Sexual Conduct With Murder Defendant Draws Five-Year Suspension

A five-year suspension of an attorney has been imposed by the New York Appellate Division for the Second Judicial Department.

Charge one alleges that the respondent employed coercion, intimidation, or undue influence in entering into sexual relations incident to his professional representation of a client, CL, in violation of rule 1.8(j)(1)(ii) of the Rules of Professional Conduct (22 NYCRR 1200.0). In March 2017, the respondent was appointed to represent CL following her indictment on charges of murder in the second degree. In March 2017, CL pleaded not guilty to the murder charge and, pending trial, she was remanded to the custody of the New York City Department of Correction and housed at Rikers Island. Thereafter, representatives of the Women’s Prison Association met with CL and prepared a background narrative of her, which was provided to the respondent. This narrative revealed that CL was a survivor of childhood and adult sexual trafficking and was certified by New York State as a trafficking survivor. Upon receiving this information, the respondent filed a motion seeking CL’s release from custody, which was granted upon the condition that CL live with her mother upon her release. CL agreed to the condition and was released from custody on April 3, 2020.

Subsequent to CL’s release from custody, the respondent learned that CL was not living with her mother, in violation of CL’s conditional release. The respondent telephoned CL and sent her text messages. In an exchange of text messages in September 2020, CL sent the respondent pictures of herself in which she was partially clothed. The respondent replied via text that additional pictures should be sent. CLcomplied with the respondent’s request, to which the respondent replied that he was physically aroused. The respondent and CL agreed to meet at the respondent’s office on September 21, 2020. At this meeting, they discussed the respondent’s filing of a civil suit on CL’s behalf and the terms of a written retainer agreement related to the civil suit. Also at this meeting, CL performed an act of fellatio on the respondent.

Special Master's findings in part

“In their relationship, the respondent was powerful. He got her out of jail, was helping her obtain money if the civil action was successfully resolved and might keep her out of prison for breaching the Court’s order which had allowed her to be released from Rikers if she stayed with her mother. CL had only one way to encourage Respondent to continue to zealously represent her, and she used her ability gained as a sex worker to pay.”

Sanction

We find that CL’s status as a victim of childhood and adult sex trafficking made her a vulnerable client. She was facing homicide charges at the time the respondent represented her, and when the respondent contacted CL, he knew that she was violating her terms of her pretrial release. In her report, the Special Referee noted that the respondent was in a position of power, that he had helped obtain CL’s release from jail, that he was aiding her in obtaining an attorney for her civil action, and that he could help prevent CL from being returned to custody for breaching the terms of her pretrial release. These circumstances were compounded by the potential prison sentence that CL faced if convicted of the top count of the indictment. Consequently, by engaging in sexual text messaging and relations with CL, under the circumstances as occurred here, the respondent violated rules 1.8(j)(1)(ii) and 8.4(h) of the Rules of Professional Conduct.

In determining an appropriate measure of discipline, this Court considered, inter alia, the challenging life circumstances described by the respondent, the remedial measures implemented, and his pro bono work. We have considered also in mitigation the substantial character evidence presented.

Under the totality of the circumstances, including the vulnerability of CL and the opportunities the respondent had to end the inappropriate communication rather than escalate it to physical contact, we find that the respondent’s conduct warrants his suspension from the practice of law for a period of five years.

(Mike Frisch)