Tuesday, February 18, 2020

Stayed Suspension For Sex With Client

The Ohio Supreme Court ordered a suspended sanction the sex with a client

In February 2011, M.S. retained Fortado to represent her in a civil matter. Approximately six months later, Fortado commenced an intimate sexual relationship with M.S. Fortado’s legal representation of M.S. concluded in February 2012, with the settlement and dismissal of the action filed against M.S. After their intimate relationship concluded in the fall of 2014, Fortado represented M.S. in two other civil matters. Their relationship remained friendly until 2016, when M.S. discharged Fortado as her attorney in a personal-injury case. Fortado testified that M.S. initiated the intimate relationship by making repeated friendly overtures toward him and that he truly cared—and continues to care—for her. But he also admitted without qualification that it was wrong for him to have entered into the intimate relationship while he represented M.S.

Sanction

Based on the unique facts of this case—including the absence of any evidence of coercion, Fortado’s acceptance of responsibility for his wrongdoing, his full cooperation in these proceedings, and his strong character and reputation evidence—and having carefully considered the sanctions we have imposed in other cases involving similar misconduct, we sustain Fortado’s objection to the board’s recommended sanction. Moreover, we agree that a conditionally stayed one-year suspension is the appropriate sanction for Fortado’s misconduct....If Fortado fails to comply with the condition of the stay, the stay will be lifted and he will serve the entire one-year suspension.

Justice Kennedy dissented

Because it is per se professional misconduct when an attorney abuses the attorney-client relationship by commencing a sexual relationship with a client and our caselaw establishes that an actual suspension from the practice of law is the appropriate sanction for that misconduct, I would adopt the recommendation of the Board of Professional Conduct and suspend respondent, Matthew Fortado, from the practice of law for one year, with six months stayed on the condition that he engage in no further misconduct. Therefore, I dissent.

Client vulnerability

The inherently unequal power dynamic between Fortado and his client is apparent on the record, but the majority nonetheless credits his testimony that he and the client shared a “committed relationship” without ever having heard the client’s side of the story.

Justice Fischer joined the dissent. (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2020/02/the-ohio-supreme-court-in-february-2011-ms-retained-fortado-to-represent-her-in-a-civil-matter-approximately-six-months.html

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