[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Benbow, Slip Opinion No. 2018-Ohio-2705.]




                                        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-2705
                       DISCIPLINARY COUNSEL v. BENBOW.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
       may be cited as Disciplinary Counsel v. Benbow, Slip Opinion No.
                                   2018-Ohio-2705.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct—Two-
        year suspension, with second year stayed on conditions.
     (No. 2017-1734—Submitted January 24, 2018—Decided July 12, 2018.)
   ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
                                 Court, No. 2017-020.
                             _______________________
        Per Curiam.
        {¶ 1} Respondent, Brian William Benbow, of Zanesville, Ohio, Attorney
Registration No. 0071404, was admitted to the practice of law in Ohio in 1999.
        {¶ 2} In a complaint certified to the Board of Professional Conduct on April
6, 2017, relator, disciplinary counsel, alleged that Benbow violated multiple
professional-conduct rules by engaging in sexual activity with a client in a
                             SUPREME COURT OF OHIO




courthouse conference room and repeatedly lying about that conduct during the
ensuing disciplinary investigation. The parties submitted joint stipulations in which
Benbow admitted to most of the charged misconduct. They agreed that multiple
aggravating and mitigating factors are present and jointly recommended that
Benbow be suspended from the practice of law for two years, with the second year
stayed on conditions.
       {¶ 3} After conducting a hearing, a panel of the board issued a report in
which it found that Benbow committed all of the stipulated misconduct and
recommended that we adopt the parties’ stipulated sanction. The board adopted the
panel’s report in its entirety. We adopt the board’s findings and suspend Benbow
from the practice of law for two years, with the second year stayed on conditions.
                                    Misconduct
       {¶ 4} K.V. retained Benbow in May 2014 to represent her in a child-
visitation proceeding that was pending in the Coshocton County Court of Common
Pleas, Probate and Juvenile Division. On August 18, 2014, Benbow filed a written
closing argument on K.V.’s behalf, and the magistrate issued a decision the
following day. Benbow’s representation of K.V. was complete on September 8,
2014, when the judge adopted the magistrate’s decision.
       {¶ 5} Before the judge issued the final decision in K.V.’s case, however,
Benbow and K.V. developed a personal relationship. They exchanged texts and
Facebook messages of a sexual nature along with explicit photographs of
themselves—though they had agreed in advance that they would delete any such
communications immediately after receiving them. Despite their agreement, a total
of seven digital photographs of K.V. were saved to Benbow’s computer on
September 23 and 24, 2014. Benbow also admitted that he had had at least one
lunch date with K.V., during which he kissed her and touched her breast.
       {¶ 6} The father of K.V.’s child filed a motion to modify the court’s
previous visitation orders on September 23, 2014, and K.V. once again retained




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Benbow to represent her. Benbow subsequently kissed K.V. during a meeting at
his office, but she stopped him and insisted that they prepare for her case.
          {¶ 7} After attending a December 18, 2014 hearing, Benbow and K.V.
entered a courthouse conference room to wait for the magistrate to complete the
final orders.    The conference room was equipped with a video camera that
transmitted a live feed that was monitored by courthouse deputies. The video
shows—and Benbow now stipulates—that he was initially seated across from K.V.
but that he later moved to a chair next to her and placed his file and winter coat
over his lap. Together, they placed K.V.’s hand under Benbow’s coat and onto his
lap, and for the next eight minutes she fondled him and rubbed his penis through
his clothing. The fondling ceased when Benbow answered a telephone call, during
which the courthouse deputies delivered the magistrate’s orders. Benbow and K.V.
then left the courthouse together, hugged, and went their separate ways. Their
conduct in the conference room was referred to the Coshocton County Sheriff’s
Office.
          {¶ 8} The sheriff’s office interviewed K.V. on December 23, 2014, but after
speaking with her brother (an attorney) during a break, she terminated the
interview. After leaving the sheriff’s office, she called and arranged to meet
Benbow that evening. When she arrived, Benbow checked her phone and patted
her down to ensure that she was not recording their conversation. K.V. confirmed
that, pursuant to their agreement, she had deleted all of their digital photographs
and communications as they occurred. Benbow advised her to retain separate
counsel and then blocked all communication with her.
          {¶ 9} Approximately one month later, Benbow, through his attorney, sent a
letter to the Columbus Bar Association purporting to self-report the allegations
against him. In that letter, however, Benbow not only affirmatively misrepresented
the extent of his relationship with K.V. and the nature of their conduct in the
conference room but also denied that he had engaged in any misconduct.




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       {¶ 10} Benbow was not forthcoming or cooperative when relator deposed
him on September 15, 2016. While under oath, he omitted relevant information
and affirmatively misrepresented facts regarding several issues, including the
nature of his personal relationship with K.V., whether they had exchanged
photographs of a sexual nature, and his role in the conduct caught on courthouse
video. After reviewing the transcript of that deposition, Benbow submitted an
errata sheet in which he purported to clarify his testimony—but that document also
omitted relevant information and affirmatively misrepresented facts. Benbow’s
noncooperation continued at the panel hearing—the board characterized his
testimony there as evasive and argumentative; even Benbow admitted that he was
“struggling with denial.”
       {¶ 11} The board adopted the parties’ stipulations that Benbow’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 existed prior to
the client-lawyer relationship), 8.1(a) (prohibiting a lawyer from knowingly
making a false statement of material fact in connection with a disciplinary matter),
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).
       {¶ 12} In addition, the board found that the scope and extent of Benbow’s
repeated and improper sexual conduct with his client and the subsequent course of
dishonest conduct constituted “extremely troubling behavior by a lawyer” and were
sufficiently egregious as to warrant a finding that he 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). See Disciplinary Counsel v. Bricker, 137 Ohio
St.3d 35, 2013-Ohio-3998, 997 N.E.2d 500, ¶ 21.




