Friday, July 04, 2014

“Operating a Cellphone When Under the Influence”

After a Panel of the Ohio Board of Commissioners on Grievances and Discipline (“the Board”) found John Daniel Mismas “had engaged in conduct that adversely reflected on his fitness to practice law” and recommended that he “be publicly reprimanded for this conduct”, the Board adopted the Panel’s recommendation. Lake County Bar Association v. Mismas, 2014 WL 2609847 (2014).  
The matter then went to the Supreme Court of Ohio.  Lake County Bar Association v. Mismas, supra.  (The flowchart you can find here tracks the process from filing a  complaint against an Ohio attorney through review by the Supreme Court.)
The panel’s hearing and the subsequent proceedings were all conducted pursuant to the Rules of Professional Conduct with which Ohio lawyers must comply.  Lake County Bar Association v. Mismas, supra.  The rule at issue here was Rule 8.4(h), which says it “is professional misconduct for a lawyer” to “engage in . . . conduct that adversely reflects on the lawyer’s fitness to practice law.”  Lake County Bar Association v. Mismas, supra.
The Supreme Court began its analysis of the Panel’s findings and recommended sanction by explaining that in November of 2011, Mismas contacted
Professor J. Dean Carro at the University of Akron School of Law, seeking to hire a student law clerk. Three students responded to his posting. He contacted Ms. C, a female student at the school and scheduled a face-to-face interview for December 9, 2011. From the evening of the interview through December 28, 2011, Mismas and Ms. C exchanged numerous text messages.

The board found that some of the text messages Mismas sent Ms. C on December 9 and 10 were sexually explicit and inappropriate. Notwithstanding the inappropriate content of those messages, Ms. C accepted employment with Mismas's firm on December 11, 2011. On December 22, 2011, Mismas sent Ms. C a text inviting her to travel with him to Washington, D.C. on business. After she informed him she had a prior commitment and would not travel with him, Mismas sent her a text stating, `That's strike 1 for you. 3 strikes and you are out.’ Ms. C resigned her employment the next day.

In January 2012, Professor Carro asked Ms. C about her employment with Mismas and learned of her resignation. When the professor asked for additional information, Ms. C [said] Mismas had acted inappropriately toward her and that she felt uncomfortable continuing in his employ. Shortly thereafter, Professor Carro filed a grievance with relator.
Lake County Bar Association v. Mismas, supra.
The Supreme Court noted that although the “parties stipulated, and the panel and board found, that Mismas's conduct toward Ms. C violated [Rule] 8.4(h),” in order to
fully recognize the gravity of the misconduct in this case, . . . is necessary to consider the content of the text messages that Mismas sent to this third-year law student who sought employment as a law clerk in his firm -- facts that the parties do not set forth in their stipulations and neither the panel nor the board set forth in its report. Although the conversation began with a general discussion of Ms. C's commitment to Mismas's primary area of practice -- asbestos litigation -- and the psychological toll that the clients' circumstances can have on those who assist them, it soon took an inappropriate turn.
Lake County Bar Association v. Mismas, supra.
It also noted that Mismas told Ms. C she would
`need to take a few beatings’ before she could learn to give one. He rephrased this statement in sexual terms and then asked Ms. C if she had ever engaged in the type of sex act he had referred to. Ms. C told him to stop, stating that they were only speaking metaphorically, but Mismas insisted he was serious. Ms. C advised him that his question was inappropriate and she would not answer it. Mismas told her there needed to be some level of trust between them saying, `[I]f you can't trust me with personal issues then that's a problem.’ When she continued to refuse to answer, he texted, `Just was checking how offended you would get. This job is not for the weak.’ He indicated that honesty and loyalty were important qualities to him.

A little before midnight, Mismas began to quiz Ms. C about an arbitration agreement he had given her to review. The conversation then turned to how Mismas could ensure Ms. C would be loyal to him. He told her, `I have an idea but your [sic] not going to like it,’ and stated she would `bolt’ if he said it. After she [said] he had already taken the conversation pretty far and she had not bolted, he suggested she perform a sex act for him. Ms. C flatly rejected Mismas's suggestion, but he continued to press the issue.

