Disciplinary Counsel v. Cox (Slip Opinion) , 2022 Ohio 784 ( 2022 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Cox, Slip Opinion No. 2022-Ohio-784.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
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the opinion is published.
SLIP OPINION NO. 2022-OHIO-784DISCIPLINARY COUNSEL v. COX.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Disciplinary Counsel v. Cox, Slip Opinion No.
2022-Ohio-784.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct, namely,
engaging in sexual activity with a client in the absence of a preexisting
consensual sexual relationship, knowingly making a false statement of
material fact in connection with a disciplinary hearing, and engaging in
conduct involving dishonesty, fraud, deceit, or misrepresentation—Two-
year suspension with the second year stayed on conditions.
(No. 2021-0975—Submitted December 7, 2021—Decided March 22, 2022.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2020-073.
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Per Curiam.
{¶ 1} Respondent, Kevin Christopher Cox, of Coshocton, Ohio, Attorney
Registration No. 0074018, was admitted to the practice of law in Ohio in 2001. In
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a December 2020 complaint, relator, disciplinary counsel, alleged that Cox had
committed several ethical violations by engaging in inappropriate sexual
communications and a physical sexual relationship with a client and then lying
about that conduct during the ensuing disciplinary investigation.
{¶ 2} The matter proceeded to a hearing before a three-member panel of the
Board of Professional Conduct. After that hearing, the panel issued a report finding
that Cox had committed the charged misconduct. Citing Cox’s lack of candor
throughout the disciplinary proceedings, the panel recommended that he be
suspended from the practice of law for two years, with the second year stayed on
conditions. The board adopted the panel’s findings of fact, conclusions of law, and
recommended sanction.
{¶ 3} Cox objects, arguing that the board’s findings that he engaged in a
physical sexual relationship with a client and then lied about it are against the
manifest weight of the evidence. He argues that a public reprimand coupled with
continuing-legal-education (“CLE”) requirements is the appropriate sanction for
sending inappropriate text messages to his client. After a thorough review of the
record and our precedents, we overrule Cox’s objections and adopt the board’s
findings of misconduct and recommended sanction.
Findings of Misconduct
{¶ 4} In November 2017, Cox was employed by McCleery Law Firm,
L.L.C., in Coshocton and had been recently assigned to represent V.W. in her
divorce. Cox understood that V.W. was to be treated with care because she was the
firm’s most important client, given the fees her case would generate.
{¶ 5} Cox represented V.W. until February 2019, when he withdrew from
her case. The McCleery firm continued to represent V.W. In November 2019,
V.W. disclosed to the firm that she had engaged in a sexual relationship with Cox—
though she had denied having an “affair” with him when she testified in her divorce
hearing. After V.W.’s divorce became final in January 2020, Gregory McCleery,
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the principal of the McCleery firm, asked V.W. to provide corroborating evidence
regarding her alleged sexual relationship with Cox. She gave McCleery copies of
several text messages and emails that she had exchanged with Cox. McCleery later
filed a grievance with relator, reporting Cox’s alleged misconduct.
{¶ 6} At Cox’s disciplinary hearing, V.W. described herself as vulnerable
and emotionally weakened by the stress of her marital breakup. She testified that
shortly after Cox began representing her, they began a consensual sexual
relationship that lasted for more than a year. She stated that she and Cox typically
met at her home to have sex.
{¶ 7} V.W. testified at the disciplinary hearing that the relationship
deteriorated in February 2019 when she realized that, despite her understanding that
Cox was separated, he was still living with his wife. V.W. also addressed her
divorce-hearing testimony, in which she had denied having an affair with Cox,
explaining that she did not equate having sex with Cox to an affair because she had
already separated from her husband and felt that she had no moral or legal
obligations to him. She further testified that if she had been asked during the
divorce hearing if she and Cox were having sex, she would have answered, “Yes.”
{¶ 8} Cox initially denied having engaged in any misconduct. At his
disciplinary hearing, however, Cox acknowledged sending “wildly inappropriate”
sexual text messages and emails to V.W. in early November 2017. But he
maintained that he had never engaged in a physical sexual relationship with her.
Cox emphasized the disparity between V.W.’s divorce-hearing testimony, in which
she had denied having an affair with him, and her disciplinary-hearing testimony,
in which she had reported having a physical sexual relationship with him. He urged
the panel to accept that disparity as compelling evidence of V.W.’s lack of veracity.
