Thursday, July 12, 2018

Sex, Lies And Videotape In Ohio

The Ohio Supreme Court imposed a partially-stayed suspension for misconduct that included the following

After attending a December 18, 2014 hearing, Benbow and [client] K.V. entered a courthouse conference room to wait for the magistrate to complete the final orders. The conference room was equipped with a video camera that transmitted a live feed that was monitored by courthouse deputies. The video shows—and Benbow now stipulates—that he was initially seated across from K.V. but that he later moved to a chair next to her and placed his file and winter coat over his lap. Together, they placed K.V.’s hand under Benbow’s coat and onto his lap, and for the next eight minutes she fondled him and rubbed his penis through his clothing. The fondling ceased when Benbow answered a telephone call, during which the courthouse deputies delivered the magistrate’s orders. Benbow and K.V. then left the courthouse together, hugged, and went their separate ways. Their conduct in the conference room was referred to the Coshocton County Sheriff’s Office.

Dan Trvas summarized the case

A Zanesville attorney caught on courthouse security cameras engaging in sexual activity with a client, then lying about the encounter during a disciplinary investigation, has been suspended by the Ohio Supreme Court for two years, with one year stayed.

In a 6-0 per curiam decision, the Supreme Court today suspended Brian W. Benbow, who admitted to misrepresenting the facts about his personal relationship with his client before eventually stipulating that he violated multiple rules governing the conduct of Ohio attorneys. Justice Mary DeGenaro did not participate in the case.

Relationship Begins During Child-Visitation Proceedings
Benbow was hired by a woman identified in court records as K.V. in May 2014 to represent her in a child-visitation proceeding in Coshocton County Common Pleas Court.

Before the judge could issue a final decision in the matter, Benbow and K.V. developed a personal relationship in which they exchanged texts and Facebook messages of a sexual nature along with explicit photographs of themselves. The two agreed to delete the communications immediately after receiving them, but seven digital photos of K.V. were saved to Benbow’s personal computer.

Activity Caught on Camera
In September 2014, the father of K.V.’s child asked the court to modify his visitation order. After a December 2014 hearing, Benbow and K.V. entered a Coshocton County courthouse conference room to wait for the magistrate to complete the final orders. The conference room was equipped with a video camera, which transmitted a live feed monitored by courthouse deputies. Video footage showed Benbow initially seated across from K.V. But he moved to a chair next to her and placed his file and winter coat over his lap. The two placed K.V.’s hand under Benbow’s coat.

The conduct in the conference room was reported to the Coshocton County Sheriff’s Office, which interviewed K.V. After the interview, K.V. arranged to meet with Benbow. At a meeting at his house, Benbow checked K.V.’s phone and patted her down to ensure she was not recording the conversation. Benbow advised her to hire another lawyer and then blocked all communication with her.

Benbow Reports Activity
About a month after K.V. and Benbow met, Benbow self-reported some of his improper activities to the Columbus Bar Association. The letter misrepresented the extent of the relationship with K.V. and the nature of the conduct in the conference room, and he denied violating any professional misconduct rules.

During a September 2016 deposition with the Office of the Disciplinary Counsel, Benbow omitted relevant information under oath, and misrepresented facts, including that he exchanged explicit photographs with K.V. and his conduct that was caught on courthouse video. After reviewing the deposition transcript, Benbow submitted a report to clarify his testimony, but the report omitted key information.

The disciplinary counsel filed a complaint in April 2017 with the Board of Professional Conduct alleging that Benbow violated multiple rules. A three-member panel of the board conducted a hearing on the matter. The board reported Benbow as non-cooperative, stating that his testimony was “evasive and argumentative.” It noted Benbow admitted he was “struggling with denial.”

Disciplinary counsel and Benbow stipulated that Benbow violated several rules including: soliciting or engaging in sexual activity with a client; knowingly making a false statement in connection with a disciplinary matter; and engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.

The board also concluded that Benbow’s “repeated and improper sexual conduct with his client and the subsequent course of dishonest conduct” warranted a finding that he engaged in conduct that adversely reflects his fitness to practice law.

Court Finds Suspension Warranted
When considering a sanction, the Court considers aggravating circumstances that would increase the punishment it imposes on a lawyer and mitigating factors, which could lead to a reduced penalty.

The parties agreed and the board found Benbow had a dishonest and selfish motive, did not cooperate in the disciplinary process, made false statements, submitted false evidence, and engaged in deceptive practices during the disciplinary process. The board also found he committed multiple rule offenses, acted for his own gratification, harmed a vulnerable client, lied under oath, and harmed the profession by engaging in sexual activity in the courthouse.

Among the mitigation factors, the board found Benbow had no prior disciplinary record, submitted 40 letters attesting to his good character and reputation, and demonstrated he sought help from the Ohio Lawyers Assistance Program (OLAP). The board noted he didn’t seek OLAP assistance until after the disciplinary counsel filed its 2017 complaint.

“Because Benbow not only engaged in an inappropriate sexual relationship with a client, but also engaged in a course of dishonest conduct involving multiple false denials and lies under oath, we agree that a two-year suspension, with the second year stayed on the conditions recommended by the board, is the appropriate sanction for this case,” the Court stated.

Benbow must not commit further misconduct, remain in compliance with his OLAP contract, and if reinstated, must serve one year of monitored probation.

2017-1734Disciplinary Counsel v. BenbowSlip Opinion No. 2018-Ohio-2705.

(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2018/07/the-ohio-supreme-court-a-zanesville-attorney-caught-on-courthouse-security-cameras-engaging-in-sexual-activity-with-a-client.html

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