Washington Lawyer

Bar Counsel: Love Your Work: Keep Cupid Away From You and Your Client

From Washington Lawyer, February 2003

By Joyce E. Peters

barcounsel

It’s February: a time of hearts, flowers, and love. Love, however, takes many forms. “The love of liberty is the love of others; the love of power is the love of ourselves.”1

Although most lawyers would not admit a love of power, they would espouse a love of liberty. Most lawyers love the law, love the ideals of the law, love the battle of ideas that legal work entails, love the ability to serve others through the law, and love the professional society and challenge that the law provides. Many lawyers love helping their clients. A few lawyers, however, go too far in loving their clients and let sexual impulses get involved. This kind of love may result in a bar complaint for an improper sexual relationship and lead to disciplinary action for unethical conduct involving a violation of the conflict-of-interest rules or one of several other ethical rules.

The District of Columbia currently has no ethical rule equivalent to the new Model Rule 1.8(j), adopted last summer by the American Bar Association (ABA) as part of Ethics 2000, to deal with sexual relationships between attorneys and their clients. Model Rule 1.8(j) provides: “A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.” This new rule provision totally prohibits any sexual relationship that is formed after the attorney–client relationship has begun.

In adopting this total ban on such relationships in a model rule, the Ethics 2000 Commission recognized that “most egregious behavior of lawyers can be addressed through other Rules,” but noted that given the number of such complaints against lawyers alleging sexual misconduct, “having a specific Rule has the advantage not only of alerting lawyers more effectively to the dangers of sexual relationships with clients but also of alerting clients that the lawyer may have violated ethical obligations in engaging in such conduct.”2 The Ethics 2000 Commission rejected the idea of a partial ban on such relationships, that is, a ban that would prohibit these relationships only if they involved evidence of lawyer incompetence or coercive behavior. The Ethics 2000 Commission concluded that a partial ban would not adequately address “the problem of conflicts of interest, particularly the difficulty of obtaining an adequately informed consent from the client.”3

Comment 17 to Model Rule 1.8 further discusses the rationale for the ABA’s adoption of this new provision:

The relationship between lawyer and client is a fiduciary one in which the lawyer occupies the highest position of trust and confidence. The relationship is almost always unequal; thus, a sexual relationship between lawyer and client can involve unfair exploitation of the lawyer’s fiduciary role, in violation of the lawyer’s basic ethical obligation not to use the trust of the client to the client’s disadvantage. In addition, such a relationship presents a significant danger that, because of the lawyer’s emotional involvement, the lawyer will be unable to represent the client without impairment of the exercise of independent professional judgment. Moreover, a blurred line between the professional and personal relationships may make it difficult to predict to what extent client confidences will be protected by the attorney-client evidentiary privilege, since client confidences are protected by privilege only when they are imparted in the context of the client-lawyer relationship. Because of the significant danger of harm to client interests and because the client’s own emotional involvement renders it unlikely that the client could give adequate informed consent, this Rule prohibits the lawyer from having sexual relations with a client regardless of whether the relationship is consensual and regardless of the absence of prejudice to the client.

As this comment suggests, an improper sexual relationship with a client could implicate a variety of ethical rules. For example, the entanglement of a sexual relationship might impair a lawyer’s ability to serve the client with the requisite skill and care in violation of Rule 1.1 if the lawyer, blinded by the relationship, attempts ineptly to provide services outside the areas of the lawyer’s competence. Or Rule 1.2 might be implicated if the relationship causes a blurring of personal and professional responsibilities potentially resulting in the lawyer ignoring the wishes of the client or failing to recognize and consult appropriately concerning a paramour client’s conduct that was either fraudulent or criminal. The confusion of roles caused by the relationship might also lead to a violation of Rule 1.3 if the lawyer prejudices or damages the client, as when high emotion accompanies the end of a personal sexual relationship amidst an ongoing attorney–client relationship or the lawyer drops a client’s matter or refuses to appear on the client’s behalf in response to a client’s refusal to continue the relationship. A lawyer who stops communicating with his or her client because of such an estrangement might run afoul of Rule 1.4, and the potential for problems under Rule 1.6 dealing with confidences and secrets is even directly mentioned in the comment quoted above.

