Sex Was Ethical; Lie Was Not But Over Dissent: “The Practice Of Law Is Not A Dating Service”

The West Virginia Supreme Court of Appeals has admonished an attorney who had agreed to accept a 60-day suspension.

The Hearing Panel Subcommittee (HPS) of the Lawyer Disciplinary Board (LDB) found that Respondent Sarah Campbell violated two provisions of the West Virginia Rules of Professional Conduct and recommended that she be admonished and ordered to pay the costs of these proceedings. Ms. Campbell does not challenge the recommendations of the HPS; however, the Office of Disciplinary Counsel (ODC) of the LDB objected to the sanctions. This matter comes before this Court upon the objections of the ODC.

Based upon the parties’ stipulations, the ODC asserts that the appropriate sanction is a suspension of Ms. Campbell’s license to practice law for sixty days with automatic reinstatement, six months of supervised practice following her suspension, and that she be required to pay the costs of these proceedings.

In order to resolve this case, we must consider whether a sexual relationship between an attorney and her client predates the attorney-client relationship. Given the long history of the relationship in this case, we find that it does.

Even so, this Court finds that there is clear and convincing evidence to support the findings of the HPS that Ms. Campbell violated Rules 4.1 and 8.4(c) of the Rules of Professional Conduct because she misrepresented to her supervisor the nature of her relationship with a client. For the reasons explained below, we adopt the sanctions recommended by the HPS.

The attorney is a public defender appointed to defend her client

In 2002, Ms. Campbell and Mr. H began a romantic relationship; at the time, she was fourteen and he was sixteen years old.  In 2003, this relationship became sexual and continued intermittently until December 2013, when both parties decided to pursue other romantic partners.

In October 2013, Ms. Campbell was admitted to practice law in West Virginia and began working for the Nicholas County Public Defender’s Office. In April 2014, having practiced law for only six months, Ms. Campbell was appointed to represent Mr. H. in an abuse and neglect proceeding.  Shortly thereafter, Mr. H. was arrested on felony charges stemming from the abuse and neglect proceeding and Ms. Campbell was again appointed to represent him.

That same month, due to the nature of their relationship and fully complying with her obligations under Rule 1.7(b), Ms. Campbell initiated a discussion with Mr. H. about her continued representation.  Mr. H. verbally waived the conflict and asked Ms. Campbell to continue representation, adding that he believed it would “lead to more zealous representation.”

In September 2014, Mr. H. told Ms. Campbell he was in love with her and asked her to restart the relationship. At that time, Ms. Campbell advised Mr. H. that they should speak with her supervisor, Chief Public Defender Cynthia Stanton, to make her aware of the preexisting sexual relationship. Mr. H. insisted on seeing Ms. Stanton alone and Ms. Campbell obliged.

During this private meeting, Mr. H. told Ms. Stanton that he was in love with Ms. Campbell, but failed to disclose the prior relationship or that Ms. Campbell had feelings for him as well. As a result, Ms. Stanton believed that Mr. H. was merely asking for permission to date Ms. Campbell. At the same time, Mr. H. led Ms. Campbell to believe that he told Ms. Stanton everything about the preexisting relationship and that she was fine with its continuance. During this meeting, Ms. Stanton did not question Ms. Campbell about the relationship and Ms. Campbell did not inquire as to the extent of Ms. Stanton’s knowledge of it. Still operating on inaccurate information, Ms. Stanton advised Ms. Campbell that she did not believe a judge would grant a motion to withdraw from representation of Mr. H. and that she believed continued representation would be appropriate.

Ms. Campbell met again with Mr. H. and indicated for a second time that he could request new counsel, but informed him that she did not have a problem moving forward with representation. Shortly thereafter, Ms. Campbell and Mr. H. resumed sexual relations. From roughly October 2014 until May 2015 (when Mr. H. was indicted), aside from appointments related to his case, Ms. Campbell saw Mr. H. socially a maximum of five or six times.

Police discovered the relationship during a home detention check and told the assistant prosecutor, whose boss reported it to the ODC purportedly to comply with Rule 8.3. 

Prior to filing his complaint with the ODC, Assistant Prosecutor White advised Ms. Stanton of the allegations. Ms. Stanton contacted Ms. Campbell by telephone and asked if the allegations were true, alerting her that her job depended on the response. Ms. Campbell denied having a sexual relationship with Mr. H. Immediately thereafter, Ms. Campbell filed a motion to withdraw as Mr. H.’s counsel and Assistant Prosecutor White filed the disciplinary complaint against Ms. Campbell.

The attorney denied misconduct

In a May 2016 sworn statement, Ms. Campbell addressed the misrepresentations made to Ms. Stanton and denied violating the Rules of Professional Conduct, stating that the relationship began when the two were in junior high school and continued intermittently until 2013, when it dissipated but did not end.

As to the bar charges

However, as previously stated, the HPS concluded that Ms. Campbell did not violate any of the rules alleged by the LDB. The HPS found no violation of Rule 1.7, deeming it sufficient that Ms. Campbell had consulted with Mr. H. and obtained his consent for the representation, and because there was no evidence that Ms. Campbell’s representation of Mr. H. was materially limited by her personal interest. The HPS further concluded that Ms. Campbell did not violate Rule 1.8(j), because a consensual sexual relationship had existed for more than ten years at the commencement of the representation. The HPS also concluded that Ms. Campbell did not violate Rule 8.1(a) because, for the reasons stated above, she believed that her client had informed Ms. Stanton of the relationship, and therefore she had not made a false statement. Finally, the HPS concluded that Ms. Campbell did not violate Rule 8.4(d) after finding that the relationship itself was not prohibited.

