Monday, December 6, 2021

More Than Banter?

On the oral argument docket tomorrow before the Ohio Supreme Court is a matter described below by Kathleen Maloney.

If the penultimate paragraph of Disciplinary Counsel's brief is any indication, it should be interesting

Respondent exploited a vulnerable client to satisfy his sexual appetite. And when faced with an opportunity to admit his transgressions and make amends, he cowered. He forced V.W. to defend her integrity in a public forum betting that his status as a lawyer, and his cool and calm demeanor, would prevail. But he failed. V.W. was “credible” and “displayed a sense of forthrightness and candor,” and “evinced no evidence of bitterness or anger,” while respondent proved to be a dishonest coward.

The web page summary

Disciplinary Counsel v. Kevin C. Cox, Case No. 2021-0975
Coshocton County

The Board of Professional Conduct recommends a two-year suspension with one year stayed for Coshocton attorney Kevin Cox. The board found that Cox had a consensual sexual relationship with an important client who was seeking a divorce and that Cox lied about the relationship in disciplinary inquiries and proceedings.

The attorney disputes the board’s findings and opposes the recommended sanction, arguing that he only sent sexual text messages and emails but never had sex with the client. Because he has objected to the board’s report, the Ohio Supreme Court must hear oral argument in the disciplinary case.

Attorney Takes on Divorce Case
While Cox was employed at McCleery Law Firm, he was assigned in November 2017 to represent a woman identified as V.W. in her divorce. V.W. was considered one of the firm’s most important clients.

In her later testimony, V.W. said she and Cox began a consensual sexual relationship the month he started representing her. The relationship lasted a year or more. When V.W. discovered in February 2019 that Cox was still living with his wife, she ended the sexual relationship and his legal representation.

Later that year, V.W. told the firm that she and Cox had been involved in a sexual relationship. After managing attorney Greg McCleery discussed the allegations with Cox, McCleery submitted a grievance to the Office of Disciplinary Counsel, which investigated the matter.

Attorney Denies Texts, Emails, Sexual Relationship with Client
When Cox responded to a letter from the disciplinary counsel, he denied having any sexual relationship with V.W., didn’t address information regarding the text and email messages, and maintained that he had violated no professional conduct rules. At a deposition, he said he didn’t recall sending the text messages to his client, and when asked if it was possible he sent them, he said, “No.” He also denied emailing V.W. from a Gmail address that used his full name. The emails referenced an encounter in V.W.’s garage and that they were missing each other. Later, in testimony before the board panel that heard his disciplinary case, Cox admitted he sent “wildly inappropriate” sexual messages to his client. When presented with Google records that connected his subscriber information and his IP addresses (the numeric designation for a specific computer or device)to the email address, he no longer disputed that the emails were his.

Cellphone records also placed the attorney in the town where V.W.’s home is located on Nov. 2, 2017, and documented a phone call the next evening from his phone while located in that town to his wife. Cox then called V.W. from his home about an hour and a half later. The phone records also show that he was in V.W.’s town on other dates in November 2017 and document a string of sexual text messages.

Professional Conduct Board Finds Three Ethics Violations
The board found that Cox violated three rules governing the conduct of Ohio attorneys – the prohibitions against soliciting or engaging in sexual activity with a client; engaging in dishonesty, deceit, and misrepresentation; and making false statements of material fact during the disciplinary investigation and proceedings.

The disciplinary counsel advocated for a one-year suspension, while Cox requested a public reprimand. The board considered aggravating circumstances that could increase the penalty and mitigating factors that could lead to a lesser sanction in determining the suggested suspension of two years with one year stayed. In its report to the Supreme Court, the board also recommended that the one-year stay be conditioned on Cox completing six hours of continuing legal education (CLE) on appropriate behavior and boundaries with clients in addition to an attorney’s regular CLE requirements, refraining from further misconduct, and paying the costs of the proceedings.

Attorney Acknowledges Only ‘Sexual Banter’
In his brief, Cox states that he engaged in “sexual banter” with V.W. and his actions were “sloppy, stupid, and totally improper.” However, he disputes the allegations that he lied during the disciplinary investigation and proceedings.

He also challenges on several fronts V.W.’s testimony of a physical relationship. Cox notes that in her divorce hearing, V.W. testified that she didn’t have an affair with him. In the disciplinary investigation, she also said there had been a recording of her and Cox from her garage documenting their physical relationship, but it was erased. V.W. stated they had met at a Canton hotel. Cox questions whether a tape ever existed and said GPS tracking shows he was in Canton the day of the alleged hotel encounter coaching his son’s football team, but never was at the hotel. He states that there’s no hair, fiber, DNA, fingerprint, or photo evidence proving that there was a sexual relationship between him and V.W.

Cox maintains he was truthful in November 2020 when he denied ever sexting with V.W. in 2018 and late 2017. He receives 100 or more text messages each week and didn’t recall the sexting, he argues.

He concludes that he has taken full responsibility for engaging in sexual banter with a client, suggesting that a public reprimand, six to 12 hours of extra CLE, and perhaps a period of monitored probation are appropriate sanctions.

Disciplinary Counsel Points to ‘Unrepentant and Calculated Dishonesty,’ Attacks on Client
The disciplinary counsel contends that Cox continues to attack V.W.’s character and to overlook the emails, text messages, and cellphone records – all which back V.W.’s testimony and prove beyond any doubt that they had sex.

The office notes that V.W. said she didn’t have an affair with Cox in her divorce hearing because she felt she had no obligation to her husband at that point. The office states that the board panel looked at all the evidence and determined V.W. was more credible. The disciplinary counsel’s brief adds that McCleery showed Cox text messages before filing the grievance, so Cox was aware of them. Also, Cox’s focus on a lack of forensic evidence, as if this were a homicide investigation, shows deflection from the evidence of his sexual relationship with V.W., the brief maintains.

The disciplinary counsel notes: “[Cox] has continued with his lies and forced V.W. to defend her integrity and testify about intimate details of their physical sexual relationship in a public forum.” The office concludes that “[Cox’s] request for a public reprimand reinforces his refusal to acknowledge the depth of his misconduct and confirms that his unrepentant and calculated dishonesty warrant a harsh sanction to protect the public.”

 Kathleen Maloney

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2021/12/more-than-banter.html

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