Wednesday, February 26, 2020

Reprimand Equals Censure

A reciprocal censure has been imposed by the New York Appellate Division for the First Judicial Department

The facts of this matter are undisputed. On July 16, 2018, respondent, represented by counsel, entered into an agreement for discipline by consent with the Arizona State Bar in which he waived his right to a hearing, admitted to professional misconduct, and consented to public discipline in the form of a reprimand. The parties agreed that "the mitigation far outweigh[ed] the aggravati[on," to wit, respondent's personal or emotional problems involving his profound grief over the death of his fiancée, as a result of which he unwisely engaged in the short-term intimate relationship at issue; the fact that he is now receiving grief counseling; his full cooperation with the disciplinary proceeding; his evidence of good character or reputation via three character letters, and his remorse. The parties agreed that given the mitigation and the unique circumstances, a reprimand, rather than suspension, was the appropriate sanction and respondent consented to the imposition of such. By order and decision dated July 19, 2018, the presiding disciplinary judge for the Supreme Court of Arizona accepted the agreement for discipline by consent in full and reprimanded respondent in accordance therewith.

While respondent has not asserted any of the enumerated defenses, none are available to him. He was advised of the allegation against him and, represented by counsel, entered into an agreement in which he admitted his misconduct, waived his right to a hearing, and consented to the proposed discipline. In addition, the finding of misconduct by the Arizona Supreme Court was fully supported by the record. Further, the misconduct for which respondent was disciplined in Arizona would constitute misconduct in New York in violation of our 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 representation).

Sanction

While there do not appear to be any cases in which we have imposed a public censure, the equivalent of the reprimand imposed in Arizona, for an attorney engaged in consensual sexual conduct with a matrimonial client during the course of the representation, we find public censure to be an appropriate sanction in this matter, as it not only gives deference to the sanction imposed in Arizona, but also takes into account respondent's significant mitigation, namely, his grief over his fiancée's suicide (which occurred shortly before the time of his misconduct), his admission of the misconduct, the lack of harm to the client (who reconciled with her husband shortly after), his cooperation with the disciplinary authorities, character evidence, and remorse. Further, the Arizona Supreme Court specifically found that the "sexual relationship did not materially affect the representation," and "there was little injury to the client," as evidenced by her withdrawal of the complaint.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2020/02/reprimand-equals-censure.html

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