But the panel’s findings show that it was more troubled by Cox’s dishonesty
throughout the disciplinary process.
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{¶ 9} First, the panel found that Cox was untruthful in his May 2020
response to relator’s letter of inquiry when he denied the existence of any
inappropriate sexual relationship with V.W. and omitted any reference to his text
messages and emails with her. In his testimony to the panel, Cox claimed that he
had responded only to the content of McCleery’s grievance, which did not include
copies of the offending text messages and emails, and that he had not had the
opportunity to review the text messages or emails. But the panel found that
testimony to be untruthful because Cox acknowledged at the hearing that McCleery
had shown him (but not allowed him to keep copies of) some of those messages
when McCleery first confronted him with the situation in February 2020.
{¶ 10} Second, the panel found that Cox “was not truthful in his deposition
testimony and was dishonest in his efforts to sanitize that record through corrections
on the related errata sheet.” During his November 2020 deposition, Cox testified
that he did not recall sending the text messages to V.W., and he answered, “No,”
when asked whether it was “possible” that he had sent them. After reviewing the
deposition transcript, Cox completed an errata sheet changing his answer to that
question from “no” to “yes.” He further noted on the errata sheet: “I now believe
the text messages came from my phone. While I do not remember these specific
text messages, my Verizon records show they came from my phone/my phone
number.” The panel found that Cox’s explanation for that change was devoid of
credibility because the phone records that Cox claimed to have reviewed did not
contain any text-message logs and did not identify the phone numbers associated
with any text messages, the times or dates that text messages were sent, or the
content of any text messages.
{¶ 11} Third, the panel found that Cox was dishonest about his use of an
email address that bore his full name. During his deposition, Cox denied that the
email address belonged to him and he denied using that account to exchange emails
with V.W. At his disciplinary hearing, however, he acknowledged that it was
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“possible” that he had sent emails to V.W. from that email address. Cox explained
that he changed his testimony because he had acquired information that caused him
to believe that his deposition testimony was inaccurate. That information consisted
of records that relator had obtained from Google pursuant to a subpoena, linking
Cox to the email address in question through subscriber information and an
Internet-protocol address. Based on this testimony, the panel found that Cox “was
willing to acknowledge only those acts Relator was able to prove through
documents” and that Cox “dissembled whenever possible.”
{¶ 12} The panel found that Cox’s phone records corroborated V.W.’s
testimony and proved that Cox did not testify truthfully at his disciplinary hearing.
V.W. testified that on the night of November 3, 2017, Cox went to her home and
engaged in sexual intercourse with her. Cox’s phone records establish that he
placed a call to his wife at 10:00 p.m. that night from the small town where V.W.’s
home is located. At 11:23 p.m., he called V.W. At 11:27 p.m., V.W. sent an email
to Cox stating, “I miss you already!” At 9:04 a.m. the next morning, Cox
responded, “I feel the same way. I hope you have a great day today. I am dragging
lol.” At 9:17 a.m., V.W. sent him another email stating, “You were absolutely
worth every second WOW! I can rewatch the garage episode on my security
camera. I was definitely surprised/excited to see you.” Yet Cox denied that he had
had any sexual relationship with V.W.
{¶ 13} On these facts, the panel found that V.W.’s disciplinary-hearing
testimony, notwithstanding the apparent inconsistency with her divorce-hearing
testimony, was “far more credible” than Cox’s testimony. Relying on that
testimony and the other evidence adduced at the hearing, the panel found that Cox
had violated Prof.Cond.R. 1.8(j) (prohibiting a lawyer from soliciting or engaging
in sexual activity with a client unless a consensual sexual relationship existed prior
to the client-lawyer relationship) by sending inappropriate text messages to V.W.
and engaging in a sexual relationship with V.W. that did not predate the attorney-
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client relationship. The panel found he had also violated Prof.Cond.R. 8.1(a)
(prohibiting a lawyer from knowingly making a false statement of material fact in
connection with a disciplinary matter) and 8.4(c) (prohibiting a lawyer from
engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) by
making false statements of material fact in his response to relator’s letter of inquiry,
in his deposition testimony and corrections thereto, and in his testimony to the
panel. The board adopted these findings of fact and misconduct.
Cox’s Objections to the Board’s Findings of Fact and Misconduct
{¶ 14} In his first two objections to the board’s report and recommendation,
Cox contends that the board’s findings that he engaged in a physical sexual
relationship with V.W. and that he intentionally lied about that relationship are
against the manifest weight of the evidence. In these objections, Cox acknowledges
that the board’s findings of fact and misconduct necessarily turn on the credibility
of his own testimony and that of V.W.
