[Cite as Akron Bar Assn. v. Miller, 130 Ohio St.3d 1, 2011-Ohio-4412.] 

AKRON BAR ASSOCIATION v. MILLER. 

[Cite as Akron Bar Assn. v. Miller, 130 Ohio St.3d 1, 2011-Ohio-4412.] 

Attorneys—Misconduct—Sexual remarks to client—Prof.Cond.R. 8.4(h)—

Conduct adversely reflecting on fitness to practice law—Six-month 

suspension, all stayed, on conditions. 

(No. 2011-0694—Submitted June 21, 2011—Decided September 7, 2011.) 

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and 

Discipline of the Supreme Court, No. 10-073. 

__________________ 

Per Curiam. 

{¶ 1} Relator, Akron Bar Association, filed a complaint against E. Earl 

Miller, Attorney Registration No. 0077426, for violating the Rules of Professional 

Conduct, specifically Prof.Cond.R. 8.4(h) (forbidding conduct that adversely 

reflects on the lawyer’s fitness to practice law). The complaint arose from a 

grievance filed by a client of Miller’s who had recorded a telephone conversation 

in which the respondent made inappropriate and unprofessional statements of a 

sexual nature to the client. The parties stipulated to the facts and to a sanction of 

public reprimand. A panel appointed pursuant to Gov.Bar R. V(6)(D)(3) 

conducted a hearing on February 15, 2011, at which an employee of the bar 

association, the respondent, the grievant, and a therapist who is treating the 

respondent testified. Based on the stipulations, the testimony, and the exhibits 

(including the tape of the telephone call at issue), the panel recommended a sixmonth suspension, stayed, and one year of probation as a sanction for the 

respondent. The Board of Commissioners on Grievances and Discipline reviewed 

the panel’s recommendation and adopted the recommended sanction. We concur. 

 
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Factual Background 

{¶ 2} The facts in this case have been stipulated by the parties and formed 

the subject of testimony at the hearing. 

{¶ 3} On November 23, 2009, respondent was appointed by the Summit 

County Court of Common Pleas, Domestic Relations Division, to represent the 

client in defending against a show-cause order. The show-cause order required 

the client to show why she should not be held in contempt for failing to make 

court-ordered child-support payments. Respondent had no previous acquaintance 

with the client before his appointment as her attorney. 

{¶ 4} Respondent met with the client at his office twice, first on December 

10, 2009, and next on January 15, 2010. In a telephone conference on January 21, 

2010, the client informed respondent that she had obtained a new job, an event 

that would be significant in the show-cause proceedings. On January 29, 2010, 

respondent filed a motion for continuance of a hearing in the show-cause case on 

the grounds that the need to appear in court on February 9 might jeopardize the 

client’s new employment. 

{¶ 5} Sometime prior to February 2, 2010, the respondent and the client 

agreed that the best time for respondent to contact the client by telephone would 

be in the early morning when she was arriving home from work. On February 2, 

respondent called the client at about 6:15 a.m. Based on an earlier suggestion 

made by respondent about taping conversations, the client began recording the 

call partway through because she felt uncomfortable about the time respondent 

was calling and the fact that he was talking about matters other than the case. A 

copy of the recorded conversation on tape was offered as an exhibit at the hearing, 

and the parties stipulated to its authenticity. 

{¶ 6} During the recorded portion of the call, which lasted approximately 

four minutes, respondent asked the client about her breast size, and he stated that 

she should show him her breasts as a reward, given that he was performing a great 
January Term, 2011 

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deal of work for her for little compensation. Respondent further suggested that 

the client perform oral sex on him. Toward the end of the call, respondent 

returned the discussion to matters legitimately related to the legal representation. 

{¶ 7} At no time did the respondent engage in any physical sexual activity 

with the client. 

Disciplinary Proceedings 

{¶ 8} The client submitted her grievance to the Akron Bar Association in 

early March 2010. On March 26, 2010, respondent moved to withdraw as counsel 

for his client in the contempt case, and the domestic relations court granted the 

motion on April 2, 2010. 

