A former candidate for Hocking County prosecuting attorney who had sex with a court-appointed client, trespassed onto his neighbor’s property to use a hot tub, and lied about his actions to the presiding judge has been suspended by the Ohio Supreme Court for two years with 18 months stayed.

A divided Supreme Court suspended Jason A. Sarver of Rockbridge for violating multiple rules governing the conduct of Ohio attorneys. While the Board of Professional Conduct had recommended a fully stayed suspension, the Court found actual time out from the profession was warranted.

“The abuse of the attorney-client relationship not only harms the dignity of the client, whose body and trust in her lawyer have been violated, but it also impugns the legal system as a whole,” stated Justice Sharon L. Kennedy, writing for the Court majority.

Justices Terrence O’Donnell, Judith L. French, and R. Patrick DeWine joined Justice Kennedy’s opinion.

In a concurring opinion and dissenting opinion, Justice Patrick F. Fischer stated that he agreed with the Court majority’s analysis of the case, but he believed a two-year suspension with one year stayed was appropriate. Chief Justice Maureen O’Connor and Justice Mary DeGenaro joined his opinion.

Attorney Begins, Covers Up Relationship with Client
In 2015, a woman identified in court documents as J.B. contacted Sarver when she faced felony criminal charges. The two agreed to meet at a Columbus restaurant where they discussed J.B.’s criminal case over drinks and then had sex in Sarver’s vehicle in the parking lot.

J.B. was charged with theft in Hocking County Municipal Court, and Sarver suggested J.B. turn off the Global Positioning System (GPS) on her cell phone to block law enforcement from tracking her. She was indicted by a grand jury several days later. But because of Sarver’s advice to turn off the GPS, she avoided arrest for almost a month.

The judge presiding over J.B.’s arraignment appointed Sarver to represent her as an indigent client. While acting as her court-appointed lawyer, the two had sex at least seven more times in four months, and they trespassed to use Sarver’s neighbor’s hot tub.

Lawyer Seeks Office
While representing J.B., Sarver filed a petition to run for Hocking County prosecuting attorney, and the rumors of his relationship with J.B. spread. The presiding judge in J.B.’s case questioned Sarver twice about the rumors, which Sarver denied.

The Hocking County Sheriff’s Office began investigating Sarver, and detectives promised J.B. a reduced sentence if she disclosed the true nature of her relationship with Sarver. She told detectives that Sarver “insinuated” he would help with her case in exchange for “sexual favors.” She told them she had a problem saying no to the offer and that she felt “kinda forced into it” because she was facing seven felony counts.

Criminal Charges Ensue
Sarver was charged with two counts of sexual battery for knowingly coercing another person to engage in sexual conduct and with several other offenses. Through a plea agreement, the sexual battery charges were dismissed, and Sarver pleaded guilty to three misdemeanor counts. He also agreed to withdraw as a candidate for prosecutor.

The Office of Disciplinary Counsel filed a complaint with the professional conduct board alleging that Sarver violated four ethical rules, including having an improper sexual relationship with a client and engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. The parties initially agreed to a sanction that would have given Sarver a fully stayed two-year suspension if he did not engage in further misconduct.

Court Rejects Proposed Sanction
The board recommended the agreed-upon sanction to the Ohio Supreme Court, which rejected it and remanded the case to the board for further proceedings. After a hearing before a board panel, the panel recommended the fully stayed suspension with multiple conditions.

Before the board recommends a sanction to the Court, it considers aggravating circumstances that could increase the penalty it imposes and mitigating factors that could lead to a lesser sanction.

The board emphasized that “compelling” mitigating factors warranted a two-year, fully stayed suspension: “the client leveraged her relationship with Sarver to get a better plea deal by agreeing to testify against him”; he received a “very public reprimand of sorts from the local media”; he was “over-indicted with 14 felonies and four misdemeanors”; he spent two nights in jail; and he was forced to withdraw his candidacy.

The board concluded the factors were significant because they stemmed from a consensual relationship with the client, and it adopted the panel’s proposed sanction and recommended it to the Court.

Court Rejects Board’s Recommendation
Justice Kennedy wrote that in the absence of a pre-existing, consensual sexual relationship, seeking or having sex with a client is a per se violation of Prof.Cond.R. 1.8(j). The fact a client appears to consent is not a defense to a lawyer’s violation of the rule, and the rule does not permit consent to be a mitigating factor that leads to a less-severe sanction. She noted that the Court in several cases has imposed actual suspensions for attorneys who took advantage of their clients’ vulnerable circumstances for the lawyers’ own sexual gratification.

While the board characterized the relationship as consensual, the majority opinion stated that the board “seems oblivious” to a number of facts, including that J.B. was an indigent, criminal client relying on the ability of her court-appointed attorney in a crisis situation, which put Sarver in a position to dominate and take unfair advantage of the attorney-client relationship.

“Reported cases are filled with clients who have said that they submitted to their attorney’s sexual advances out of fear that refusing to submit would affect the quality of their representation at a time of vulnerability and dependence on the attorney,” the opinion stated. “And in keeping with the aspiration expressed in A Lawyer’s Creed ‘to make the law and our legal system available to all,’ courts have the obligation to ensure that the lawyers appointed to represent indigent criminal defendants . . . abide by their professional duty not to initiate a sexual relationship with a vulnerable client whose liberty and right to due process is at stake.”

The Court suspended Sarver’s license for two years. But contrary to the board’s recommendation, the Court ordered Saver to serve an actual suspension of six months and stayed the remaining 18 months with conditions that he comply with his Ohio Lawyers Assistance Program contract, pass the Multistate Professional Responsibility Exam, complete an additional 12 hours of continuing legal education focused on professional ethics or attorney-client relationships, serve two years of monitored probation, and commit no further misconduct.

Concurring and Dissenting Opinion Admonishes Attorney
In his concurring and dissenting opinion, Justice Fischer agreed with the majority opinion that J.B.’s consent to the sexual relationship with Sarver did not provide him with an excuse or a defense.

Justice Fischer questioned whether J.B. could have even given “adequate, informed consent” because of the inherent power imbalance between Sarver and J.B. He also noted that Sarver lied repeatedly to the court about his relationship and engaged in “abhorrent behavior, boorish selfishness, and complete disregard for the legal profession.”

While advocating for a longer actual suspension for Sarver, Justice Fischer praised the board’s newly recommended conditions, specifically “probation,” attached to Sarver’s suspension as they will help protect the public.

2017-1081. Disciplinary Counsel v. Sarver, Slip Opinion No. 2018-Ohio-4717.

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