Thursday, October 24, 2019

Sex Talk With Client Isn't Sex (But It Is Still Unethical)

The West Virginia Supreme Court of Appeals imposed a longer suspension than that proposed by its hearing panel subcommittee

Upon careful review of the record submitted, the parties’ briefs and oral arguments, and the relevant law, this Court disagrees with the recommendations of the HPS, and finds that harsher sanctions are warranted. We also find that Mr. Sayre did not violate Rule 1.8(j) of the West Virginia Rules of Professional Conduct.

The attorney had engaged in misconduct in handling criminal appeals and  also 

Mr. Sayre represented L.S., who entered a plea of guilty to the offense of possession of a controlled substance. L.S. was sentenced to a period of six months of imprisonment, but the court ordered the sentence suspended for probation for a period of three years. On April 27, 2017, Judge Jason Wharton, in his capacity of Chief Judge of the Circuit Court of Wood County, met with the adult probation officer to discuss the status of L.S., who was on supervised probation. The probation officer conducted a search of L.S.’s phone and found that, during the course of the probation, Mr. Sayre and L.S. had engaged in multiple inappropriate conversations on Facebook messenger in February and March 2017, during the period when L.S. could have filed a motion for a reconsideration of her sentence.

The judge notified the Office of Disciplinary Counsel

In his verified response, Mr. Sayre advised that he considered his representation of L.S. concluded after the entry of her guilty plea. As to the allegations, Mr. Sayre admitted to exchanging text messages that are “mutually suggestive of sexual conduct” and stated that the two “discussed having sex” and other matters that he appreciates to be “inappropriate” but denied ever having physical contact with L.S.

The court

In this case, Mr. Sayre willfully and voluntarily entered into factual stipulations and admitted that his conduct was in violation of the Rules of Professional Conduct. Accordingly, we focus our analysis of this matter on the proper sanctions to be imposed...

Here, the parties stipulated to the fact that Mr. Sayre’s actions violated duties to his clients, the public, and the legal profession. Specifically, Mr. Sayre recognized that he breached his duty to his clients by failing to promptly address his clients’ rights to appeal, by failing to keep his clients informed, by failing to communicate with his clients, and by failing to provide competent representation.

The balance of factors

Our review of this case reveals that Mr. Sayre committed violations of all of the Jordan factors. He repeatedly failed to provide competent and diligent representation to his clients when he failed to timely perfect his clients’ appeals, and he violated the Rules of Professional Conduct when he intentionally and knowingly engaged in inappropriate and sexually suggestive communications with his client. According to Standard 4.42 of the Annotated ABA Standards for Imposing Lawyer Sanctions, “[s]uspension is generally appropriate when a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client; or a lawyer engages in a pattern of injury or potential injury to a client.” As such, we agree that suspension is an appropriate punishment for Mr. Sayre’s misconduct regarding his deficient representation of clients, and his inappropriate communication with a client.

The ethics of sex talk

However, in addition to Mr. Sayre’s transgressions in filing and perfecting appeals, he also attempted to initiate a sexual relationship with a current client, in violation of Rules 8.4(a) and (d). Although a physical relationship never resulted, Mr. Sayre did acknowledge that he knowingly engaged in inappropriate and sexually suggestive communications with the intent of initiating a sexual relationship with his client. Among the cases in West Virginia dealing with sexual relationships involving lawyers and clients, and attempts to initiate such behavior, the sanctions have varied. See, e.g., Lawyer Disc. Bd. v. Stanton, 233 W. Va. 639, 760 S.E.2d 453 (2014) (lawyer’s license to practice law suspended for three years after having sexual relationships with incarcerated female clients); Lawyer Disc. Bd. v. Artimez, 208 W. Va. 288, 540 S.E.2d 156 (2000) (lawyer publically reprimanded after contracting with client to obtain a release from all possible claims for professional misconduct after having sexual relationship with client’s wife).

But talk alone does not violate the sex with client rule

When considering these facts, we agree that Mr. Sayre’s behavior violated Rule 8.4(a) and Rule 8.4(d), both relating to professional misconduct. However, we do not find that he violated Rule 1.8. The evidence shows, and the parties stipulated, that messages of a sexual nature were exchanged between Mr. Sayre and his client. Nevertheless, there is no evidence to show that “sexual intercourse,” “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 purposes of arousing or gratifying the sexual desire of either party” occurred. Therefore, although we conclude that Mr. Sayre’s behavior was inappropriate and violative of other rules related to misconduct, we find that it does not meet the definition of “sexual relations” as defined in Rule 1.8. However, we do find that his violations of Rules 8.4(a) and 8.4(d) and his inappropriate communications—in conjunction with the other violations discussed above—warrant suspension. In light of these additional violations, we conclude that suspension for one hundred twenty (120) days is appropriate.

(Mike Frisch)

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