Is Sex With A Client A Waivable Conflict? Vermont Finds Violation Where No Written Waiver Was Obtained

The Vermont Supreme Court has disbarred an attorney

The relevant facts as found by the hearing panel are as follows. Respondent was admitted to the Vermont bar and has practiced as a licensed attorney in Vermont since 1999. In 2005, respondent began business as a solo practitioner in Newport, Vermont. Most of respondent’s practice related to family, criminal, and probate law. During the time period at issue, from December 2010 until approximately April 2013, respondent provided legal services for several female clients relevant to this appeal—C.M., P.B., and A.P. Respondent later employed and engaged in sexual behavior with these former clients. The hearing panel concluded that respondent violated the Rules of Professional Conduct based on his interactions with two of these individuals, C.M. and P.B. The hearing panel found no violations with related to respondent’s conduct with A.P. On appeal, we address whether the panel correctly concluded that respondent’s conduct with C.M. and P.B. violated the Rules of Professional Conduct and, if so, what sanctions are appropriate. We do not consider the allegations with respect to A.P.

Respondent led a complicated life.

A.P. was an opioid-addicted client facing criminal and civil consequences from an automobile fatality. Respondent employed her and masturbated in her presence. She was later charged with embezzlement from his law firm. 

C.M. was a divorce client in strained financial circumstances when the sexual relationship commenced.

Prior to entering the sexual relationship with C.M., respondent discussed with C.M. whether he could ethically enter a sexual relationship with her while representing her in the divorce action, and he told her he believed he could do so. However, respondent did not request or receive a signed written waiver from C.M. acknowledging that she was aware of the risks of engaging in a sexual relationship with respondent while he represented her or authorizing him to do so. Respondent also took steps not to be seen with C.M. in the area of the state where he practiced…

To alleviate C.M.’s financial burden, respondent made several offers to C.M. that she could stay with him at his condominium and hired C.M. as an employee of a tanning salon business that he owned.

Respondent ended the relationship with C.M. very shortly after the final merits hearing in her divorce proceedings in June 2012. They had sexual relations on one occasion during the week following the divorce settlement and one final time in the fall of 2012.

P.B.

In December 2011, P.B. contacted respondent’s office seeking legal advice. Respondent assisted her in connection with several matters, including a pending criminal proceeding in which respondent helped P.B. obtain temporary relief from the conditions of release imposed at her arraignment. He did not charge P.B. for his legal services. In January 2012, respondent contacted P.B. and offered her a job as an administrative assistant at his law firm. At the time, P.B. was twenty-nine years old, living with her parents, and aspiring to gain admission to a training program to work as a border-patrol agent.

She suffered from PTSD and ADHD. 

P.B. began working for respondent in January 2012 and received her last paycheck in January 2013. Over the course of her employment, P.B. experienced various difficulties relating to respondent. Relevant to the panel’s analysis and the issues on appeal are incidents where respondent tossed paperclips at P.B.’s cleavage, masturbated in her presence, and requested that she sign a contract in September 2012 indicating their relationship was “mutually welcome” and waiving any future claims against respondent.

Always the lawyer.

The panel made further findings that, in late July 2012, while respondent and P.B. were together in the law office, an incident occurred during which, at respondent’s request, P.B. unbuttoned her shirt, exposed her bra, and lowered her bra strap while respondent proceeded to masturbate to ejaculation in his pants. Respondent asked her to pull on his tie while he masturbated; P.B. did so. That evening, after the incident, P.B. went home and “broke down” in front of her mother while explaining what had happened with respondent. On August 7, 2012, P.B. sent an email to respondent stating that she felt disrespected and planned to stop coming to work due to respondent’s actions. Respondent replied that he never intended to make P.B. uncomfortable and that he would be happy to speak with her about her concerns. Following this exchange, P.B. and respondent revisited signing a contract to outline the boundaries of their personal and professional relationships—an issue that had been developing for several months…

In May or early June 2012, respondent told his step-father about his interest in pursuing a romantic relationship with P.B. and was encouraged to “get something in writing” indicating that the relationship was consensual. Soon thereafter, respondent and P.B. participated in a conference call with respondent’s step-brother, who is also an attorney. During the call, respondent asked his step-brother to draft an agreement reflecting that the relationship was “mutual and welcoming” and containing a release of any sexual harassment or gender-discrimination claim, preventing P.B. from alleging either claim in the future. Respondent’s step-brother drafted the agreement entitled “Notice of Intent to Engage in Mutually Welcomed Romantic Relationship and Waiver of Claims” and provided it to respondent, who gave a copy of the agreement to P.B. Notably, the contract provided a waiver by P.B. of “any and all” state and federal law claims of sexual harassment or gender discrimination against respondent—apparently including future as well as past claims. The panel found that P.B. “was confused and intimidated by the conference call, had a hard time following the discussion and understanding the issues, and did not understand the need for a written agreement.” Neither party signed the agreement at this point; no further action was taken regarding the agreement until the fall of 2012, following the masturbation incident.