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                                January Term, 2018




                                     Sanction
       {¶ 13} When imposing sanctions for attorney misconduct, we consider
several relevant factors, including the ethical duties the lawyer violated, the
aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions
imposed in similar cases.
       {¶ 14} The parties stipulated and the board found that the relevant
aggravating factors here include Benbow’s dishonest or selfish motive, lack of
cooperation during the disciplinary process, and making false statements,
submitting false evidence, or engaging in other deceptive practices during the
disciplinary process. See Gov.Bar R. V(13)(B)(2), (5), and (6). The board also
found that Benbow had engaged in a pattern of misconduct involving multiple
offenses, acted for his own gratification, harmed a vulnerable client who was
embroiled in a contentious custody dispute with someone Benbow described as a
“dangerous individual,” and harmed the profession by engaging in sexual activity
in a courthouse, knowingly making false statements during relator’s investigation,
and lying under oath on multiple occasions in an effort to conceal his misconduct.
See Gov.Bar R. V(13)(B)(3), (4), and (8). Further, the board suggested that
Benbow failed to accept responsibility for his misconduct at his disciplinary
hearing—though it did not expressly identify that failure as an aggravating factor.
       {¶ 15} As mitigating factors, the parties stipulated and the board found that
Benbow has no prior disciplinary record and had submitted approximately 40 letters
attesting to his good character and reputation. See Gov.Bar R. V(13)(C)(1) and (5).
Although Benbow presented evidence that he had sought assistance from the Ohio
Lawyers Assistance Program (“OLAP”), the board noted that he did not do so until
after relator filed his complaint. Indeed, Benbow has made no effort to establish
that he suffered from a mitigating mental disorder, although he testified that he has
been treated for anxiety and depression in the past and recently resumed counseling.
See Gov.Bar R. V(13)(C)(7).




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                             SUPREME COURT OF OHIO




       {¶ 16} In recommending that we impose the parties’ agreed sanction of a
two-year suspension with the second year stayed on conditions, the board
considered two lines of cases—those involving repeated inappropriate sexual
conduct with clients and those involving a course of dishonest conduct.
       {¶ 17} In Disciplinary Counsel v. Detweiler, 135 Ohio St.3d 447, 2013-
Ohio-1747, 989 N.E.2d 41, we imposed a one-year suspension on an attorney who
made repeated unsolicited and unwelcome sexual advances toward a vulnerable
client through text messages that culminated in his transmission of a nude
photograph of himself in a state of sexual arousal. Unlike Benbow, Detweiler did
not develop a physical relationship with his client or engage in false or deceptive
conduct during the resulting disciplinary investigation.
       {¶ 18} In Cleveland Metro. Bar Assn. v. Lockshin, 125 Ohio St.3d 529,
2010-Ohio-2207, 929 N.E.2d 1028, we indefinitely suspended an attorney who
engaged in a pattern of inappropriate sexual communications with multiple clients,
including a minor. Like Benbow, Lockshin avoided taking full responsibility for
his inappropriate behaviors and gave false deposition testimony. But Lockshin’s
conduct was arguably more egregious than Benbow’s because Lockshin engaged
in inappropriate sexual communications with multiple clients. Moreover, Lockshin
had significant mental-health problems, he withdrew from certain treatment against
the advice of his treatment professionals, and his counselor testified that he would
be “very apprehensive” about recommending that Lockshin be permitted to
continue practicing law if he did not take his counseling seriously.
       {¶ 19} We have held that an attorney who engages in a course of conduct
that involves dishonesty, fraud, deceit, or misrepresentation must serve an actual
suspension from the practice of law for an appropriate period of time. Disciplinary
Counsel v. Fowerbaugh, 74 Ohio St.3d 187, 658 N.E.2d 237 (1995), syllabus. In
Disciplinary Counsel v. Gildee, 134 Ohio St.3d 374, 2012-Ohio-5641, 982 N.E.2d
704, we imposed a two-year suspension, with the second year stayed on conditions,




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                                 January Term, 2018




based on an attorney’s failure to deliver funds that her client was entitled to receive,
falsification of a document in an attempt to justify that failure, and false
representation to the relator regarding the status of the payment. We also imposed
that sanction on an attorney who engaged in seven incidents of shoplifting and
attempted to mislead the relator by making false statements and omitting relevant
information during the ensuing disciplinary investigation. Cincinnati Bar Assn. v.
Moore, 143 Ohio St.3d 252, 2015-Ohio-2488, 36 N.E.3d 171.
        {¶ 20} Because Benbow not only engaged in an inappropriate sexual
relationship with a client but also engaged in a course of dishonest conduct
involving multiple false denials and lies under oath, we agree that a two-year
suspension, with the second year stayed on the conditions recommended by the
board, is the appropriate sanction in this case.
        {¶ 21} Accordingly, Brian William Benbow is suspended from the practice
of law in Ohio for two years, with the second year stayed on the conditions that he
engage in no further misconduct, remain in compliance with his September 27,
2017 OLAP contract and any extension thereto, and serve a one-year period of
monitored probation in accordance with Gov.Bar R. V(21). If Benbow fails to
comply with a condition of the stay, the stay will be lifted and he will serve the full
two-year suspension. Costs are taxed to Benbow.
                                                               Judgment accordingly.
        O’CONNOR, C.J., and O’DONNELL, KENNEDY, FRENCH, FISCHER, and
DEWINE, JJ., concur.
        DEGENARO, J., not participating.
                                _________________
        Scott J. Drexel, Disciplinary Counsel, and Donald M. Scheetz, Assistant
Disciplinary Counsel, for relator.
        Charles J. Kettlewell, L.L.C., and Charles J. Kettlewell, for respondent.
                                _________________




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