Asbestos attorney Mismas suspended over sexually explicit text messages

COLUMBUS, Ohio (Legal Newsline) - Asbestos plaintiffs attorney John Daniel Mismas of the Mismas Law Firm has been suspended from practicing law in the state of Ohio after he was found to have sent sexually explicit and inappropriate text messages to a law student employed with his firm in December 2011.

The Lake County Bar Association filed the complaint against Mismas, whose firm handles other personal injury matters in addition to asbestos cases, on June 11, 2012, before a probable-cause panel of the Board of Commissioners on Grievances and Discipline. Earlier this year, Mismas was local counsel for a Cleveland-area man who alleged secondhand asbestos exposure and helped secure at $27 million verdict.

The board found that Mismas engaged in conduct that adversely reflected on his fitness to practice law by sending inappropriate, sexually explicit text messages to a law student and clerk at the Mismas Law Firm.

The panel recommended that Mismas be publicly reprimanded for his actions, which was adopted by the board. The recommendation was then sent to the Ohio Supreme Court on Oct. 9, 2013.

"[W]e find that Mismas did not just send sexually explicit text messages to a law student he sought to employ - he abused the power and prestige of our profession to demand sexual favors from her as a condition of her employment," the court wrote.

Therefore, the court suspended Mismas from practicing law for one year, with the final six months stayed on conditions, concluding that a harsher punishment than the board's recommendation was proper.

The Ohio Supreme Court on Thursday filed the slip opinion, which is subject to revision before it is formally published in an advance sheet of the Ohio Official Reports.

Justices Maureen O'Connor and Paul Pfeiffer delivered the opinion with justices Terrence O'Donnell, Judith Ann Lanzinger, Sharon Kennedy, Judith L. French and William O'Neill concurring.

They found that Mismas, who has been practicing law since 2004, violated the Prof. Cond. R 8.4(h), which prohibits a lawyer from engaging in conduct that adversely reflects on the lawyer's fitness to practice law.

In November 2011, Mismas contacted J. Dean Carro, a professor at the University of Akron School of Law, seeking to hire a student law clerk.

Mismas contacted a woman referred to in the opinion as "Ms. C," a third-year law student, and scheduled a face-to-face interview for Dec. 9, 2011.

Immediately following the interview, Mismas and Ms. C exchanged numerous text messages until Dec. 28, 2011.

A number of those messages, the court found, were sexually explicit and inappropriate.

Despite the inappropriate communication, Ms. C accepted employment with Mismas's firm on Dec. 11, 2011.

"Although the conversation began with a general discussion of Ms. C's commitment to Mismas's primary area of practice - asbestos litigation - and the psychological toll that the clients' circumstances can have on those who assist them, it soon took an inappropriate turn," the court wrote.

Mismas' inappropriate communication began when he advised Ms. C that she would "need to take a few beatings" before she could learn to give one. He then rephrased his statements into sexual terms and asked Ms. C if she had ever engaged in the sex act he referenced, the opinion says.

She told him to stop sending inappropriate text messages and reiterated that they were only speaking metaphorically. However, Mismas insisted he was serious, the opinion says.

After refusing to answer the question a second time, Mismas told her that there needed to be able to trust each other, saying, "If you can't trust me with personal issues then that's a problem."

He later told her that he was just testing her and stressed the importance of honesty and loyalty. He added that he was, "Just was checking how offended you would get. This job is not for the weak."

Then just before midnight, Mismas started quizzing Ms. C about an arbitration agreement she was reviewing.

However, Mismas turned the conversation back to loyalty, asking how he could ensure Ms. C would be loyal to him.

He told her, "I have an idea but your not going to like it." He added that she would "bolt" if he told her his idea.

She reassured him that the conversation had already been taken "pretty far" and that she had not bolted, the court wrote.

Then Mismas suggested that she perform a sex act for him.

Ms. C rejected his request, but he refused to drop the issue.

She eventually told him to stop and asked him to admit that he was joking, but he refused and told her that her employment depended on her compliance, telling her, "If you show up at 11 you know what's expected," the opinion says.

He added, "So it's your choice. OK. I'll be there at 11. If you show up great. You know what you gptt. GoTta do. If not Good luck to you."

Ms. C urged him one last time to admit that he was joking, but he replied, "Nope. Not kidding."

The next morning, Mismas texted Ms. C, claiming his statements from the night before had just been a joke. He apologized and promised it would not happen again.

Then on Dec. 22, 2011, Mismas invited Ms. C to travel with him to Washington, D.C. on business for an out-of-town deposition.

