ethics

Child Pornography Nets Indefinite Suspension

Lest there by any uncertainty, Ohio attorneys are NOT permitted to download pornography of children under 12 and maintain their license. On July 18, 2020, the Supreme Court of Ohio indefinitely suspended David Conners for his felony conviction on one count of illegal use of a minor in nudity-oriented material saying it adversely reflected on his honesty, trustworthiness and fitness to practice law.

Conners stipulated to the download and use of the photos on his electronic devices. He testified he did not know doing so was a felony since the children were not engaged in sexual activity but were merely posing nude. He understood that pornography involving underage children inherently victimizes the children. He further testified that the download of the material was not an accident.

The Supreme Court of Ohio adopted the Board’s finding that such conduct violated Ohio Prof.Cond.R. 8.4(b) prohibiting lawyers from engaging in conduct that adversely reflects on the lawyer’s honesty and trustworthiness and Prof.Cond.R. 8.4(h) (engaging in conduct that adversely reflects on the lawyer’s fitness to practice law. The offense is considered a crime of moral turpitude.

An indefinite suspension prohibits Conners from applying for reinstatement of his law license for at least two years. When he does apply for reinstatement, he must demonstrate that he has the requisite character and fitness to practicing law as though he were applying for a law license for the first time.

The full opinion can be reviewed at 2020-Ohio-3339.

ethics

Attorney Sanctioned For Practicing During Interim Suspension

On February 23, 2018, the Supreme Court of Ohio suspended Rebecca Jo Austin of Lakewood for failing to answer a Complaint that the Cleveland Metropolitan Bar Association filed against her with the Board of Professional Conduct.  The suspension was an interim default suspension.  This is an immediate suspension from the practice of law for failing to respond to the formal complaint.  When this occurs, an attorney is not permitted to practice law.

On May 4, 2018, the Supreme Court of Ohio found Ms. Austin to be in contempt for failing to comply with its default suspension Order.  On August 22, 2018, Ms. Austin moved for leave to file an answer, which the Supreme Court of Ohio granted.  It then remanded the matter to the Board of Professional Conduct.

On remand, the Cleveland Metropolitan Bar Association amended its complaint to add practicing while under suspension.  After hearing, the Board recommended that Ms. Austin be indefinitely suspended with credit for time served.  The Supreme Court of Ohio ordered an indefinite suspension but declined to give Ms. Austin credit for time served.  An indefinite suspension is a suspension for a minimum of two (2) years.  Prior to being reinstated, however, the attorney must demonstrate the requisite character and fitness that the attorney was required to show when she originally applied for a license to practice law.

Ms. Austin was disciplined for neglecting two matters, failing to return a retainer upon being discharged, failing to appear at court hearings, for practicing law while under suspension, and for misrepresenting to clients and courts about her suspension.

Interestingly, the Cleveland Metropolitan Bar Association opposed Ms. Austin’s disbarment, indicating that it believed that Ms. Austin was likely to establish in the future her ability to be readmitted to the practice of law.

Although it seems axiomatic, the importance of responding to disciplinary investigations and prosecutions is most important. The matter will not go away.  It will just compound the ethics charges and the sanction.

ethics

Board Recommends Indefinite Suspension for Judge Horton

In a 42-page Report to the Supreme Court of Ohio, the Board of Professional Conduct recommended that Judge Horton be indefinitely suspended from the practice of law.  In a three-count complaint, Relator, Disciplinary Counsel, charged Judge Horton with misconduct involving failure to file accurate campaign finance reports, misusing county resources in his judicial campaign, and inappropriate sexual conduct with a former intern and sexually harassing his secretary.

On March 16, 2017, Judge Horton pled guilty to three first-degree misdemeanor counts of failing to file complete and accurate records regarding campaign contributions and expenditures.  Judge Horton was sentenced to 6-month consecutive jail sentences, which were suspended in favor of probation.

The Board found that Judge Horton engaged in misconduct by insisting that his staff work on his judicial election campaign on county time.

County Three involved Judge Horton having inappropriate sexual conduct with two members of his judicial staff both in the workplace and outside of the workplace. One involved his secretary, a former hostess at T. Murray’s Bar and Grill. Judge Horton informed her of a secretarial position available at his office and she took the job, saving her from having to work two part-time jobs.  During her employment, Judge Horton made it clear that she was to be at his beck and call, work on his campaign, be available to entertain his friends and endure his constant sexual harassment.  He also sent her inappropriate text messages and later instructed her to destroy them.

Judge Horton also sexually harassed a legal intern during her internship.  He spoke to the intern about the importance of loyalty and explained that people got jobs in the legal industry by being loyal.  Judge Horton told the intern about the power he possessed and his ability to affect people’s careers.  The result was that, even though she did not want to, the intern agreed to have sex with Judge Horton.

The Board found that Judge Horton’s misconduct called into question his character and integrity as both an attorney and a judge.  It found that he violated Jud. Cond. Rules 1.2, 1.3, 2.3(B) and Prof. Cond.R. 8.4(h).  The Board recommended to the Supreme Court of Ohio that Judge Horton be indefinitely suspended from the practice of law.

The Supreme Court of Ohio now must decide whether to adopt the Board’s recommendation.  If Judge Horton is indefinitely suspended, he will lose the ability to remain on the 10th District Court of Appeals until reinstated to the practice of law, a minimum of at least two years.