A former assistant U.S. attorney received a two-year, fully stayed suspension from the Supreme Court of Ohio today for sexually harassing a former intern for the northern Ohio district office.

In a 4-2 decision, the Supreme Court suspended Mark S. Bennett of Westlake from the practice of law. The suspension was stayed with conditions, which include that he continues to receive mental health counseling and not commit further professional misconduct. Bennett resigned from the U.S. Attorney’s Office in 2020 after an investigation found he violated the Department of Justice’s sexual harassment policy.

In a per curiam opinion, the Court found that Bennett engaged in conduct that adversely reflected on his fitness to practice law.

Justices Patrick F. Fischer, R. Patrick DeWine, Michael P. Donnelly, and Melody Stewart joined the per curiam opinion.

In a separate opinion, Chief Justice Sharon L. Kennedy stated that she would impose a one-year suspension with six months stayed on conditions similar to those set by the majority. She also suggested that Bennett complete six hours of continuing legal education on sexual harassment. As a representative of the U.S. government, Bennett demeaned both the legal profession and his government office by his actions, the chief justice wrote.

Justice Joseph T. Deters joined the chief justice’s opinion. Justice Jennifer Brunner did not participate in the case.

Attorney Investigated for Harassing Intern
In May 2017, a woman identified in court records as “J.S.” was 24 years old. She had finished her first year of law school and began an internship with the U.S. Attorney’s Office for the Northern District of Ohio. J.S. spent time working in the U.S. attorney’s three district offices in Cleveland, Akron, and Youngstown.

Bennett had worked for the U.S. attorney for 10 years when he met J.S. In 2017, J.S. believed that on various occasions, Bennett was attempting to look up her skirt, and she also heard from a male intern that Bennett made sexually inappropriate comments about her. Bennett then began to ask J.S. about her sex life and asked her to send him nude photos of herself through a social media platform. At one point, when the two were in the Akron office library, J.S. stated that Bennett reached across her to obtain a book and intentionally touched her breasts while doing so.

Bennett began communicating with J.S. via Snapchat, Facebook, and text messaging until J.S. blocked his attempts.

J.S. left the office in the fall of 2017 and returned as an intern in August 2018. She asked to be assigned primarily to the Youngstown office to avoid Bennett, who worked mostly in Cleveland and Akron. When working in the Akron office, she attempted to work in areas where Bennett would not see her. In January 2019, Bennett began texting J.S. again, discussing her relationship with her boyfriend.

Despite her attempts to avoid Bennett, J.S. asked Bennett if he would provide a letter of recommendation in support of her application for a clerkship following her graduation from law school. Bennett responded to her request by asking what he would receive in exchange for the recommendation. J.S. abandoned her request and obtained recommendations from other attorneys.

Later, in 2019, Bennett continued to send unwelcomed messages to J.S. The intern then informed a colleague in the office about the interactions with Bennett. The Justice Department’s inspector general’s office launched an investigation.

J.S. told the inspector general she did not report Bennett’s conduct because it could hurt her career. She admitted she had a flirtatious personality and had joked with Bennett in their early interactions about being his mistress. Still, she did not believe she misled him into believing she was interested in a sexual relationship or that she was receptive to his sexual comments.

Bennett told the inspector general that he was unaware that J.S. was uncomfortable with his conduct. The inspector general concluded that Bennett violated the department’s sexual harassment policy and recommended he be fired. Bennett resigned instead.

The Office of the Disciplinary Counsel filed an ethics complaint against Bennett in August 2022 based on the incident. The Board of Professional Conduct found Bennett committed misconduct and recommended that the Supreme Court suspend him for six months with no stay.

Bennett objected to the sanctions, which triggered an oral argument before the Supreme Court.

Supreme Court Examined Past Cases to Establish Sanction
Bennett objected to the proposed actual suspension from practicing law. He argued that the board recommended the sanction based on cases where disciplined attorneys committed similar misconduct but with their clients. Bennett argued that attorneys charged with sexual misconduct with their own staffs and colleagues did not receive actual suspensions.

The Court noted there are differences between an attorney’s inappropriate sexual communication and conduct involving workplace colleagues and similar improper conduct involving clients. While there is a specific professional conduct rule prohibiting solicitation of a sexual relationship with a client, the Court noted there is no particular rule barring attorneys from soliciting a sexual relationship with colleagues in the workplace.

However, the opinion stated it is appropriate for the Court to consider sanctions for attorneys found to have acted sexually inappropriate with clients when fashioning a sanction for Bennett.

The Court found few cases comparable to Bennett’s that involved incidents of both verbal harassment and inappropriate physical contact. The opinion also noted that based on the board hearing and the inspector general’s investigation, Bennett may have acted sexually inappropriate with another colleague in the U.S. Attorney’s Office. Those acts were not part of the disciplinary counsel’s complaint against Bennett.

The Court credited Bennett for reporting his misconduct to the disciplinary counsel after the inspector general’s report was complete. He also sought mental health counseling to understand his behavior and learn to conduct himself appropriately, the opinion noted. The Court imposed the two-year stayed sentence with the conditions that he does not commit further misconduct and continues his current mental health counseling. If he completes counseling before fully serving his suspension, Bennett must contract with the Ohio Lawyers Assistance Program and comply with any recommendations made by the program. If he fails to comply with the conditions, the stay will be lifted, and he will be required to serve the full two-year suspension.

The Court majority stated that this “sanction will provide a strong incentive for Bennett to comply with his treatment program and to conform his conduct to the requirements of the profession.” Bennett must also pay the costs of the disciplinary proceedings.

Actual Suspension Warranted, Concurring and Dissenting Opinion Stated
In her opinion concurring in part and dissenting in part, Chief Justice Kennedy wrote that Bennett exhibited “continual selfish conduct over the course of two years” and acted “without consideration of the harm he was causing J.S., his employer, or the profession.”

“The extent of the vulnerability and resulting harm to J.S. also cannot be overstated. As a female intern and aspiring professional, J.S. was at risk of being taken advantage of, and that is what Bennett did,” the chief justice stated.

The concurring and dissenting opinion maintained that Bennett should receive an actual suspension from the practice of law. The opinion highlighted the vulnerability of student interns and the fear of consequences they might face for reporting sexual misconduct by those overseeing their work.

Chief Justice Kennedy also wrote that Bennett violated his oath as an Ohio attorney to conduct himself with dignity and civility and to treat others with respect. She noted that, as a federal prosecutor, he was invested with the public trust and that his decisions had to be in the best interests of the American people.

“Bennett’s actions tainted the public trust,” she wrote. “His conduct toward J.S. undermined the credibility of and public faith in government, impeded the common good, and were not in the best interests of the American people, especially J.S.”

2023-0471. Disciplinary Counsel v. Bennett, Slip Opinion No. 2023-Ohio-4752.

View oral argument video of this case.

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