Friday, February 5, 2016

Sex with Client Draws Suspension

From the web page of the Tennessee  Supreme Court notes a decision to increase the length of an attorney's suspension.

The Supreme Court has decided to increase the punishment recommended by a hearing panel to discipline an attorney for sexual misconduct involving a client that he was appointed to represent in a criminal matter and for revealing confidential information of another client to a judge in a different matter.

Robert Vogel, a Knoxville attorney, received a one-year suspension of his law license from a hearing panel of the Board of Professional Responsibility, which oversees attorney discipline. Although the panel imposed the punishment along with several conditions, it agreed that only 30 days was to be served on active suspension, with the remainder to be served on probation. In reaching its decision only to impose 30 days of active suspension, the hearing panel relied upon a number of remedial actions Mr. Vogel undertook in response to his misconduct.

The Supreme Court found the proposed punishment inadequate and instead proposed the punishment be increased. The Court reviewed the case to determine whether the punishment imposed was uniform with prior disciplinary decisions and appropriate under the circumstances of this case. As part of its duty to regulate the practice of law in Tennessee, the Supreme Court bears “the ultimate responsibility for enforcing the rules governing the legal profession.”

While recognizing the same remedial actions noted by the hearing panel, the Court placed less emphasis on those mitigating factors. Instead, the Court focused more heavily on the fact that Mr. Vogel “failed to safeguard the trust of a vulnerable client and exploited his … role” as her attorney, particularly in light of the fact that the client faced serious federal criminal charges. The client was a young woman who continued to use drugs during Mr. Vogel’s representation of her, including during the time period of the multiple sexual encounters. The Court specifically noted that Mr. Vogel pressured the young woman to continue the sexual relationship even after she requested that it stop, and she reluctantly complied. The Court concluded that Mr. Vogel’s conduct represents “a serious violation of the Rules of Professional Conduct and warrants a one-year active suspension.”

Read the unanimous opinion in In re: Robert Lee Vogel, authored by Justice Jeffrey S. Bivins.

The sexual relationship was with a criminal client that he was appointed to represent

Mr. Vogel and Ms. Alford engaged in a sexual relationship during the course of Ms. Alford‘s employment at Mr. Vogel‘s law office. When asked how the relationship developed, Ms. Alford testified that she began ―feeling awkward‖ with Mr. Vogel from the beginning of the representation but that ―it wasn‘t until [Mr. Vogel] got into the new office that he [] more approached [her] and would tell [her] don‘t let his feelings towards [her] interfere with him being [her] lawyer because he was just a man and stuff.‖ During her employment at Mr. Vogel‘s law office, Mr. Vogel would ―constantly call[] [her] into his office,‖ where he would pull her into a ―blind spot‖ between the doors and ask for a kiss. Ms. Alford acknowledged that, although she was not attracted to Mr. Vogel, she would kiss him.

Ms. Alford then described how the relationship progressed. Mr. Vogel would ask her to sit on his lap and to work until 8:00 p.m. Ms. Alford began working later hours, but she testified that ―it was just . . . so [Mr. Vogel] could hang out with [her] . . . because [she] wasn‘t doing much.‖ Nobody else would be present when she was in the office with Mr. Vogel after 5:00 p.m. When asked how she reacted when Mr. Vogel would ask for a kiss or for her to sit on his lap, Ms. Alford answered, ―I mean, I did it. I mean, I was submissive.‖ She did not express her reluctance to kiss Mr. Vogel or to sit on his lap because Mr. Vogel ―held [her] future in his hands.‖ Ms. Alford also noted that she was using drugs during that time. Ms. Alford testified that she and Mr. Vogel engaged in sexual intercourse on three occasions, each initiated by Mr. Vogel. The first and third sexual encounters took place in Mr. Vogel‘s office building in ―the middle bedroom in the upstairs at the back of the building,‖ and the second sexual encounter took place in Mr. Vogel‘s actual office. Each instance of sexual intercourse took place after working hours, and Ms. Alford did not think anybody else would be present in the office.

As to sanction the court noted evidence of a sex addiction but

Ms. Alford was, as the Panel described, a ―young, drug using, court-appointed client who was under federal indictment for drug related charges.‖ By making sexual advances towards Ms. Alford, engaging in a sexual relationship with her, pleading with her on one occasion to engage in a sexual relationship after she expressed her reluctance to do so, and continuing to serve as her attorney, Mr. Vogel failed to safeguard the trust of a vulnerable client and exploited his fiduciary role. This is particularly egregious in this case in light of the questionable consensual nature of the sexual relationship, given Ms. Alford‘s uncontroverted reluctance to continue to engage in sexual relations with Mr. Vogel. In our view, even in considering the mitigating circumstances in this case, Mr. Vogel‘s conduct represents a serious violation of the Rules of Professional Conduct and warrants a one-year active suspension.

(Mike Frisch)

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