Disbarment For Jailhouse Sex

The Florida Supreme Court has ordered an attorney’s disbarment, rejecting a referee’s proposed 18-month suspension for sex with incarcerated clients

In reviewing a referee’s recommendation as to discipline, the Court’s scope of review is broader than that afforded to the referee’s findings of fact, because it is ultimately the Court’s responsibility to determine the appropriate discipline. Fla. Bar v. Anderson, 538 So. 2d 852, 854 (Fla. 1989). However, the Court will generally approve the referee’s recommendation if it has a reasonable basis in existing case law and the Florida Standards for Imposing Lawyer Sanctions. See Fla. Bar v. Temmer, 753 So. 2d 555, 558 (Fla. 1999). Furthermore, the Court has moved toward imposing harsher sanctions, see Florida Bar v. Herman, 8 So. 3d 1100, 1108 (Fla. 2009), and has stated that it “will strictly enforce the rule against lawyers engaging in sexual conduct with a client that exploits the lawyer-client relationship.” Fla. Bar v. Bryant, 813 So. 2d 38, 44 (Fla. 2002); see Fla. Bar v. Samaha, 557 So. 2d 1349, 1350 (Fla. 1990) (“Even the slightest hint of sexual coercion or intimidation directed at a client must be avoided at all costs.”). Finally, the approval or disapproval of the consent judgment is a matter for the Court’s discretion. See R. Regulating Fla. Bar 3-7.9(c)

Based on the parties’ consent judgment, the referee recommended that Respondent be found guilty of violating Bar Rules 3-4.4 (Misconduct), 4-8.4(a) (a lawyer shall not violate or attempt to violate the Rules of Professional Conduct), 4-8.4(b) (a lawyer shall not commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects), and 4-8.4(i) (a lawyer shall not engage in sexual conduct with a client or a representative of a client that exploits or adversely affects the interests of the client or the lawyer-client relationship). As provided by the consent judgment, the referee also recommended an eighteen-month suspension, that Respondent complete The Florida Bar’s Ethics School as a condition precedent to reinstatement, that Respondent contact Florida Lawyers Assistance, Inc. (FLA, Inc.) to schedule an evaluation and to abide by all recommendations made by FLA, Inc., and that he be assessed costs in the amount of $1,688.51.

The facts underlying the disciplinary proceedings are as follows. On September 16, 2016, Respondent was arrested and charged with battery pursuant to section 784.041(1)(a), with solicitation of prostitution pursuant to section 796.07(2)(f), and with exposure of sexual organs pursuant to section 800.03, Florida Statutes (2016), in Duval County, Florida. According to the Arrest Warrant Affidavit, on September 3, 2016, Respondent visited two female clients that he was representing in criminal matters while they were incarcerated at the Pretrial Detention Facility. In adjacent rooms at the detention facility, Respondent and the women engaged in sexual activities initiated by Respondent. Respondent solicited the sexual conduct with one client by depositing money into her personal bank account and with the other client by promising free or discounted legal services designed to achieve a reduced jail sentence. On May 25, 2017, Respondent entered into a plea agreement and pled no contest to misdemeanor battery. Respondent’s adjudication was withheld, and he was sentenced to one day in jail with credit for time served and unsupervised probation and ordered to pay costs. Respondent voluntarily sought treatment from FLA, Inc. On January 2, 2018, the Court issued an order directing Respondent to show cause why the referee’s recommended sanction should not be disapproved and a more severe sanction, up to and including disbarment, be imposed.

Sanction

With regard to existing case law, we conclude that disbarment, rather than a suspension, is reasonably supported. First, the referee’s reliance upon the three cases is misplaced, for the following reasons: Boone does not have precedential value because the case was uncontested and the opinion did not include any substance or facts; Bryant and Samaha were decided sixteen and twenty-eight years ago, respectively; and the published opinions are distinguishable from Respondent’s conduct. For example, in Bryant, a one-year suspension was imposed where the attorney entered into a sex-for-fee arrangement with a client upon the client’s suggestion, and the sexual relations did not occur while the client was imprisoned. In Samaha, a one-year suspension was imposed where the attorney, under the guise of preparing for a personal injury action, touched his client on her back and thighs without her approval, and photographed her while she  was partially nude. In this case, Respondent propositioned two clients and engaged in sexual relations while the women were both incarcerated.