She rejected the invitation saying she had a prior commitment to a judicial function.

Mismas responded by belittling her for rejecting his invitation, the opinion says.

Furthermore, he pressured her to go by suggesting that her refusal would have adverse consequences on her employment, the opinion states.

Mismas sent a text stating, "That's strike 1 for you. Three strikes and you are out."

Ms. C resigned her employment the next day.

Carro inquired about Ms. C's employment with Mismas when the student told her of the inappropriate texts and that she felt uncomfortable continuing her position there.

Carro then filed a grievance with the Lake County Bar Association.

In February 2012 testimony, Mismas admitted that he was an alcoholic and insisted that the inappropriate messages sent to Ms. C were meant in jest, the opinion states.

"He claimed that he had been drinking heavily at the time he sent the sexually explicit texts and that he had no memory of actually sending them," the court wrote. "Viewing the texts in retrospect, he said that he was embarrassed by his conduct and referred to it as 'disgusting and grotesque.'"

The panel and board found that Mismas had shown "genuine remorse" for his misconduct and was taking the necessary steps to avoid engaging in similar misconduct in the future, the opinion states.

Marilyn Wise, a license independent chemical-dependency counselor, testified that Mismas began treatments with her in March 2012.

She said Mismas completed the approved treatment program and continued to regularly attend Alcoholics Anonymous meetings.

The court was unconvinced by Mismas' efforts to rectify the consequences by attending AA meetings and undergoing treatment with Wise.

"While the record contains substantial evidence of the efforts that Mismas has taken to rectify his alcoholism, his alcohol dependency is a contributing cause rather than the consequence of his misconduct," the court stated.

Furthermore, Ms. C testified that after resigning, Mismas became hostile, put her down for being naive and threatened to contact her professors to "tell them what a stupid decision she had made," the opinion states.

"His brief apology to her at the panel hearing and his efforts to have her testimony placed under seal to protect her from future harm, although appropriate, do little to meliorate Ms. C's anxiety, embarrassment, frustration, disappointment and fear of harm to her professional reputation," the court wrote.

Wise further testified that Mismas has "an excellent prognosis of continued sobriety and healthy mental status and should continue unimpeded, the work of the exceptional attorney that he is."

As a result, the only aggravating factor found by the panel was the vulnerability of and resulting harm to Ms. C, the opinion states.

"The board, however, rejected the panel's finding that the absence of a dishonest or selfish motive was a mitigating factor and instead found that Mismas had acted with a dishonest or selfish motive that qualified as an additional aggravating factor," the court wrote.

Citing multiple mitigating factors and only one or two aggravating factors, the panel and board recommended the court adopt the parties' stipulated sanction of a public reprimand. The court rejected, saying Mismas engaged in "undignified and unprofessional conduct" by targeting an employee for sexual harassment.

"Legal clerkships play an important role in developing the practical skills necessary for law students to become competent, ethical ad productive members of the legal profession," the opinion states.

The opinion added that skills, relationships and reputations developed during clerkships and similar entry-level positions help open doors to law students' first full-time legal position after graduation.

"These first jobs can set the course for a new attorney's entire legal career," it continued. "Attorneys who hire law students serve not only as employers but also as teachers, mentors and role models for the next generation of our esteemed profession. To that end, we expect that attorneys will conduct themselves with a level of dignity and decorum befitting these professional relationships.

The court further stated that while unwelcome sexual advances are unacceptable in any situation, it is especially appalling when made by an attorney with the power to hire, supervise and fire the recipient.

In this case, Mismas made the inappropriate advances and then continued to indicate that her employment depended on her compliance with his demands.

"And even after being rebuffed, he continued to exert his leverage over Ms. C by pressuring her to travel out of state - and away from her support system - with him," the opinion states.

The court held that such actions goes beyond causing harm to Ms. C.

"When an attorney engages in sexually inappropriate conduct of this nature, it causes harm not only to the individual to whom the conduct is directed but also to the dignity and reputation of the profession as a whole," the court wrote. "Thus, we conclude that Mismas's conduct is more serious than 'simply operating a cellphone when under the influence,' as his counsel suggests, or sending sexually explicit and inappropriate text messages, as the board found."

Ultimately, the court concluded that more than a public reprimand is necessary to protect the public from future misconduct.

As a result, the court suspended Mismas from practicing law in Ohio for one year, with the last six months stayed "on the conditions that he engage in no further misconduct and continue to comply with all recommendations of his treating medical and psychological professionals."

From Legal Newsline: Reach Heather Isringhausen Gvillo at asbestos@legalnewsline.com