{¶ 9} The Akron Bar Association filed its complaint against respondent 

with the Board of Commissioners on Grievances and Discipline on August 16, 

2010, and the case went to hearing before the panel on February 15, 2011. The 

case was submitted on stipulations, exhibits, and the testimony of four witnesses. 

{¶ 10} An Akron Bar Association employee described the process by 

which the recording of respondent’s conversation on the client’s cell phone was 

re-recorded onto audiotape. Thereafter, the employee prepared a written 

transcription of the conversation. 

{¶ 11} The client testified that she was surprised by the early call on 

February 2, 2010, and that she began to record it because the respondent told her 

he was just getting out of bed, which made her uncomfortable, and because he 

was not discussing her case. She testified that receiving the call was “like being 

raped without being touched” and that she felt as though she were reduced to 

mere property. 

{¶ 12} The respondent testified that in defending the client against childsupport contempt, he urged her both to stay out of prison and get a job, and he 

gave her some leads for jobs. His representation drew him into other cases in 

which the client was a party. Respondent tried to get the client’s driver’s license 
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restored, which would enhance her ability to hold a job. Respondent also filed a 

motion for continuance of a hearing date in order to allow the client to keep 

working at her job. Respondent characterized his statements during the February 

2 telephone call as “absolutely sickening,” an “abomination,” and 

“reprehensible.” Respondent stated that “no one should be treated” the way he 

had treated the client. 

{¶ 13} Respondent is middle-aged and obtained his law license in 2004. 

He is in his second marriage and has two grown children. Respondent has been 

under treatment for depression, attention-deficit disorder, and diabetes for a 

number of years. Respondent takes medications for those conditions, and from 

mid-January to mid-March 2010, respondent failed to fill his prescriptions and 

went without his medication. The absence of medication made respondent 

anxious and more depressed, and he was “short and curt” with others. According 

to the respondent, the lack of medication and his resentment at the client’s 

perceived ingratitude for his efforts, rather than sexual desire, caused his improper 

behavior. Respondent began consulting with therapist Jeffrey Durr in March 

2010. Respondent said that Durr has worked with him to gain perspective 

regarding his perfectionist tendencies. 

{¶ 14} The panel received testimony from Durr, a mental-health therapist 

and licensed clinical counselor. Durr met with the respondent for an initial 

counseling session on March 29, 2010, and by the time of the hearing had had 23 

sessions with him. Durr testified that the respondent came in an anxious and 

depressed state and that he did not mention the grievance until May 2010. Durr 

stated that the respondent was “overgiving” and “raising the bar” in the sense that 

he put too much pressure on himself. Respondent also experienced resentment 

when others did not respond with gratitude for his efforts, including his clients. 

Durr opined that such resentment, together with the withdrawal of medications, 

was the basis for the respondent’s improper conduct in this case. Durr also stated 
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that he believed respondent’s assertion that respondent had no desire to be with 

the client in a physical sense. Durr stated that respondent understands the 

impropriety of what he did and that he has the tools to “stay centered” and avoid 

such misconduct in the future. 

{¶ 15} As mitigating factors pursuant to Section 10(B)(2) of the Rules and 

Regulations Governing Procedure on Complaints and Hearings Before the Board 

of Commissioners on Grievances and Discipline (“BCGD Proc.Reg.”), the parties 

stipulated that respondent had no prior disciplinary record, that he freely disclosed 

and adopted a cooperative attitude during the proceedings, and that he submitted 

character evidence in his favor. BCGD Proc.Reg. 10(B)(2)(a), (d), and (e). 

Additionally, the panel found a diagnosed and treated mental illness that 

contributed to the cause of the misconduct as a mitigating factor pursuant to 

BCGD Proc.Reg. 10(B)(2)(g). 

{¶ 16} As aggravating factors, the panel identified respondent’s selfish 

motive and the client’s vulnerability with resulting harm to the client. BCGD 

Proc.Reg. 10(B)(1)(b) and (h). The panel found that respondent had violated the 

trust he owed the client by deliberately trying to hurt and humiliate her in order to 

make himself feel better. 

