Wednesday, April 13, 2016

From Reprimand To Resignation

A Florida public reprimand for having sex with a matrimonial client drew much heavier reciprocal discipline in New York.

The [Departmental Disciplinary] Committee moves for an order imposing reciprocal discipline in the form of a two-year suspension, or, in the alternative, sanctioning respondent as this Court deems appropriate. In response, respondent requests that he be permitted to resign pursuant to 22 NYCRR 603.11.

The Appellate Division for the First Judicial Department ordered accepting the attorney's offer of resignation.

The facts

The Florida Bar filed a complaint against respondent in 2013, charging him with engaging in misconduct by having sexual relations with a matrimonial client during the course of the representation. In 2014, respondent, represented by counsel, entered into a stipulation and consent judgment whereby he admitted that, inter alia, a client retained him in 2008 to represent her in a dissolution of marriage proceeding, and that in 2009 "he did engage in one isolated and consensual improper personal encounter with [his client] at the time that her case was concluding." He consented to a public reprimand and agreed to pay the costs incurred by the Florida Bar in connection with the disciplinary proceeding. The Supreme Court of Florida approved in full an uncontested Referee's report — recommending discipline in accordance with the stipulation and consent judgment — and publicly reprimanded respondent by order dated April 10, 2014.

 Clearly a reprimand would not be imposed  in New York

We find that respondent's misconduct contravenes New York's strong public policy prohibiting lawyers from engaging in sexual relations with clients in domestic relations matters during the course of their representation (see Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.8[j][1][iii] ["A lawyer shall not . . . in domestic relations matters, enter into sexual relations with a client during the course of the lawyer's representation of the client"]). Although this Court noted in 1991 that "no jurisdiction in the United States ha[d] adopted an ethical code provision expressly proscribing sexual involvement between a lawyer and a client, whether the representation involves a matrimonial matter or otherwise" and that the disciplinary rules then in effect "contain[ed] no such prohibition" (Edwards v Edwards, 165 AD2d 362, 368 [1st Dept 1991]), this is clearly no longer true (and has not been for quite some time).

In 1993, the late Chief Judge Judith S. Kaye "announced sweeping changes" to matrimonial practice, including the prohibition of "sexual relations between attorney and client during the course of representation" (Edward A. Adams, Divorce Law Reforms Unveiled, NYLJ, Aug. 17, 1993 at 2, col 4). The rule was approved by the Presiding Justices of all four departments of the Appellate Division following a May 1993 report by the Committee to Examine Lawyer Conduct in Matrimonial Actions, and was incorporated into part 1400 of the court rules (and later moved to DR 1-102[A][7] [22 NYCRR 1200.3(a)(7)] of the Code of Professional Responsibility). Although the rule originally applied only in the context of domestic relations matters, in 1999 restrictions on lawyers' sexual conduct with clients were expanded to include all areas of practice, and the language of the rule was again moved to DR 5-111 (22 NYCRR 1200.29-a)...

"Because domestic relations clients are often emotionally vulnerable, domestic relations matters entail a heightened risk of exploitation of the client. Accordingly, lawyers are flatly prohibited from entering into sexual relations with domestic relations clients during the course of the representation even if the sexual relationship is consensual and even if prejudice to the client is not immediately apparent" (rule 1.8, comment 17).

For these reasons, notwithstanding respondent's position that the improper relationship with his client in the Florida divorce proceeding was an isolated, consensual incident at the time the case was drawing to a close, his misconduct was in clear violation of Rule 1.8(j)(1)(iii) and cannot be ignored. Moreover, although the Committee requests reciprocal discipline, we find that disciplinary resignation is an appropriate resolution of this matter (see Matter of Valley, 123 AD3d 176 [1st Dept 2014]; Matter of Kelly, 226 AD2d 1 [1st Dept 1996]).

The attorney practices in New Mexico. (Mike Frisch) 

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