Other perils from sexual relationships with a client may lurk in Rule 1.8(a) if the sexual relationship leads to financial matters or business transactions and the various conditions designed to keep the transaction at “arm’s length” are not followed. Or issues involving Rule 1.14 may arise if the client’s ability to make adequately considered decisions in connection with the representation is impaired by the passion or coercion of the relationship. Rule 1.15 requirements concerning safekeeping and segregating property of the client might be overlooked; or under Rule 2.1 the lawyer might be unable to exercise independent professional judgment and render candid advice because of sexual involvement with the client. A lawyer in a sexual relationship with a client, perhaps a client involved in a domestic dispute, also might unexpectedly discover that the lawyer needs to be a witness and is thus unable to advocate for the client because of Rule 3.7, or the lawyer might be unexpectedly confronted with a tricky situation involving unplanned communication with a client’s spouse or an opposing party who may be represented or unrepresented, raising possible issues under Rule 4.2 or 4.3. A sexual relationship might also lead to more serious misconduct if Rule 8.4(b) (criminal acts), 8.4(c) (dishonesty), or 8.4(d) (serious interference with the administration of justice) is involved.

At the center of all of these potential perils that may arise from a sexual relationship with a client is the problem of the lawyer maintaining professional independence and the ability to provide unfettered advice and assistance without outside influences. Rule 1.7(b), the general rule on conflict of interest, provides:

Except as permitted by paragraph (c) below, a lawyer shall not represent a client with respect to a matter if…(4) The lawyer’s professional judgment on behalf of the client will be or reasonably may be adversely affected by the lawyer’s responsibilities to or interest in a third party or the lawyer’s own financial, business, property, or personal interests. [Emphasis added.]

     Rule 1.7(b), however, does not contain an absolute prohibition precluding any representation in which the lawyer’s professional judgment may be adversely affected. Rather, in subparagraph (c) of Rule 1.7 “[a] lawyer may represent a client with respect to a matter…described in…[subparagraph b] if each potentially affected client provides consent to such representation after full disclosure of the existence and nature of the possible conflict and the possible adverse consequences of such representation.” The questions, however, are whether that consent was requested and, if so, how effective that consent may be if the client is either emotionally attached to the lawyer or feeling coerced to continue a sexual relationship. This obviously would be a question of fact if such a case arose.
    Fortunately, in the District of Columbia we have had few cases involving lawyers engaged in inappropriate sexual relationships with their clients. This has not been true, however, in other states, so our disciplinary system has imposed reciprocal discipline for such misconduct arising in other jurisdictions. For example, in In re Goldsborough,4 a reciprocal proceeding from Maryland, the Maryland Court of Appeals5 found that the attorney had spanked one client, had regularly spanked his secretary, and had kissed a second client, engaging in conduct prejudicial to the administration of justice and reflecting adversely on his fitness to practice law, both in violation of Maryland’s former DR 1-102. The Maryland court also found that the attorney’s spanking of his secretary continued after Maryland adopted its rules of professional conduct and that the attorney’s actions had therefore also violated Rule 8.4(d) as conduct prejudicial to the administration of justice.6

When the matter was considered here as a reciprocal matter, the Board on Professional Responsibility did an extensive analysis of the issues and prepared a lengthy report for the District of Columbia Court of Appeals. The court, however, noting that the attorney had neither participated in the proceedings nor challenged the presumption in favor of reciprocal discipline, declined to discuss which disciplinary rules had been violated or how it would resolve the issues here if it had been an original matter. The court, applying the presumption in favor of identical reciprocal discipline, then imposed identical reciprocal discipline: a two-year suspension with a requirement that the attorney establish his fitness for reinstatement.7

Subsequently, in In re Gilbert,8 a reciprocal matter from New York, the court in a per curiam opinion imposed a one-year suspension as identical reciprocal discipline for misconduct involving the attorney’s unsolicited sexual advances to two female secretaries in his office and to two female clients. The attorney in this case had participated in the reciprocal proceeding but did not oppose the imposition of a one-year suspension. The sanction in Gilbert did not require the attorney to establish his fitness for reinstatement.

