2018 Ohio 4717
Ohio2018Background
- Jason Allan Sarver, an Ohio attorney admitted in 2007, engaged in a sexual relationship with J.B., an indigent criminal defendant he later was appointed to represent.
- The relationship began after an initial meeting to discuss J.B.’s criminal matters; Sarver instructed J.B. to turn off her phone GPS while a warrant was outstanding, delaying her arrest.
- While court-appointed counsel for J.B., Sarver continued sexual activity with her multiple times and trespassed to use a neighbor’s hot tub; he also lied to the presiding judge about the relationship.
- A special prosecutor indicted Sarver on multiple counts (including sexual-battery counts later dismissed); he pleaded to misdemeanors (trespass and obstructing official business), received community control, and withdrew his candidacy for prosecutor.
- The Board of Professional Conduct found violations of Prof.Cond.R. 1.8(j), 8.4(b), 8.4(c), and 8.4(d); it recommended a two-year suspension fully stayed on conditions, but the Supreme Court imposed a two-year suspension with 18 months stayed and an 6-month actual suspension.
- The Court emphasized the per se prohibition on sexual relations with a client absent a preexisting sexual relationship and the special vulnerability of indigent criminal defendants; conditions for the stayed portion include OLAP compliance, MPRE passage, ethics CLE, monitored probation, and no further misconduct.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Sarver violated professional-conduct rules by engaging in sexual activity with an indigent, court-appointed client | Relator: sexual relationship with a client during representation violates Prof.Cond.R. 1.8(j) and other rules; client was vulnerable and the relationship was exploitative | Sarver: relationship was consensual; client not prejudiced; mitigating circumstances warrant leniency | Court: Violations of Prof.Cond.R. 1.8(j), 8.4(b), 8.4(c), 8.4(d) affirmed — sexual activity with client without preexisting relationship is per se violation |
| Whether client’s apparent consent or lack of prejudice to the criminal case mitigates sanction | Relator: consent and lack of prejudice do not excuse per se rule violation or prevent harm; vulnerability matters | Sarver/Board: client leveraged relationship and case outcome not harmed; public consequences already severe for Sarver | Court: Consent/lack of prejudice are not mitigating; inherent harm and power imbalance require actual suspension |
| Appropriate sanction for misconduct (degree of stayed vs. actual suspension) | Relator: actual suspension required given exploitation, dishonesty, obstruction | Sarver/Board: recommend two-year suspension fully stayed on conditions (or with conditions) emphasizing mitigating factors | Court: Two-year suspension with 18 months stayed (6 months actual) and conditions; concurrence would have one-year actual suspension (two-year with one year stayed) |
| Weight of mitigating/aggravating factors (dishonesty, prior discipline, remediation) | Board/Sarver: cooperation, counseling, no prior discipline, character letters, and collateral consequences are compelling mitigation | Relator: aggravators (dishonest/selfish motive, multiple offenses) outweigh mitigation given exploitation and lies to court | Court: Found aggravators and some mitigation; mitigation insufficient to avoid an actual suspension given the client’s vulnerability and dishonesty to the court |
Key Cases Cited
- Disciplinary Counsel v. Booher, 75 Ohio St.3d 509 (1996) (one-year actual suspension where court-appointed counsel had sex with incarcerated client; highlights inherent inequality in criminal defense relationships)
- Disciplinary Counsel v. Freeman, 106 Ohio St.3d 334 (2005) (six-month actual suspension for sexual exploitation including sexual acts and payments to a young client)
- Disciplinary Counsel v. Krieger, 108 Ohio St.3d 319 (2006) (two-year suspension, one year stayed, for a public defender who had sexual and financial involvement with a client)
- Akron Bar Assn. v. Williams, 104 Ohio St.3d 317 (2004) (two-year suspension, last 18 months stayed, for attorney who had sexual relationship with vulnerable client and lied under oath)
- Disciplinary Counsel v. Detweiler, 135 Ohio St.3d 447 (2013) (discussion of sexual relationships with clients and client vulnerability as a basis for discipline)
- Disciplinary Counsel v. Fowerbaugh, 74 Ohio St.3d 187 (1995) (establishes that conduct involving dishonesty, fraud, deceit, or misrepresentation warrants an actual suspension)
- Cleveland Metro. Bar Assn. v. Sleibi, 144 Ohio St.3d 257 (2015) (recognizes emotional harm to clients from attorneys’ sexual relationships as relevant to discipline)