{¶ 15} Cox offers several reasons that the board should have found V.W.’s
testimony less credible than his own. Cox renews his argument that V.W.’s
disciplinary-hearing testimony was not credible because she had previously denied
under oath having an affair with him yet she later contacted his ex-wife and
confessed to having had “an affair” with Cox while he was still married. He also
asserts that V.W. suffered from dementia when she reported to McCleery that she
and Cox had had a sexual relationship. Cox notes that although V.W. claimed that
there was a “sex tape” that documented their alleged physical sexual relationship,
she never produced a copy of that video. He also contends that relator’s failure to
procure the testimony of two of V.W.’s friends—one of whom had purportedly
viewed a portion of the “sex tape” and another in whom V.W. claims to have
confided—suggests that they could not corroborate V.W.’s “story.”
{¶ 16} On the other hand, Cox argues that he was truthful during his
deposition when he denied having any recollection of the alleged “sexting,”
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because he had no reason to recall those communications more than two years after
they occurred. He maintains that after further investigation led him to conclude
that he had “probably written the improper sexting messages,” he exercised his right
to file an errata sheet to correct his testimony. For the reasons that follow, we find
that these arguments are without merit.
{¶ 17} In attorney-discipline matters, the relator must prove by clear and
convincing evidence the facts necessary to establish an ethical violation. Ohio State
Bar Assn. v. Reid, 85 Ohio St.3d 327, 708 N.E.2d 193 (1999), paragraph two of the
syllabus. Clear and convincing evidence is an intermediate measure of proof that
requires evidence sufficient to produce in the mind of the trier of facts “ ‘a firm
belief or conviction as to the facts sought to be established.’ ” Id. at 331, quoting
Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the
syllabus.
{¶ 18} “[I]t is of no consequence that the board’s findings of fact are in
contravention of respondent’s or any other witness’s testimony. ‘Where the
evidence is in conflict, the trier of facts may determine what should be accepted as
the truth and what should be rejected as false.’ ” Disciplinary Counsel v. Zingarelli,
89 Ohio St.3d 210, 217, 729 N.E.2d 1167 (2000), quoting Cross at 478. “Unless
the record weighs heavily against a hearing panel’s findings, we defer to the panel’s
credibility determinations, inasmuch as the panel members saw and heard the
witnesses firsthand.” Cuyahoga Cty. Bar Assn. v. Wise, 108 Ohio St.3d 164, 2006-
Ohio-550, 842 N.E.2d 35, ¶ 24.
{¶ 19} During Cox’s disciplinary hearing, V.W. testified that she had sexual
intercourse with Cox “within weeks” of meeting him. She stated that on the
evening of November 3, 2017, Cox came to her home and began “making out” with
her in the garage (which had a security camera) before moving to the living room
(which did not have a security camera) where they engaged in sexual intercourse.
It was later that night and the next morning that the exchange of emails and text
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messages summarized in the board’s findings occurred. The records of those
communications place Cox in V.W.’s town and establish that the two of them were
together that night and that they missed each other after parting. Moreover, V.W.’s
email stating, “You were absolutely worth every second WOW! I can rewatch the
garage episode on my security camera. I was definitely surprised/excited to see
you,” corroborates V.W.’s testimony that they had engaged in some form of
physical contact of a sexual nature.
{¶ 20} In another exchange of text messages, V.W. asked Cox if he was on
his way to her house yet and Cox responded, “Well now I’m thinking of you naked
and I’ve forgotten my name * * * well, that and my mouth and tongue running over
every inch of your body.” (Ellipses sic.) V.W. estimated that they had had sex 50
to 100 times between November 2017 and February 2019.
{¶ 21} The record demonstrates that the hearing panel was well aware of
V.W.’s prior testimony in which she had denied having an “affair” with Cox and
of the text message that she later sent to Cox’s ex-wife confessing to having had
“an affair” with him when he was still married. However, the panel accepted
V.W.’s explanation for the apparent inconsistency between her disciplinary-hearing
testimony and her divorce-hearing testimony and found her to be “far more
credible” than Cox. Indeed, the panel stated:
[V.W.] conveyed a sense of forthrightness and candor about the
entire relationship with [Cox], under circumstances that were at the
least embarrassing. She evinced no feeling of bitterness or anger
towards [Cox] and in fact made it clear that she was concerned about
the impact of the proceedings on his career. Her attitude served to
increase her credibility.