A year later in In re Piatt,9 a reciprocal matter from Arizona, the court was presented with a case involving “sexual harassment, including unwanted sexual advances and lewd comments, of two female clients.”10 In imposing identical reciprocal discipline of a public censure with one year of unsupervised probation and a reporting requirement (as recommended by the board), the court noted that the attorney had not participated in or filed any opposition to the reciprocal proceedings or the recommended sanction. In discussing the appropriate sanction, the court stated:

The Board noted that the discipline imposed by the Arizona court is substantially less severe than the sanctions imposed in other, similar reciprocal discipline cases. However the Board has no guidance in precedent because the issue of appropriate discipline for such sexual misconduct has never arisen in an original proceeding in this jurisdiction.

….
   There is a rebuttable presumption that the sanction imposed by this court in a reciprocal discipline case will be identical to that imposed by the original disciplining court….

The record does not give us any cause to find imposition of identical discipline inappropriate…. Thus, the presumption in favor of identical discipline has not been rebutted, and we must defer to the Board and to the opinion of the Arizona court that heard the testimony and reviewed the evidence. We make no judgment about what an appropriate sanction might be if there were an original, rather than a reciprocal, proceeding, or if one or both parties had contested the sanction recommended by the Board.11

    In another reciprocal case from New York, In re Alongi,12 the court imposed a one-year suspension with a requirement that the attorney establish his fitness to resume the practice of law as identical reciprocal discipline. The Supreme Court of New York, Appellate Division, Fourth Judicial Department, had found six violations involving the attorney’s representation of two related clients. Our court quoted the New York court’s conclusions that the attorney had

made misrepresentations to a client regarding the status of a lawsuit and prepared documents and advanced funds in furtherance of the misrepresentations; that he engaged in a sexual relationship with the client during the course of the attorney-client relationship; that he prepared a will for the client designating himself as executor and guardian of the property of the client’s infant son without making required disclosures regarding the potential conflict of interest; and that he neglected another client’s criminal matter.13

After pointing out that one New York disciplinary rule had no counterpart in the District of Columbia, our court found that “the record supports the Board’s conclusion that…[the attorney’s] misconduct violates at least five of the District of Columbia Rules of Professional Responsibility and warrants a one-year suspension with a fitness requirement.”14 Again, however, the court did not identify how it viewed the violations or specify exactly which rules were violated.
    In contrast to these reciprocal cases, In re Asher15 is an original case in which an attorney was charged with multiple violations of the Rules of Professional Conduct in connection with four separate matters, including a charge of engaging in an impermissible conflict of interest with a female client in violation of Rule 1.7(b)(4). “The hearing committee determined, and the board agreed, that the evidence established that…[the attorney] engaged in an impermissible conflict of interest in violation of Rule 1.7(b)(4), when he made unsolicited sexual advances toward [his client].”16 The court accepted these findings of the hearing committee and the board, but the case was ultimately resolved based on findings of misappropriation of client funds under seriously aggravated circumstances. In fact, “the Board found this to be one of the more aggravated cases of misappropriation that it had ever seen, with the presence of forgery, fraud, and false statements, among other serious violations.”17 The sexual misconduct, though one of the aggravating factors in the case, did not figure heavily in the sanction—disbarment with reinstatement conditioned on restitution—which was mandated under the rule in In re Addams18 because of the intentional misappropriation.