Instead, the following case law supports Respondent’s disbarment. In Florida Bar v. McHenry, 605 So. 2d 459 (Fla. 1992), the attorney met with a client in his office and under the guise of conducting a physical examination, touched her neck, arms, rib cage, and back. He then sat at his desk and made motions with his arm and body that were consistent with the act of masturbation. In a separate meeting with a different client, the attorney, while in his office, masturbated in front of his client while speaking with her. The Court discussed that his act of touching the first client constituted battery and his act of masturbating in front of the second client constituted a criminal offense. Here, Respondent was charged with battery, solicitation of prostitution, and exposure of sexual organs. In addition, we distinguished the facts in McHenry from Samaha, on the basis that McHenry committed professional violations involving two separate clients and had previously received two public reprimands…

The Court used the facts and reasoning of McHenry in its decision to impose disbarment in Florida Bar v. Scott, 810 So. 2d 893, 900 (Fla. 2002), where the attorney was disbarred for exposing and fondling himself in front of his client and pulling his client down and ejaculating on her face and blouse. Id. In addition, he called his client a derogatory name and made sexual proposals to her in two subsequent meetings. Id. The Court, in rejecting the referee’s recommendation of an eighteen-month suspension and instead disbarring the attorney, found that the attorney’s conduct was more severe than that in McHenry.

Note: McHenry was the attorney who originally was a party in Florida Bar v, Went For It.

News4Jax reported on the criminal charges.

 A local defense attorney is now facing a criminal charge after he was accused of inappropriate sexual contact with two of his clients, while they were in jail.Anthony Blackburn, 45, was charged with simple battery by the State Attorney’s Office.

Blackburn has been an attorney since 2005 and graduated from Florida Coastal School of Law. Recently, he defended Lonna Barton, mother of toddler Lonzie Barton, in a drug case in Baker County.

According to an affidavit filed by the State Attorney’s Office, Blackburn visited two of his female clients, inmates at the Duval County jail, and while with them in a conference room, he showed them pornographic images.

Those encounters took place Sept. 3, prosecutors said. 

He also had inappropriate sexual contact with the women, prosecutors said. 

Detectives said that behind closed doors and with the lights off, Blackburn pulled up pornographic images on a tablet, made sexual advances on one of his clients, touched her inappropriately and forced her do the same to him.

Another inmate client he visited claimed she had sexual contact with him at the jail, as well.

According to court documents, police got suspicious when a corrections officer noticed Blackburn inside the conference room with one of the women in the dark.

One of the woman said she felt forced to take part in that sexual activity because she felt it would help her get her jail sentence reduced, according to the affidavit.

Investigators said they listened to a recorded phone call from the jail in which she told a friend what happened with Blackburn. Detectives said surveillance video showed Blackburn meeting with the clients at the jail.

Officers arrested Blackburn on Friday.

It was his second arrest in Jacksonville. In 2005, he was charged with DUI.

News4Jax found that Blackburn was suspended by the Florida Bar in 2014 for misconduct. He is currently in good standing with the Bar.

News4Jax went to the address listed for Blackburn’s law firm to get his side of the story, but a woman inside said he didn’t work there anymore. He didn’t return calls requesting comment.

“The allegations are serious, but as of now, it’s still a misdemeanor charge,” said attorney Gene Nichols, who is not involved in the case.

Nichols said Blackburn’s job might be in jeopardy. The charge also has the potential to affect his clients’ current cases.

“Any lawyer who is accused of and subsequently found guilty of a crime could lose their license,” Nichols said. “But they can remove the privilege to practice law whether or not he gets convicted in a criminal court room.”

A judge issued Blackburn a $153 bond and told him he’s not allowed to have any contact with the women involved in the case.

(Mike Frisch)