Disciplinary Counsel v. Warren (Slip Opinion)
2016 Ohio 7333
| Ohio | 2016Background
- Kenneth Jay Warren, admitted 1977, was convicted of one count of sexual battery (R.C. 2907.03) after a 2014 jury trial; acquitted of rape. He was criminally sentenced to community control, sex-offender treatment, a fine, and ordered to avoid the victim.
- The Supreme Court of Ohio imposed an interim felony suspension on March 26, 2015, following the conviction; disciplinary charges were filed May 13, 2015.
- Facts: a female friend stayed overnight at Warren’s home; after she took pain medication, Warren gave her a sleeping pill; during the night he digitally and orally penetrated her while she was semiconscious; she told him to stop and later fell back asleep.
- Warren stipulated his conduct violated Prof.Cond.R. 8.4(b) (illegal acts reflecting adversely on honesty/trustworthiness) and admitted a dishonest or selfish motive as an aggravator, while citing lack of prior discipline, cooperation, good character, acknowledgment of wrongdoing, and imposition of criminal penalties as mitigators.
- Parties entered a consent-to-discipline agreement recommending a two-year suspension with no portion stayed and no credit for time already served under the interim felony suspension; reinstatement to require compliance with criminal sentence/community control.
- The Board and the Supreme Court adopted the consent agreement; two justices dissented—one urging remand for consideration of indefinite suspension/disbarment, another would have credited interim suspension time.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Warren’s conviction supports professional misconduct under Prof.Cond.R. 8.4(b) | Conviction for sexual battery is an illegal act reflecting adversely on honesty/trustworthiness warranting discipline | Implicitly disputed severity and appropriate sanction (consented to discipline focused on term suspension and mitigators) | Court: Yes; violation of Prof.Cond.R. 8.4(b) established |
| Appropriate disciplinary sanction for felony sexual-battery conviction | Two-year suspension (no portion stayed), no credit for interim felony suspension; reinstatement conditioned on full compliance with criminal sentence | Warren consented to the stipulated two-year suspension but sought consideration of interim-suspension credit (dissent) | Court: Adopted two-year suspension, no credit for interim suspension; costs taxed to Warren |
| Whether mitigation warrants reduced or stayed suspension | Cited absence of prior discipline, cooperation, good character, acknowledgment, and criminal penalties as significant mitigators supporting term suspension | Aggravator: dishonest/selfish motive argued to justify more severe sanction by dissent | Court: Mitigating factors weighed sufficient to support two-year term suspension (not indefinite) |
| Whether more severe sanctions (indefinite suspension/disbarment) are required given nature of sexual offense | Board/plaintiff argued case differs from child-sex-felony precedents; adult victim and social relationship justify term suspension | Dissent argued offense severity warranted remand for consideration of indefinite suspension/disbarment | Court: Declined to impose indefinite suspension; adopted two-year suspension as appropriate |
Key Cases Cited
- Disciplinary Counsel v. Petroff, 85 Ohio St.3d 396 (one-year suspension for felony unrelated to client representation)
- Disciplinary Counsel v. Pappas, 141 Ohio St.3d 1 (two-year suspension for felony involving false statements and false affidavit)
- Cleveland Metro. Bar Assn. v. Haynes, 143 Ohio St.3d 528 (two-year suspension with portion stayed for fraud-related felony scheme)
- Disciplinary Counsel v. Goldblatt, 118 Ohio St.3d 310 (indefinite suspension for felony sex crime involving an underage victim)
- Dayton Bar Assn. v. Greenberg, 135 Ohio St.3d 430 (indefinite suspension for possession/transfer of child pornography)