Thus, although there is some limited precedent from the decision in Asher that an attorney who engages in an improper sexual relationship with a client violates the general conflict-of-interest provisions in Rule 1.7(b)(4), the court has yet to consider a case in which the primary offense was such misconduct. Certainly if the sexual relationship also involves criminal conduct, and the lawyer is convicted of a crime involving that conduct, the provisions of Rule 8.4(b) and District of Columbia Bar Rule XI, § 10, become applicable. For behavior short of criminal conduct, the facts of the case would determine if a rule violation has occurred.

The point, however, is that lawyers should be careful to avoid sexual relationships with their clients and recognize the special trust and responsibility that the attorney–client relationship has. Every lawyer may love the law or love helping clients, but no lawyer wants to be known as the one who established the rule on sexual misconduct with clients. Far better is to keep a sharp line between personal and professional relationships and to keep Cupid out of the office and away from attorney–client matters.

Notes

  1. William Hazlitt, Political Essays, Times Newspaper, 1819.
  2. Reporter’s commentary to Model Rule 8.1(j) (Client-Lawyer Sexual Relationships), available at www.abanet. org/cpr/e2k-rule18rem.html.
  3. Id.
  4. 654 A.2d 1285 (D.C. 1995).
  5. Attorney Grievance Comm’n of Maryland v. Goldsborough, 330 Md. 342, 624 A.2d 503 (1993).
  6. The attorney also had knowingly made a false statement in the disciplinary proceeding in violation of Rule 8.1.
  7. The Maryland court had imposed an indefinite suspension with a right to reapply after two years.
  8. 719 A.2d 95 (D.C. 1998).
  9. 724 A.2d 1210 (D.C. 1999).
  10. Id. at 1211.
  11. Id. (emphasis added). The court recently reiterated its desire to use reciprocal cases to develop substantive disciplinary law here. In re Childress, No. 01-BG-1207 (D.C. Dec. 5, 2002).
  12. 794 A.2d 605 (D.C. 2002).
  13. Id. at 606.
  14. Id. at 607.
  15. 772 A.2d 1161 (D.C. 2001).
  16. Id. at 1171.
  17. Id. at 1172.
  18. 579 A.2d 190 (D.C. 1990) (en banc).

Disciplinary Actions Taken by the Board on Professional Responsibility
IN RE BERNARD BETTIS. 7600 Georgia Avenue NW, Washington, D.C. November 14, 2002. The board recommends that the court publicly censure Bettis. In a case involving two separate complaints that were consolidated in a single petition, Bettis failed to record a contingent fee agreement in writing in violation of Rule 1.5(c) in one matter and in another matter failed to disburse settlement funds promptly to satisfy a third party’s lien and placed entrusted funds into an account that was not designated as an escrow or trust account in violation of Rules 1.15(b) and 1.17(a).

IN RE BRUCE H. HEST. 10632 Mendocino Lane, Boca Raton, Florida. October 31, 2002. In a reciprocal matter from Florida, the board recommends that the court disbar Hest. The Supreme Court of Florida granted Hest’s petition for disciplinary resignation with charges pending, noting that its action was tantamount to disbarment and specifying that Hest would not be eligible to seek reinstatement for five years. The charges pending in Florida included allegations of misappropriation of client funds from an estate (for which Hest had been suspended on an emergency basis), two other matters in which Hest was alleged to have engaged in numerous trust accounting violations including misappropriation of client funds, and charging an excessive fee.

IN RE LEE F. HOLDMANN. 9207 Old Georgetown Road, Bethesda, Maryland. November 7, 2002. In a reciprocal matter from Maryland, the board recommends that the court impose a public censure as nonidentical reciprocal discipline. The Maryland Court of Appeals had imposed a not-to-be-published reprimand based on a Joint Petition by Consent in which Holdmann admitted that he failed to pursue his client’s legal matters diligently and comply promptly with reasonable requests for information in violation of Maryland Rules 1.3 and 1.4(a) and (b). The Maryland court also ordered Holdmann to pay costs in the amount of $8,252.86, but the board declined to recommend payment of costs, citing an absence of such authority here.

