anonymous meetings regularly, and that he
remained in counseling with her. Although his chemical dependency contributed
to his misconduct, she believes that he has “an excellent prognosis of continued
sobriety and healthy mental status and should continue unimpeded, the work of
the exceptional attorney that he is.” Therefore, the panel and board found that
Mismas’s alcohol dependency qualified as a mitigating factor pursuant to BCGD
Proc.Reg. 10(B)(2)(g).1
         {¶ 18} The only aggravating factor found by the panel was the
vulnerability of and resulting harm to the victim of the misconduct. BCGD
Proc.Reg. 10(B)(1)(h). The board, however, rejected the panel’s finding that the
absence of a dishonest or selfish motive was a mitigating factor and instead found
that Mismas had acted with a dishonest or selfish motive that qualified as an
additional aggravating factor. BCGD Proc.Reg. 10(B)(1)(b).
         {¶ 19} In considering the sanctions imposed for comparable misconduct,
the panel and board considered Disciplinary Counsel v. Detweiler, 135 Ohio St.3d
447, 2013-Ohio-1747, 989 N.E.2d 41.                    Detweiler had sent a number of
inappropriate texts of a sexual nature to a divorce client over a period of several
months. On at least two occasions, he indicated that he wanted to engage in
1
  For a chemical dependency or mental disability to qualify as a mitigating factor pursuant to
BCGD Proc.Reg. 10(B)(2)(g)(i) through (iv), it must be supported by all of the following: (1) the
diagnosis of a qualified healthcare professional, (2) a determination that the chemical dependency
or mental disability contributed to cause the misconduct, (3) certification of successful completion
of an approved chemical-dependency treatment program or a sustained period of successful
treatment of the mental disability, and (4) a prognosis from a qualified healthcare professional that
the attorney will be able to return, under specified conditions if necessary, to the competent,
ethical, and professional practice of law.




                                                 6
                                  January Term, 2014




sexual relations with his client, and when she ignored his advances, he sent her a
nude picture of himself in a state of sexual arousal. Id. at ¶ 7. We found that
Detweiler’s conduct violated Prof.Cond.R. 1.7(a)(2) (prohibiting representation if
a lawyer’s personal interests will materially limit his ability to carry out
appropriate action for the client), 1.8(j) (prohibiting a lawyer from soliciting or
engaging in sexual activity with a client unless a consensual sexual relationship
existed prior to the client-lawyer relationship), and 8.4(h). Id. at ¶ 9-10. In
imposing a one-year actual suspension from the practice of law, we found that
Detweiler harmed a vulnerable client, acted with a selfish motive, and engaged in
a pattern of misconduct that involved a previous sexual relationship with another
client. Id. at ¶ 2, 12, and 20.
        {¶ 20} Contrasting the facts of this case to those of Detweiler, the board
noted that Ms. C was not a client of Mismas and that he had not been previously
sanctioned for similar misconduct as Detweiler had.       Citing the presence of
multiple mitigating factors, and only one or two aggravating factors, the panel and
board recommended that we adopt the parties’ stipulated sanction of a public
reprimand. We reject this recommendation.
        {¶ 21} It is true that Mismas did not direct his inappropriate sexual
overtures toward a vulnerable client as Detweiler did or engage in inherently
dangerous conduct that could place the public at risk of immediate physical harm
(like driving under the influence of alcohol). But he did engage in undignified
and unprofessional conduct by targeting an aspirant to the profession for sexual
harassment.
        {¶ 22} 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.



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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.
       {¶ 23} 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. Here,
Mismas not only suggested that Ms. C perform sexual favors for him, but he also
indicated that her continued employment depended on her compliance with his
demands and repeatedly insisted that he was not joking. And even after being
rebuffed, he continued to exert his leverage over Ms. C. by pressuring her to
travel out of state—and away from her support system—with him. When an
attorney engages in sexually inappropriate conduct of this nature, it causes harm
not only to the individual to whom the conduct is directed but also to the dignity
and reputation of the profession as a whole. Thus, we conclude that Mismas’s
conduct is more serious than “simply operating a cellphone when under the
influence,” as his counsel suggests, or sending sexually explicit and inappropriate
text messages, as the board found.
       {¶ 24} Moreover, we reject the parties’ stipulation and the board’s finding
that Mismas made a timely good-faith effort to rectify the consequences of his
misconduct. BCGD Proc.Reg 10(B)(2)(c) provides that a respondent’s “timely
good faith effort to make restitution or rectify consequences of misconduct” may
be considered in favor of recommending a less severe sanction. While the record
contains substantial evidence of the efforts that Mismas has taken to rectify his
alcoholism, his alcohol dependency is a contributing cause rather than the
consequence of his misconduct. And here, the only evidence that Mismas’s
efforts to rectify the consequences of his actions toward Ms. C consists of several




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texts that he sent to her following his request for sexual favors—one stating that
he was kidding, several others stating that he was sorry and that the conduct
would not happen again, and another acknowledging that his conduct was
unprofessional.
       {¶ 25} But Ms. C testified that when she resigned her employment,
Mismas became hostile, put her down for being naïve, and threatened to contact
her professors to tell them what a stupid decision she had made.        His brief
apology to her at the panel hearing and his efforts to have her testimony placed
under seal to protect her from future harm, although appropriate, do little to
meliorate Ms. C’s anxiety, embarrassment, frustration, disappointment, and fear
of harm to her professional reputation.
       {¶ 26} Based on the foregoing, we conclude that more than a public
reprimand is necessary to protect the public from future misconduct.
Accordingly, John Daniel Mismas is suspended from the practice of law in Ohio
for one year, with the last six months stayed on the conditions that he engage in
no further misconduct and continue to comply with all recommendations of his
treating medical and psychological professionals. Costs are taxed to Mismas.
                                                           Judgment accordingly.
       O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
                             ____________________
       James P. Koerner, for relator.
       Charles J. Kettlewell, for respondent.
                         _________________________




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