Friday, September 11, 2020

"The Whole Enchilada"

The Maine Supreme Judicial Court has ordered an attorney's interim suspension after a recent hearing

Following the hearing on September 2, 2020 and upon consideration of the testimony together with the exhibits and materials submitted, as well as arguments of counsel, the court concludes that the submitted evidence supports a finding that Attorney Spurling has committed multiple violations of the Maine Rules of Professional Conduct, specifically at least Rules 1.7(a)(2), 8.1 and 8.4(a), (d) and (g).

The court finds that with his client J.K., Defendant engaged in several instances of touching of her leg of a sexual nature, culminating with unwelcome grasping and touching of her body at the last in-person conference. Defendant also suggested to J.K. that he would like a physical relationship to go further, particularly when he said he would like "the whole enchilada" from her. The touching and sexual innuendo were unwelcome to J.K. although she did not tell Defendant to stop by word or deed. Rather, she was distressed  and discharged him almost immediately thereafter and hired another lawyer.

The court also finds that Defendant made unwelcome sexual advances to another client, K.W. Even if Defendant believed the advances were welcome at the time, it appears that K.W. was substantially incapacitated during the encounter.

Defendant’s conduct with both clients violated Rule 8.4(g). Whether the (unwelcome) sexual touching and advances also constitute "sexual relations" with a client within the strict meaning of Rule 1.8(j),  such conduct violates Rule 1.7(a)(2) with regard to the personal interest of the lawyer. See Bd. of Overseers of the Bar v. Prolman, 2018 ME 128, ¶ 18. It may also be criminal. See supra fn. 2; 17-A M.R.S. § 260. See also Rule 8.4(b).

While Defendant immediately admitted he should not have touched J.K., and "owned" his responsibility at the hearing, the court is not re-assured. In the same testimony in which he put the responsibility squarely on his shoulders, he also testified that he should not have let himself be "handled" or "manipulated" by J.K. The court does not agree that she "handled" or "manipulated" him, and the testimony gives the court pause as to whether Defendant actually understands the problem, including the power imbalance and vulnerability of the client. Similarly, Defendant said he immediately recognized his actions were inappropriate and disappointing, and consulted with MAP as a result. The fact that Defendant talked with MAP on several occasions before he decided to go drinking with another client and try to start a sexual relationship makes it clear to this court that he does not recognize the problem. His insight and honesty are further called into question by the fact that he denied to Bar Counsel that K.W. was a client, despite the fact that she had come to him in his professional capacity and paid the retainer. The response to Bar Counsel violates Rule 8.1.

Under the facts presented by the Board, this court concludes that Attorney Spurling’s misconduct serves as an imminent threat to clients, the public and to the administration of justice. M. Bar R. 24.

The amended order is linked here. (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2020/09/the-maine-supreme-judicial-court-has-ordered-an-attorneys-interim-suspension.html

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