A Strong Message Or A Return To Days Gone By?

The Ohio Supreme Court has imposed a conditionally-stayed one-year suspension for sex with a client while representing her and her spouse

There can be no doubt that Nowicki engaged in serious misconduct in this case. He commenced an inappropriate sexual relationship with Clark while he represented her and her (by then estranged) husband in a civil matter. And it appears that that inappropriate sexual relationship was a contributing factor in the husband’s misdemeanor convictions for telephone harassment and violation of a protection order. When Nowicki finally sought to withdraw from representing Clark’s husband, he cited the husband’s alleged criminal conduct as the basis for his withdrawal without disclosing his own inappropriate sexual relationship with Clark. Rather than seeking to withdraw as Clark’s counsel, Nowicki undertook additional representation of her by filing her complaint for divorce—despite the substantial risk that his personal interests would materially limit his ability to properly represent her and the inherent (albeit uncharged) conflict in representing one client against another. Nowicki could have avoided these ethical dilemmas by withdrawing from his representation of both Clark and her husband before commencing his sexual relationship with Clark.

“We have consistently disapproved of lawyers engaging in sexual conduct with clients where the sexual relationship arises from and occurs during the attorney-client relationship.” Cleveland Bar Assn. v. Kodish, 110 Ohio St.3d 162, 2006-Ohio-4090, 852 N.E.2d 160, ¶ 66. We have recognized that the attorney-client relationship is inherently unequal in that the client’s reliance on the ability of counsel in a crisis situation has the effect of putting the attorney in a position of dominance and the client in a position of dependence and vulnerability. Disciplinary Counsel v. Booher, 75 Ohio St.3d 509, 510, 664 N.E.2d 522 (1996). And we have emphasized that “[t]he more vulnerable the client, the heavier is the obligation upon the attorney not to exploit the situation for his own advantage.” Id.

A strong message

having considered Nowicki’s misconduct, the aggravating and mitigating factors, and the sanctions imposed in comparable cases, we find that it is highly unlikely that Nowicki will engage in similar acts of misconduct going forward. Consequently, we hold that a one-year suspension, stayed in its entirety on the conditions recommended by the board, strikes the proper balance between sending a strong message that misconduct like Nowicki’s will not be tolerated and adequately protecting the public from future harm.

KENNEDY, C.J., concurring in part and dissenting in part

Respondent, Griff Makini Nowicki, engaged in a sexual relationship with his client while the client was married to another client and he represented them and their child in a civil case. Addressing that misconduct, the Board of Professional Conduct found two aggravating factors—Nowicki had prior discipline, see Gov.Bar R. V(13)(B)(1), and acted with a dishonest or selfish motive, see Gov.Bar R. V(13)(B)(2). Today, this court should impose on Nowicki an actual suspension from the practice of law. Instead, the majority ignores our precedent.

The rest of the story per Justice Kennedy

In 2018, Nowicki’s law firm hired Sondra Clark as an assistant. Soon thereafter, Nowicki offered to represent Sondra, her husband, and their son in a civil matter for free. As their attorney, Nowicki filed an answer on their behalf in the civil case.

In April 2019, while Nowicki was still representing the Clarks in the civil matter, he began a sexual relationship with Sondra. Soon thereafter, Sondra’s husband learned of the relationship, and in late June, he was charged with telephone harassment of Sondra and Nowicki. In July, Sondra’s husband was charged with violating a protection order, which stemmed from the harassment. During this time, Nowicki continued to represent the Clarks in the civil matter.

A couple weeks later, Nowicki filed a motion to withdraw as counsel for Sondra’s husband in the civil matter. Nowicki’s motion indicated that he was withdrawing because he and Sondra were the victims in the husband’s telephone harassment case. Nowicki never disclosed to the trial court that he was in a sexual relationship with Sondra. The day after Nowicki filed the motion to withdraw, while still representing the Clarks in the civil case, Nowicki filed on Sondra’s behalf a complaint for divorce against her husband. A week later, the court granted Nowicki’s motion to withdraw as the husband’s counsel. The Clarks’ divorce was finalized a couple months later. Nowicki and Sondra married in 2020.

Sanction per Justice Kennedy

Contrary to the majority’s assertion, a fully stayed suspension here does not send a “strong message” to attorneys across Ohio. Majority opinion at ¶ 31. The imposition of a fully stayed suspension here, given the facts of this case and Nowicki’s pathetic excuses, signals that the majority is returning to days gone by—when an attorney’s engaging in a sexual relationship with a client is tolerable and the sanction for a violation of Prof.Cond.R. 1.8(j) is a slap on the wrist.

Moreover, the majority’s additional justification for not following our precedent and not imposing an actual suspension—that it is “highly unlikely” that Nowicki will engage in similar acts of misconduct in the future, majority opinion at ¶ 31—is not supported by any evidence in the record or Nowicki’s past behavior. This bald assertion, which the majority fails to support with any concrete reasoning aside from its purported consideration of “Nowicki’s misconduct, the aggravating and mitigating factors, and the sanctions imposed in comparable cases,” id. at ¶ 31, is unjustified. The majority’s decision will allow Nowicki to have access to clients and all of the public, and any continued bad behavior or lack of sound judgment by him will affect the public and compromise the integrity of the entire Ohio legal system.

There is no justification in the record for departing from our caselaw holding that an actual suspension from the practice of law is warranted in this case. The similarity of the facts in this case to those in Owen, 142 Ohio St.3d 323, 2014Ohio-4597, 30 N.E.3d 910, and Leon, 155 Ohio St.3d 582, 2018-Ohio-5090, 122 N.E.3d 1242, the additional misconduct in this case for violating Prof.Cond.R. 1.7(a)(2), the aggravating factors, and the absence of additional mitigating factors, support the imposition of an actual suspension from the practice of law. For these reasons, I would impose the board’s recommended sanction and suspend Nowicki from the practice of law for one year, with six months stayed on the conditions that he commit no further misconduct and that his reinstatement be conditioned on his completion of three hours of CLE focused on professional conduct, in addition to the requirements of Gov.Bar R. X.

(Mike Frisch)