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{¶ 22} Despite Cox’s arguments to the contrary, the record does not weigh
heavily against the board’s determination that V.W.’s testimony was more credible
than his own. Although Cox suggests that V.W.’s memory of these events was
faulty because she suffered from dementia, on cross-examination V.W. expressly
denied that she had ever been diagnosed with that condition, though she admitted
that she had been treated for a medical condition that caused her to be forgetful.
V.W. also offered a plausible explanation for her failure to produce the “sex tape,”
testifying that her security system records over previous footage every 30 days.
Nor does relator’s failure to call V.W.’s friends as corroborating witnesses render
V.W.’s testimony any less credible.
{¶ 23} Two former employees of the McCleery firm testified that they did
not believe V.W. was an honest or trustworthy person; those witnesses also
described Cox as “honest,” “truthful,” “trustworthy,” and “believable.” Although
their testimonies do not comport with the panel’s own assessment of Cox’s
credibility, the record does not weigh heavily against the panel’s assessment in this
regard.
{¶ 24} Indeed, it is not entirely clear from the record that Cox has ever
unequivocally admitted that he wrote or sent the offending text messages to V.W.
In his deposition errata sheet, he changed his original answer in which he had
denied writing one of the sexually suggestive text messages to reflect that he did
write the message. But the remainder of Cox’s corrections to that testimony
conveyed only his newfound belief that the text messages “came from [his] phone.”
{¶ 25} Then, at his disciplinary hearing, Cox testified that he was “entirely
responsible” for the text messages and other sexual communications with V.W. and
that his conduct “was violative of the professional rules of conduct,” but he
maintained that he did not remember engaging in those communications. Cox
occasionally stated that he did not dispute that the text messages were from him.
However, more often than not he equivocated, stating that he could not say “for
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sure” that he had sent the text messages in question but that he “probably” had sent
them and that he fully recognized that those text messages were “likely” his.
{¶ 26} One panel member confronted Cox about his credibility at the
disciplinary hearing, stating, “Just to be frank, I have to tell you that I find it difficult
to believe that a lawyer representing the firm’s most important client would not
remember sending those texts and e-mails.” The panel member then instructed
Cox: “Tell me why you think you are unable to remember that, even to this day, as
I understand your testimony.” In response, Cox offered that V.W. was “a very
friendly and jovial person,” that they “got along very well,” and that they “instantly
had a banter that went back and forth.” While Cox claimed that their banter had
started “innocently enough” and that it “certainly slid into an inappropriate area,”
he maintained that he “was not specifically looking [for] or trying to have a physical
relationship with [her].” He offered little explanation for his inability to remember
those communications, other than to state that “it was kind of a throwaway” and
that “it wasn’t widespread.” And at no time did he ever acknowledge that he had
engaged in any physical sexual contact with V.W.
{¶ 27} Ultimately, the panel was in the best position to assess the credibility
of each of the witnesses, and the record does not weigh heavily against those
findings. Furthermore, we find that the evidence clearly and convincingly
demonstrates that Cox’s inappropriate sexual relationship with V.W. involved a
physical component, as well as sexually charged communications by text message
and email, and that Cox lied about both aspects of that relationship throughout this
disciplinary proceeding. We therefore overrule Cox’s first two objections and
adopt the board’s findings of misconduct.
Recommended Sanction
{¶ 28} When imposing sanctions for attorney misconduct, we consider all
relevant factors, including the ethical duties that the lawyer violated, the
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aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions
imposed in similar cases.
{¶ 29} The board found the presence of seven aggravating factors here: Cox
(1) acted with a dishonest or selfish motive, (2) engaged in a pattern of misconduct,
(3) committed multiple offenses, (4) failed to cooperate in the disciplinary process,
(5) submitted false evidence, made false statements, or engaged in other deceptive
practices during the disciplinary process, (6) refused to acknowledge the wrongful
nature of his conduct, and (7) caused harm to a vulnerable client. See Gov.Bar
R. V(13)(B)(2) through (8).
{¶ 30} As for mitigating factors, the board found that Cox has no prior
discipline and presented evidence of his good character or reputation. See Gov.Bar
R. V(13)(C)(1) and (5).
{¶ 31} In determining the appropriate sanction for Cox’s misconduct, the
board considered three cases in which we imposed sanctions ranging from a six-
month fully stayed suspension to a two-year suspension with the second year
conditionally stayed. The board recommends that we suspend Cox from the
practice of law for two years and that we stay the second year of that suspension on
the conditions that he commit no further misconduct, complete six hours of CLE
focused on appropriate behavior and boundaries with clients in addition to the
requirements of Gov.Bar R. X, and pay the costs of this proceeding.