IN RE ADRIAN P. IFILL. 1934 1st Street NW, Washington, D.C. November 12, 2002. The board recommends that the court suspend Ifill for one year with reinstatement conditioned on his making full restitution to his client with interest at the legal rate. Ifill failed to represent his client diligently, to keep his client informed about her matter, and to provide a written retainer or fee agreement. He also charged an unreasonable fee, engaged in dishonesty by either knowingly making false statements to his client regarding the viability of her insurance claims or knowingly making such statements without any basis in fact, and engaged in further dishonesty by making false factual representations to Bar Counsel. The board found violations of Rules 1.3(a), (b)(1), and (c), 1.4(a) and (b), 1.5(a) and (b), 8.1(a), and 8.4(c).

IN RE RICHARD H. LAIBSTAIN. Ganey & Laibstain PC, PO Box 646, Ashland, Virginia. October 31, 2002. In a reciprocal matter from Virginia, the board recommends that the court impose identical reciprocal discipline and revoke Laibstain’s license with leave for him to apply for reinstatement after the expiration of five years. The Virginia revocation was based on evidence that Laibstain stole $50,000 from his firm’s escrow account, destroyed records concerning the account, used escrow funds for personal expenses, and commingled his personal and borrowed funds with client funds.

IN RE LEWIS A. RIVLIN. 9701 Barrister Court, Bethesda, Maryland. October 28, 2002. The board recommends that the court disbar Rivlin for misconduct in five matters consisting of commingling client and third-party funds with his own, engaging in dishonesty by repeatedly and knowingly writing checks without sufficient funds, failing to maintain complete records for trust account funds, recklessly and/or intentionally misappropriating client funds, failing to deliver client funds and a complete accounting, failing to advise a client to seek independent legal advice before entering into business transaction with him, engaging in dishonesty by concealing his misappropriation, using misleading letterhead, engaging in conduct that seriously interferes with the administration of justice by failing to respond to Bar Counsel’s inquiries or comply with the board’s order to respond, and failing to respond reasonably to an ethical complaint in writing. The board found violations of Rules 1.8(a), 1.15(a) and (b), 7.5, and 8.4(c) and (d), and D.C. Bar Rule XI, § 2(b)(3).

IN RE MICHAEL J. SMITH. 1 North Pennsylvania Street, Indianapolis, Indiana. October 31, 2002. In a reciprocal matter from New York, the board recommends that the court impose identical reciprocal discipline and publicly censure Smith for failing to respond to a lawful demand for information from a disciplinary authority in violation of Rule 8.1(b). The Appellate Division of the Supreme Court of New York, Second Judicial Department, had publicly censured Smith for failing to cooperate with the grievance committee and failing to reregister with and submit fees and his change of address to the Office of Court Administration.

Disciplinary Actions Taken by the District of Columbia Court of Appeals
IN RE PHYLLIS J. BARON. 600 F Street NW, Washington, D.C. October 10, 2002. The court suspended Baron for 30 days, with the suspension stayed and Baron placed on probation for one year, subject to the condition that she be supervised by a board-appointed monitor who will provide quarterly reports to the Board on Professional Responsibility and Bar Counsel. Baron, who was appointed to represent her client under the Criminal Justice Act, failed to communicate with her client during the entire pendency of his appeal; did not respond to her client’s attempts to communicate with her and ignored the court’s requests that she contact her client; failed to inform her client of or accept an offer by codefendant’s counsel to join in a motion for a new trial; and failed to forward the client’s case file to him until two years after he complained to Bar Counsel. The court, giving deference to the board’s recommendation, found violations of Rules 1.4(a) and (b) and 1.16(d).

