January 29, 2010
Attorney Did Not Violate Sex With Client Rule: Never Met Client
The West Virginia Supreme Court imposed a reprimand with two years probation and other conditions in a disciplinary matter involving two complaints. One matter involved allegations of neglect and failure to communicate with a prison inmate client. The attorney had completed the terms of his appointed representation and continued to provide some free legal services. The court concluded that he had not violated these obligations.
The attorney had engaged in a "flirtatious correspondence" with the client, whom he never met in person. The court rejected these facts as the basis of a "sex with client" violation but found the behavior improper:
Rule 8.4(g) of the Rules of Professional Conduct provides that it is professional misconduct to “have sexual relations with a client whom the lawyer personally represents during the legal representation unless a consensual sexual relationship existed between them at the commencement of the lawyer/client relationship.” Based on the plain language of Rule 8.4(g), we find that [the attorney] did not have “sexual relations” with [the client]. Rule 8.4(g) defines “sexual relations” as:
. . . sexual intercourse or any touching of the sexual or other intimate parts of a client or causing such client to touch the sexual or other intimate parts of the lawyer for the purposes of arousing or gratifying the sexual desire of either party or as a means of abuse.
[The attorney] and [the client] never physically met each other. Their relationship existed solely through telephone calls and letters. [He] never attempted to physically have sexual intercourse with [her] or touch her in any manner. [His] telephone calls and letters implied the possibility of having a romantic relationship with [her] at some future date. This conduct does not rise to the level of “sexual relations” as defined by Rule 8.4(g).
However, [his] flirtatious remarks were misconduct under Rule 8.4(a), because they were an attempt to establish a sexual relationship with his client. We condemn this conduct and find that [his] behavior was inappropriate and prejudicial to the administration of justice because his client was incarcerated and in a vulnerable position. Under the circumstances, [The client] might have felt obligated to respond to [his] flirtatious overtures to ensure that he would fully pursue her interests in the divorce proceeding. We therefore agree with the Board's finding that [his] behavior was also a violation of Rule 8.4(d) of the Rules of Professional Conduct.
The other matter involved escrow violations. (Mike Frisch)
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