When she told him to stop and urged him to admit he was joking, he repeatedly refused and insisted that her employment depended on her compliance, telling her, `If you show up at 11 you know what's expected.’ He further stated, `So its your choice. Ok. I'll be there at 11. If you show up great. You know what you gptt. GoTta do [sic]. If not Good luck to you.’ At approximately 1:30 a.m., Ms. C gave Mismas one last chance to say he had just been messing around, but he replied, `Nope. Not kidding.’

At 9:56 that morning, Mismas sent Ms. C another text, suddenly proclaiming that their prior exchange had been a joke after all. When Ms. C expressed her doubts, he apologized and told her it would not happen again. But at the panel hearing, Ms. C testified that she had believed, and continued to believe, that he was serious about his proposition.
Lake County Bar Association v. Mismas, supra.
The next week, Mismas suggested
Ms. C join him at his next out-of-town deposition. And just one week after making that suggestion, he invited her to join him on an overnight trip to Washington, D.C. When Ms. C demurred, stating she had already accepted an invitation to a judicial function, Mismas belittled her for her rejection and pressured her to go by suggesting her refusal would have adverse consequences on her employment, texting her, `That's strike 1 for you. 3 strikes and you are out’. The following day, Ms. C resigned her employment.
Lake County Bar Association v. Mismas, supra.
The Supreme Court then explained that in
imposing sanctions for attorney misconduct, we consider relevant factors, including the ethical duties the lawyer violated and the sanctions imposed in similar cases. . . . [W]e also weigh evidence of the aggravating and mitigating factors listed in the Board of Commissioners on Grievances and Discipline Rules and Regulations Governing Procedures on Complaints and Hearings  (“Rules and Regulations”)] 10(B).
Lake County Bar Association v. Mismas, supra.
As to mitigating factors, the Supreme Court explained that the parties stipulated and the
panel found that six of the mitigating factors set forth in [Rules and Regulations] 10(B)(2) were present, including (a) the absence of a prior disciplinary record, (b) the absence of a selfish or dishonest motive, (c) Mismas's timely good-faith effort to rectify the consequences of his misconduct, (d) his full and free disclosure to the board and cooperative attitude toward the proceedings, (e) his good character and reputation apart from the conduct at issue in this case, as demonstrated by the testimony of three character witnesses and 19 character letters from attorneys, paralegals, court reporters, clients, a judge, and others who know him, and (g) his alcohol dependency.

Mismas testified that in February 2012, he realized he was an alcoholic. He argued that the inappropriate text messages he sent to Ms. C were meant in jest. He claimed he had been drinking heavily at the time he sent the sexually explicit texts and had no memory of actually sending them. Viewing the texts in retrospect, he said he was embarrassed by his conduct and referred to it as `disgusting and grotesque.’ The panel and board found he had shown genuine remorse for his actions and appeared to be taking all necessary steps to avoid engaging in similar misconduct in the future.

