2018 Ohio 2705
Ohio2018Background
- Brian W. Benbow, admitted 1999, was retained to represent K.V. in child-visitation proceedings in 2014; representation concluded in September 2014.
- After and during representation Benbow and K.V. developed a sexual relationship involving sexual texts/photos, a lunch where he kissed and touched her, and saved explicit photos on his computer.
- At a December 18, 2014 courthouse hearing they entered a monitored conference room; videotape shows K.V. fondling Benbow for eight minutes while he sat beside her.
- Benbow misrepresented the extent and nature of the relationship in a self-report to the bar and repeatedly lied or omitted material facts during the disciplinary investigation and under oath.
- The Board of Professional Conduct and the parties stipulated Benbow violated multiple Professional Conduct Rules, and recommended a two-year suspension with the second year stayed on conditions.
- The Supreme Court adopted the recommendation: two-year suspension, second year stayed if conditions met (OLAP compliance, no further misconduct, one-year monitored probation); costs taxed to Benbow.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether sexual activity with a client violated Prof.Cond.R. 1.8(j) | Benbow solicited/engaged in sexual activity with a client during representation; rule prohibits such conduct absent preexisting relationship | Relationship developed consensually; attempted to minimize or deny misconduct | Court held Benbow violated Rule 1.8(j) for sexual conduct with a client |
| Whether Benbow made false statements and engaged in deceit in disciplinary process | Relator argued Benbow knowingly made false statements, lied under oath, and submitted deceptive statements to investigators | Benbow minimized, omitted, or denied conduct; argued lack of intent or disputed details | Court found violations of Rules 8.1(a) and 8.4(c),(d) for false statements, deceit, and conduct prejudicial to administration of justice |
| Whether conduct reflected adversely on fitness to practice (Prof.Cond.R. 8.4(h)) | Pattern of sexual misconduct with a vulnerable client plus repeated dishonesty shows unfitness | Benbow offered character letters and OLAP participation as mitigation | Court found conduct sufficiently egregious to violate Rule 8.4(h) |
| Appropriate sanction given misconduct and precedent | Relator recommended suspension given sexual misconduct plus a course of dishonest conduct | Benbow and defense urged mitigation (no prior discipline, character evidence, treatment) and proposed stipulated sanction (two years, second year stayed) | Court imposed two-year suspension with second year stayed on conditions: compliance with OLAP, no further misconduct, and one-year monitored probation |
Key Cases Cited
- Disciplinary Counsel v. Detweiler, 135 Ohio St.3d 447 (2013) (one-year suspension for repeated unsolicited sexual advances and transmission of nude photo)
- Cleveland Metro. Bar Assn. v. Lockshin, 125 Ohio St.3d 529 (2010) (indefinite suspension for pattern of sexual communications with multiple clients and false deposition testimony)
- Disciplinary Counsel v. Bricker, 137 Ohio St.3d 35 (2013) (conduct reflecting on fitness to practice supports disciplinary action)
- Disciplinary Counsel v. Gildee, 134 Ohio St.3d 374 (2012) (two-year suspension, second year stayed, for dishonesty and falsification in client funds matter)
- Disciplinary Counsel v. Fowerbaugh, 74 Ohio St.3d 187 (1995) (course of dishonest conduct requires an actual suspension)
- Cincinnati Bar Assn. v. Moore, 143 Ohio St.3d 252 (2015) (two-year suspension, second year stayed, for shoplifting incidents and misleading relator)