Cox’s Objections to the Board’s Recommended Sanction
{¶ 32} Cox objects to the board’s recommended sanction and argues that
his misconduct, which he describes as “improper sexual banter” with a client,
warrants a sanction no greater than a public reprimand coupled with a requirement
that he complete 6 to 12 hours of CLE and, perhaps, a period of monitored
probation. In support of that proposed sanction, Cox maintains that he has been
truthful throughout this disciplinary proceeding and that he should be credited for
his cooperation and sincere remorse for his misconduct.
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{¶ 33} However, Cox’s cooperation in this proceeding has been minimal
and pales in comparison to the pattern of dishonesty, misrepresentation, and
dissembling that he has exhibited throughout this case. His purported acceptance
of responsibility and professed remorse for his sexually charged communications
ring hollow when balanced against his repeated efforts to cast responsibility for the
transmission of those sexually charged communications upon an unidentified
scapegoat—admitting that the communications came from his phone and email
address but being unable to recall having written or sent any of those messages
himself. Even in his objections Cox attempts to have it both ways. He denies that
he ever had any physical sexual contact with V.W. while inexplicably claiming that
“[a]ny sexual activity that occurred between VW and [himself] was, factually—but
not legally—consensual, and welcomed by VW.” In short, Cox has not cooperated
in this disciplinary proceeding, has not accepted responsibility for his misconduct,
and has not expressed genuine remorse for his actions.
{¶ 34} The board found that the facts of this case most closely align with
the facts of Disciplinary Counsel v. Benbow, 153 Ohio St.3d 350, 2018-Ohio-2705,
106 N.E.3d 57. Benbow exchanged electronic messages of a sexual nature with
one of his clients and they were caught on video engaging in sexual conduct in a
courthouse conference room. Although Benbow reported some of those events to
a local bar association, he misrepresented the extent of his relationship with the
client and the nature of their conduct at the courthouse. Like Cox, Benbow omitted
relevant information and affirmatively misrepresented facts when deposed by the
relator, then submitted an errata sheet purporting to clarify his testimony. He also
gave evasive and argumentative testimony during his disciplinary hearing.
{¶ 35} Unlike Cox, Benbow was found to have engaged in conduct that was
prejudicial to the administration of justice. Benbow ultimately stipulated to four of
the five charged rule violations—including the same three rules that Cox violated.
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Furthermore, Benbow agreed that his misconduct warranted a two-year suspension
with the second year conditionally stayed.
{¶ 36} “We have held that an attorney who engages in a course of conduct
that involves dishonesty, fraud, deceit, or misrepresentation must serve an actual
suspension from the practice of law for an appropriate period of time.” Id. at ¶ 19,
citing Disciplinary Counsel v. Fowerbaugh, 74 Ohio St.3d 187, 658 N.E.2d 237(1995), syllabus. In this case, we believe that a two-year suspension with the
second year stayed on the conditions recommended by the board will serve to
protect the public from future harm, to impress upon Cox the seriousness of his
misconduct, and to educate him so that it does not happen again.
{¶ 37} Based on the foregoing, we overrule Cox’s final objection and adopt
the board’s recommended sanction.
Conclusion
{¶ 38} Accordingly, Kevin Christopher Cox is suspended from the practice
of law in Ohio for two years with the second year stayed on the conditions that he
commit no further misconduct, complete six hours of CLE focused on appropriate
behavior and boundaries with clients in addition to the requirements of Gov.Bar R.
X, and pay the costs of these proceedings. If Cox fails to comply with any condition
of the stay, the stay will be lifted and he will serve the full two-year suspension.
Costs are taxed to Cox.
Judgment accordingly.
O’CONNOR, C.J., and FISCHER, DEWINE, DONNELLY, STEWART, and
BRUNNER, JJ., concur.
KENNEDY, J., concurs in judgment only.
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Joseph M. Caligiuri, Disciplinary Counsel, and Michelle A. Hall, Assistant
Disciplinary Counsel, for relator.
Mann Dulaney, L.L.C., and William Mann, for respondent.
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