IN RE JOHN L. CLARK JR. 4956 Moonfall Way, Columbia, Maryland. November 7, 2002. In a reciprocal matter from Maryland, the court suspended Clark for 90 days, with reinstatement conditioned on his proof of fitness to practice law in the District of Columbia. The Maryland suspension was based on Clark’s failure as an employer to file Maryland income tax returns in a timely manner, to pay trust fund income taxes withheld from employees’ wages, and to maintain a separate ledger account for withholding tax monies.

IN RE JOHN W. COLE. 1360 West Prairie Court, Olathe, Kansas. November 7, 2002. In a reciprocal matter from Kansas, the court suspended Cole for three years, with reinstatement conditioned on his proof of fitness to practice law in the District of Columbia. The Kansas suspension was based on two separate matters. In one matter Coles was suspended for one year for multiple ethical violations, having exhibited a “lack of competence . . . at every stage of the representation.” Thereafter Cole was indefinitely suspended for failing to cooperate with a second disciplinary investigation.

IN RE CRAIG BURGETT DUNBAR. Rhodes, Dunbar & Lomax, 4530 Wisconsin Avenue NW, Washington, D.C. November 27, 2002. The court disbarred Dunbar based upon his conviction of mail fraud in the United States District Court for the Eastern District of Virginia. The court noted that mail fraud is a crime of moral turpitude for which disbarment is mandated by D.C. Code § 11-2503(a) (2001).

IN RE LUCY R. EDWARDS. 3001 Georgia Avenue NW, Washington, D.C. October 3, 2002. The court held that substantial evidence of record did not support the board’s findings that Edwards had committed three of the four charged misappropriations. The court remanded the matter to the board for further proceedings to reconsider whether Edwards’s handling of clients’ funds in the one case involving misappropriation and commingling of entrusted funds, which was supported by the record, displayed a reckless “disregard for the [funds’] safety and welfare.”

IN RE RICHARD L. FIELDS. Fields & Fields, 5620 Saint Barnabas Road, Oxon Hill, Maryland. October 10, 2002. The court disbarred Fields by consent.
IN RE DANA W. JOHNSON. 7504 Burgess Lane, Fort Washington, Maryland. November 27, 2002. In a reciprocal matter from Maryland, the court disbarred Johnson. The Maryland court disbarred Johnson after concluding that he “repeatedly engaged in conduct involving dishonesty, fraud, deceit, and misrepresentation” in violation of Maryland Rule of Professional Conduct 8.4(c), as well as violations of Maryland Rules 1.7(b) (conflict of interest), 3.3(a)(1) (candor toward the tribunal), 5.5(a) (unauthorized practice of law), and 8.4(d) (conduct prejudicial to the administration of justice), among other rules. Among other things, Johnson filed a bankruptcy petition without the knowledge or consent of his putative clients, forging signatures and fabricating information in the process, to forestall a mortgage foreclosure on property he had contracted to purchase.

IN RE JEFFREY M. LAUB. Global Credit, 1901 Research Boulevard, Rockville, Maryland. November 14, 2002. The court disbarred Laub based upon his conviction of mail fraud in the United States District Court for the District of Maryland. The court noted that mail fraud is a crime of moral turpitude for which disbarment is mandated by D.C. Code § 11-2503(a) (2001).

IN RE PATRICK H. MCCARTHY. 5851 Potomac Avenue NW, Washington, D.C. October 10, 2002. The court disbarred McCarthy by consent.

The Office of Bar Counsel compiled the foregoing summaries of disciplinary actions. Reports and recommendations issued by the Board on Professional Responsibility, as well as informal admonitions issued by the Office of Bar Counsel, are posted on the D.C. Bar Web site at www.dcbar.org. Court opinions are printed in the Atlantic Reporter and, for decisions issued since mid-1998, are also available online. To obtain a copy of a recent slip opinion, visit www.dccourts.gov/internet/opinionlocator.jsf. Please note that in some cases Bar members may have the same name. To confirm the identity of individuals who have been subject to discipline, contact the D.C. Bar Member Service Center at 202-626-3475 or membership@dcbar.org.