Disposition 

{¶ 17} The parties stipulated to a public reprimand as a sanction for the 

respondent for violations of Prof.Cond.R. 8.4(h). Despite the stipulation, the panel 

recommended a six-month suspension, stayed, with one year of probation 

conditioned on continued successful treatment by Durr and respondent’s regular 

physician. The board agreed with the panel recommendation, and the respondent 

has not objected. We concur with the board. 

{¶ 18} Crucial to the question of what sanction to apply is the precise 

nature of respondent’s misconduct. Ohio attorneys have a duty to refrain from 

soliciting or engaging in sexual activity with a client unless a consensual sexual 
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relationship existed between them when the client-lawyer relationship 

commenced. Prof.Cond.R. 1.8(j). Even before the adoption of the Rules of 

Professional Conduct, we consistently disapproved of lawyers engaging in sexual 

conduct with clients where the sexual relationship “ ‘arises from and occurs 

during the attorney-client relationship,’ ” and such misconduct “ ‘warranted a 

range of disciplinary measures depending on the relative impropriety of the 

situation, including actual suspension from the practice of law.’ ” Butler Cty. Bar 

Assn. v. Williamson, 117 Ohio St.3d 399, 2008-Ohio-1196, 884 N.E.2d 55, ¶ 8, 

quoting Cleveland Bar Assn. v. Kodish, 110 Ohio St.3d 162, 2006-Ohio-4090, 

852 N.E.2d 160, ¶ 66. In extreme cases, disbarment was held to be warranted. 

Disciplinary Counsel v. Sturgeon, 111 Ohio St.3d 285, 2006-Ohio-5708, 855 

N.E.2d 1221 (multiple instances of sexual conduct with clients, combined with 

deception, dishonesty, and lack of remorse). On the other hand, when a 

consensual relationship with a client did not actually compromise the client’s 

interests, a public reprimand has sometimes been the sanction. Disciplinary 

Counsel v. Detweiler, 127 Ohio St.3d 73, 2010-Ohio-5033, 936 N.E.2d 498; 

Allen Cty. Bar Assn. v. Bartels, 124 Ohio St.3d 527, 2010-Ohio-1046, 924 N.E.2d 

833. 

{¶ 19} The case before us does not charge a violation of Prof.Cond.R. 

1.8(j), but rather that respondent engaged in conduct that adversely reflected on 

his fitness to practice law in contravention of Prof.Cond.R. 8.4(h). The improper 

conduct consists of statements by telephone in the nature of sexual advances from 

the attorney to the client. The case shows a single instance of such misconduct, 

no actual sexual relationship, no associated misconduct, remorse on the part of the 

respondent, and ongoing medical and psychological treatment. In evaluating the 

evidence, the panel noted that the “respondent asserts anger rather than sexual 

gratification as the motivations for his inappropriate comments” and concluded 

that “[t]here is no evidence, other than the words he used, that this is not true.” 
January Term, 2011 

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But although the misconduct in this case did not involve an actual sexual 

relationship, it did involve a violation of the client’s trust and a deliberate (and 

successful) attempt to demean her by exploiting her vulnerabilities. The cases 

involving consensual sexual conduct are therefore not on point. 

{¶ 20} We adopt the recommendation of the board and order that 

respondent be suspended from the practice of law for six months. The entire 

suspension will be stayed on the conditions that respondent serve a one-year 

period of probation pursuant to Gov.Bar R. V(9) and that he continue successful 

treatment by his doctor and his therapist during the probation period. If 

respondent fails to comply with these conditions, the stay will be lifted, and 

respondent shall serve the six months’ actual suspension followed by a one-year 

period of probation. Costs are taxed to respondent. 

Judgment accordingly. 

 O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,

LANZINGER, CUPP, and MCGEE BROWN, JJ., concur. 

__________________ 

 James Campbell, for relator. 

 Buckingham, Doolittle & Burroughs, L.L.P., and Peter T. Cahoon, for 

respondent. 

______________________