The Ohio Supreme Court today suspended a Lima attorney from the practice of law for exchanging sexually oriented text messages with a client.

In a per curiam opinion, the Supreme Court suspended N. Shannon Bartels for one year with six months stayed subject to conditions that include completing continuing professional legal education on proper communications and interactions with clients, and serving a year of monitored probation upon her reinstatement.

The Court publicly reprimanded Bartels in 2010 for engaging in a sexual relationship with a client. In 2014, the Office of Disciplinary Counsel charged Bartels with violating the rule prohibiting a lawyer from soliciting or engaging in sexual activity with a client, unless a consensual sexual relationship existed before the client-lawyer relationship.

Bartels Represented Client in Divorce Case
Bartels was retained by Troy Bailey to represent him in his divorce. About four months before the divorce was finalized, Bartels and Bailey began exchanging multiple text messages that were sexually oriented. The text exchanges lasted for about a month and were mutual and reciprocal in their sexual content.

About a month after the texting stopped, Bartels received a text from Bailey’s cell phone number containing a veiled threat that if the results of his divorce proceedings were not satisfactory, the sexually oriented texts as well as nude photographs that Bartels had exchanged with Bailey would be sent to disciplinary authorities. In a subsequent telephone call between Bartels and Bailey, a woman later identified as Bailey’s girlfriend joined the conversation and told Bartels that she “had better get Bailey everything he wanted” from the divorce proceeding and that Bartels needed to bring $3,000 to a hearing scheduled six days later.

At the hearing there was no mention of the threat and no payment was made. Several months later, Bartels received another text message from Bailey’s cell number stating the Ohio State Bar Association and the Better Business Bureau would be contacted if Bartels did not refund at least $2,500 to Bailey. Bartels then reported the incident to the Allen County Sheriff’s Office, and gave the office a statement. Bailey, and his girlfriend, who sent the extortionate text messages from Bailey’s cell phone, were indicted and convicted of obstructing justice.

Disciplinary Charges Followed Texting Incident
Based on the incident, the disciplinary counsel filed the complaint against Bartels with the Board of Professional Conduct. Bartels and the disciplinary counsel stipulated that Bartels had violated the provision and agreed that a one-year stayed suspension was the appropriate sanction. A board panel considering the matter recommended the stayed suspension subject to conditions; however, the full board recommended a one-year suspension, with six months stayed on conditions.

Bartels and the disciplinary counsel objected to the board’s recommendation. The parties noted the conduct was mutual and consensual, Bartels did not have sexual relations with her client, and the exchanges did not impair her ability to effectively advocate on behalf of her client. They also contended her conduct was not at the same level as that of another case in which a lawyer received a one-year suspension with six months stayed for sending explicit text messages to a law-student employee and demanding sexual favors as a condition of her employment.

Court Adopts Board Recommendation
The Court stated it agreed with the board’s recommendation. The Court wrote that when considering imposing sanctions, it considers several factors including the ethical duties the lawyer violated and sanctions imposed in similar cases. The Court also considered aggravating factors, including Bartels’s record for a prior violation of the same rule, which resulted in a public reprimand, and mitigating factors including that she fully cooperated in the disciplinary process and submitted evidence of good character.

The Court emphasized that “the burden is on the lawyer to ensure that all attorney-client dealings remain on a professional level.” It further noted, “Because this is Bartels’s second disciplinary action within five years for a violation of the same rule and her responses to questions at the hearing indicate a lack of awareness of the nature of her wrongdoing, we conclude that the board’s recommended sanction is the more appropriate option.”

In addition to the continuing legal education and monitored probation conditions, the Court stated that for Bartels to be considered for reinstatement, she must also not commit any further misconduct and must pay the costs of the disciplinary proceedings.

Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer, Terrence O’Donnell, Judith Ann Lanzinger, and William M. O’Neill joined the majority opinion.

Justices Sharon L. Kennedy and Judith L. French dissented, stating they would impose a one-year, fully stayed suspension.

2015-1638. Disciplinary Counsel v. Bartels, Slip Opinion No. 2016-Ohio-3333.

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