Disciplinary Counsel v. Owen
142 Ohio St. 3d 323
| Ohio | 2014Background
- James D. Owen, an Ohio criminal-defense lawyer with capital-case experience, represented Robert Caulley in a 1997 capital prosecution after being appointed as sole counsel.
- Caulley’s wife moved to Columbus and worked in Owen’s office; Owen and Mrs. Caulley began a sexual relationship about a week–10 days before trial that continued through the trial and thereafter.
- Owen did not disclose the relationship to Caulley, appellate counsel, or the court; Caulley later learned of it years after conviction and then, in 2011, moved for a new trial based on the affair.
- Owen admitted the misconduct to disciplinary authorities in 2011, cooperated, executed a five-year contract with the Ohio Lawyers Assistance Program, and sought treatment for ADD, depression, and alcohol problems.
- The disciplinary complaint charged violations of the Code of Professional Responsibility (DR 5-101(A)(1), 1-102(A)(5), 1-102(A)(6)). The Board recommended a two-year suspension with one year stayed on conditions; the Supreme Court of Ohio adopted that sanction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an attorney’s sexual relationship with a client’s spouse during active representation creates an impermissible conflict of interest | Relator: Such a relationship creates an inherent conflict that undermines undivided loyalty and violates DR 5-101(A)(1) and related rules | Owen: While improper, he believed his representation was not adversely affected and emphasized mitigating circumstances (mental health, cooperation) | Held: The sexual relationship creates an inherent, impermissible conflict that violates the cited disciplinary rules and compromises effective assistance of counsel |
| Whether Owen’s conduct warranted discipline and what sanction is appropriate | Relator: Serious breach of duty meriting significant suspension | Owen: Mitigating factors (no prior discipline, full cooperation, treatment, mental-health issues, long career of public service) support a stayed portion of any suspension | Held: Two-year suspension with second year stayed contingent on compliance with OLAP contract and no further misconduct; costs taxed to Owen |
| Whether the misconduct affected Caulley’s criminal proceedings and required remedial relief | Relator and record: The conflict can violate constitutional right to undivided loyalty and justify a new trial | Owen: He argued outcome would not have changed and did not disclose to appellate counsel | Held: Court recognized the conflict undermines constitutional effective-assistance protections; fact pattern supported relief in Caulley’s criminal case (new trial granted at trial court) |
Key Cases Cited
- People v. Singer, 226 Cal.App.3d 23 (Cal. Ct. App. 1990) (attorney’s affair with defendant’s wife can deprive defendant of undivided loyalty and justify habeas relief)
- Lawyer Disciplinary Bd. v. Artimez, 208 W.Va. 288 (W. Va. 2000) (discipline for deceptive cover-up; noted novelty of disciplining affair itself)
- In re Disciplinary Proceedings Against Gamino, 286 Wis.2d 558 (Wis. 2005) (suspension where sexual relationships with clients violated conflict and other conduct rules)
- In re Disciplinary Proceedings Against Inglimo, 305 Wis.2d 71 (Wis. 2007) (multi-year suspension involving sexual relationships with client’s spouse and extensive other misconduct)
- In re Anonymous Member of South Carolina Bar, 389 S.C. 462 (S.C. 2010) (admonition holding sexual relationship with client’s spouse a per se Rule 1.7 violation)
- People v. Bauder, 941 P.2d 282 (Colo. 1997) (public censure for soliciting prostitution from client’s spouse during representation)
- State v. Forrest, 136 Ohio St.3d 134 (Ohio 2013) (procedural authority relied on in appellate review of Caulley’s new-trial proceedings)
- State v. Forrest, 136 Ohio St.3d 325 (Ohio 2013) (Court’s disposition affirming denial of leave to appeal in related proceedings)
- Cleveland Bar Assn. v. Kodish, 110 Ohio St.3d 162 (Ohio 2006) (disapproval of lawyers engaging in sexual conduct with clients during representation)
- Disciplinary Counsel v. Booher, 75 Ohio St.3d 509 (Ohio 1996) (recognition of client vulnerability in criminal cases and the heightened duty not to exploit it)