As for the imposition of an appropriate sanction, the HPS concluded that Ms. Campbell violated two rules, both stemming from misrepresentations made to her supervisor and her actions following those misrepresentations, and further concluded that there were no aggravating factors.

Notably

In addition to the mitigating factors listed above, the HPS was particularly troubled by the fact that the disciplinary complaint was filed by opposing counsel in ongoing litigation. This fact is even more pronounced considering the investigation of the relationship ensued within 24 hours of Ms. Campbell having refused to grant a continuance to accommodate the complainant – the prosecutor – in the case against Mr. H…

After being made aware of the proposed 60-day suspension, Ms. Stanton testified that she would recommend to the Public Defender Corporation that Ms. Campbell be able to continue her employment after her suspension and that she believed Ms. Campbell continued to zealously represent clients.

The HPS report is linked here. 

The court agreed as to ethical sex

as the comments to the rule make clear, “[s]exual relationships that predate the client-lawyer relationship are not prohibited. Issues relating to the exploitation of the fiduciary relationship and client dependency are diminished when the sexual relationship existed prior to the commencement of the client-lawyer relationship.”  Not only does the evidence fail to support a finding that Ms. Campbell took advantage of Mr. H., but the type of longstanding relationship between the two simply does not present the same concerns associated with new relationships that truly begin after representation begins. For these reasons, we conclude that for purposes of Rule 1.8(j), a longstanding and continuous, albeit intermittent sexual relationship, though dormant at the commencement of an attorney-client relationship, is a preexisting relationship.

The court accepted admonishment as the sanction.

Chief Justice Loughery dissented and would find the sex-with-client rule violated

  in an effort to avoid Rule 8.4(g)/1.8(j)’s unambiguous proscription against sexual relations with clients, the subcommittee and the majority try to retrofit the respondent’s actions within the rule’s exception for existing relationships. This effort fails. The plain language of the exception only allows a lawyer to have a sexual relationship with a client if the sexual aspect “existed between them at the commencement of the lawyer/client relationship.” Id. (emphasis added). Both the respondent and Mr. H. testified under oath that they were not engaged in a sexual relationship when the respondent was court-appointed to represent Mr. H. in April 2014. Instead, the respondent testified about having a prior, intermittent sexual relationship with Mr. H. that had “dissipated” by December 2013, a time when they were each dating other people. The respondent admitted there was no sexual conduct between them until late September or October 2014, which was while she was already engaged in the ongoing legal representation of Mr. H.

In an analysis that would be more suited for the readers of a romance novel, the subcommittee theorized about what the respondent’s and Mr. H.’s feelings were, or might have been, about their prior, intermittent relationship. Reasoning that “relationships do not stop and start with mathematical precision,” the subcommittee found that this was an ongoing sexual relationship. Blindly following the subcommittee’s lead, the majority somehow concludes that the respondent is exempt from the prohibition in Rule 8.4(g)/1.8(j). However, the uncontested facts and unambiguous rule language should not be disregarded based upon the subcommittee’s romantic musings.

Rule 8.4(g)/1.8(j) is plainly-worded and free from ambiguity. As such, it is not subject to interpretation or construction.

He would find a concurrent conflict of interest and conduct prejudicial to the administration of justice

A suspension from the practice of law is an appropriate sanction for a lawyer’s sexual misconduct with a client. For example, in Lawyer Disciplinary Board v. Hewitt, No. 35515 (W.Va. Apr. 14, 2011) (unreported order), a lawyer began a sexual relationship with a client and was convicted of misdemeanor trespassing upon the property of her paramour’s ex-spouse. This Court, inter alia, suspended the lawyer from the practice of law for three months. Id.

The respondent’s conduct in this matter was intentional, dishonest, risked harm to her client because she valued her own personal concerns over those of Mr. H., and subjected the practice of law to extreme disrepute. The practice of law is not a dating service; lawyers are expected to maintain their professionalism at all times. In my opinion, for her multiple violations of the Rules of Professional Conduct, the respondent should receive at least the sanction to which she stipulated: a sixty-day suspension from the practice of law, six months of supervised practice, and payment of costs.

From the “romance novel”

When does a relationship begin? When does it end? The former is perhaps easier to answer than the latter but experience teaches us that when a sexual relationship spans over a course of more than ten years, that relationship and the emotional bond which attends it, does not end simply because the parties are not engaging in sexual intercourse at any particular moment in time. And so it has been with Sarah Campbell and Jackie Hall since 2003…

The continuation of the relationship at the commencement of, during and even after the representation was entirely consistent with the history of their relationship up to that time. It was sporadic and intermittent. To say that their relationship ended in December of 2013 and started anew in October of2014, the position advocated by Disciplinary Counsel, simply goes against the grain of human nature and experience. We are not looking at a prior brief encounter where the parties were not invested with emotional bonds. We are looking at a ten-year, plus, relationship. Relationships do not stop and start with mathematical precision and Rules 8.4(g) and 1.80) do not require such a strained interpretation.

Justice Workman joined the dissent. (Mike Frisch)