Marilyn Wise, a licensed independent chemical-dependency counselor, testified that Mismas began treatment with her in March 2012. She [said] he had successfully completed an approved treatment program, continued to attend Alcoholics Anonymous meetings regularly, and remained in counseling with her. Although his chemical dependency contributed to his misconduct, she believes he has `an excellent prognosis of continued sobriety and healthy mental status and should continue unimpeded, the work of the exceptional attorney that he is.’ Therefore, the panel and board found that Mismas's alcohol dependency qualified as a mitigating factor pursuant to [Rules and Regulations] 10(B)(2)(g).
Lake County Bar Association v. Mismas, supra.
The court also noted that the “only aggravating factor found by the panel” was the  “vulnerability of and resulting harm to the victim”.  Lake County Bar Association v. Mismas, supra. It also noted that the Board “rejected the panel's finding that the absence of a dishonest or selfish motive was a mitigating factor and instead found Mismas had acted with a dishonest or selfish motive that qualified as an additional aggravating factor” under [Rules and Regulations] 10(B)(1)(b).  Lake County Bar Association v. Mismas, supra.
The Supreme Court conceded that here, unlike other cases it had heard, the lawyer did not “direct his inappropriate sexual overtures toward a vulnerable client”, but Mismas did “engage in undignified and unprofessional conduct by targeting an aspirant to the profession for sexual harassment.” Lake County Bar Association v. Mismas, supra. The court explained that
[l]egal clerkships play an important role in developing the practical skills necessary for law students to become competent, ethical, and productive members of the legal profession. Often, the skills, professional relationships, and reputations that students develop in these entry-level positions open the doors to their first full-time legal employment once they graduate and pass the bar exam.

These first jobs can set the course for a new attorney's entire legal career. Attorneys who hire law students serve not only as employers but also as teachers, mentors, and role models for the next generation of our esteemed profession. To that end, we expect attorneys will conduct themselves with a level of dignity and decorum befitting these professional relationships.
Lake County Bar Association v. Mismas, supra.
The Supreme Court also explained that
[u]nwelcome sexual advances are unacceptable in the context of any employment, but they are particularly egregious when they are made by attorneys with the power to hire, supervise, and fire the recipient of those advances. Here, Mismas not only suggested Ms. C perform sexual favors for him, he also indicated that her continued employment depended on her compliance with his demands and repeatedly insisted he was not joking. And even after being rebuffed, he continued to exert his leverage over Ms. C. by pressuring her to travel out of state -- and away from her support system -- with him.

When an attorney engages in sexually inappropriate conduct of this nature, it causes harm not only to the individual to whom the conduct is directed but also to the dignity and reputation of the profession as a whole. Thus, we conclude Mismas's conduct is more serious than `simply operating a cellphone when under the influence,’ as his counsel suggests, or sending sexually explicit and inappropriate text messages, as the board found.
Lake County Bar Association v. Mismas, supra.
The Supreme Court also rejected
the parties' stipulation and the board's finding that Mismas made a timely good-faith effort to rectify the consequences of his misconduct. [Rules and Regulations] 10(B)(2)(c) provides that a respondent's `timely good faith effort to make restitution or rectify consequences of misconduct’ may be considered in favor of recommending a less severe sanction. While the record contains substantial evidence of the efforts Mismas has taken to rectify his alcoholism, his alcohol dependency is a contributing cause rather than the consequence of his misconduct.

And here, the only evidence that Mismas's efforts to rectify the consequences of his actions toward Ms. C consists of several texts that he sent to her following his request for sexual favors—one stating that he was kidding, several others stating that he was sorry and that the conduct would not happen again, and another acknowledging that his conduct was unprofessional.
Lake County Bar Association v. Mismas, supra (emphasis in the original).
Finally, it noted that Ms. C testified that when she
resigned her employment, Mismas became hostile, put her down for being naïve, and threatened to contact her professors to tell them what a stupid decision she had made. His brief apology to her at the panel hearing and his efforts to have her testimony placed under seal to protect her from future harm, although appropriate, do little to meliorate Ms. C's anxiety, embarrassment, frustration, disappointment, and fear of harm to her professional reputation.
Lake County Bar Association v. Mismas, supra.
The Supreme Court therefore found that,
[b]ased on the foregoing, we conclude that more than a public reprimand is necessary to protect the public from future misconduct. Accordingly, John Daniel Mismas is suspended from the practice of law in Ohio for one year, with the last six months stayed on the conditions that he engage in no further misconduct and continue to comply with all recommendations of his treating medical and psychological professionals.

Costs are taxed to Mismas.
Lake County Bar Association v. Mismas, supra.

If you are interested, you can read more about the case, and see photos of Mismas, in the news stories you can find here and here.

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