After the masturbation incident and email exchange between respondent and P.B., respondent asked his step-brother to revise the contract. In September 2012, respondent and P.B. discussed and signed the contract. No witnesses were present, and P.B. did not have an attorney. The panel found that P.B. “believed from her discussion with respondent that they needed to sign the agreement to satisfy [r]espondent’s father and that it was required of her to continue working for [r]espondent.” The panel further found that “[r]espondent did not advise [P.B.] to obtain independent legal advice with respect to the agreement.”

A.P. filed a sex harassment complaint with the State police. 

The extensive Hearing Panel findings and recommendation is linked here. 

A threesome incident with a client and P.B. – apparently it was P.B.’s idea- is recounted in the findings.  Further, the findings show that Respondent dumped C.M. for P.B. 

Notably, the victims are identified by name rather than initials. 

The court found the conduct violated Rule 1.7

Regarding respondent’s mental state in this case, the panel concluded that respondent knowingly violated Rule 1.7 because he “knowingly entered into a sexual relationship with [C.M.] while he was representing her in the divorce action.” (Emphasis added.) Respondent argues that, while “his judgment was mistaken, . . . his failure to recognize a significant risk of conflict was negligent, not knowing” when he reviewed comment 17 of the Rules of Professional Conduct with C.M. and believed he could avoid a conflict. However, the panel concluded that respondent did not act negligently because his failure to conduct adequate legal research on conflicts of interest did not diminish his state of mind. We agree with the panel’s conclusion.

And Rule 4.3

respondent knowingly presented the 2012 contract to P.B. and asked her, an unrepresented individual unsophisticated in legal matters, to sign the contract and waive any and all sexual harassment or discrimination claims against him—past or future. Respondent never clarified that he was not representing P.B.’s interests in the transaction, but was, in fact, representing his own, and he did not advise her to seek counsel to protect her interests. While respondent’s failure to suggest that P.B. obtain independent counsel could be couched as a careless omission, respondent’s request that P.B. formally waive any claims against him by signing the 2012 contract was most certainly presented and executed “with the intent to obtain a benefit” for respondent—protection from future suit or liability.

The court rejected a Rule 8.4(d) (conduct prejudicial to the administration of justice) but concluded that the finding of uncharged misconduct did not affect its sanction analysis.

As to Rule 8.4(g)

Finally, the panel concluded that respondent violated Rule 8.4(g), which states, “[i]t is professional misconduct for a lawyer to . . . discriminate against any individual because of his or her . . . sex . . . in hiring, promoting or otherwise determining the conditions of employment.” V.R.Pr.C. 8.4(g).  In so concluding, the panel determined that: (1) respondent’s conduct toward P.B.—including the paperclip incident and the masturbation incident—created a hostile work environment tantamount to sexual harassment; and (2) the waiver clause in the September 2012 agreement constituted quid pro quo sexual harassment because it implicitly conditioned P.B.’s employment upon submitting to unwanted sexual advances “by placing [P.B.] in a position where she could not as a practical matter assert a claim of discrimination or harassment against her employer going forward.” We agree that respondent’s actions violated Rule 8.4(g) by creating a hostile work environment for P.B. and implicitly conditioning P.B.’s future employment on her agreement not to file future discrimination and sexual-harassment claims.

Footnote

We do not conclude that asking an employee to sign a voluntary acknowledgement of a consensual relationship always amounts to quid pro quo harassment. However, in this case, there is sufficient circumstantial evidence to support the inference that P.B. reasonably believed that signing the agreement, and submitting to respondent’s unwanted sexual advances without recourse, was a condition of her employment.

Sanction

These findings demonstrate that, on more than one occasion, respondent targeted vulnerable individuals and engaged in activity contrary to our Rules of Professional Conduct; we weigh this heavily in our sanction determination.

Delay did not mitigate

Here, considering (1) the aggravating circumstances due to the vulnerability of the victims and respondent’s pattern of misconduct; (2) the comparatively minimal impact of the mitigating factors; (3) the potential injury and actual harm that respondent’s conduct has caused to C.M., P.B., and public perception of the legal practice; and (4) comparisons of the offenses and facts present in this case with other similar cases in which suspension or disbarment was imposed in Vermont and in other jurisdictions, we adhere to the presumptive sanction and order the maximum penalty permitted by our rules—disbarment.

VTDigger reported on the recommended sanction. 

Robinson is the stepson of former Attorney General M. Jerome Diamond, and the stepbrother of Deputy Attorney General Joshua Diamond, who drafted an agreement for Robinson that played a role in the board’s ruling.

Commonly known as a Consensual Relationship Agreement — or “love contract” — the agreement was between Robinson and a female employee, P.B.

Diamond had written a first draft of the agreement at Robinson’s request in 2012, long before he joined the attorney general’s office. The board found that Diamond committed no wrongdoing in drafting the agreement for his stepbrother. Diamond has expressed regret for his involvement in the matter.

In the agreement P.B. promised not to pursue legal action against Robinson if the sexual relationship in which they were engaged ended badly. Robinson made some changes in the language of the agreement before he and P.B. signed it.

Question: Is sex with a client a waivable conflict? 

Vermont’s version of Rule 1.8 at the time – in contrast to the ABA Model Rules – did not have a specific sex with client prohibition. (Mike Frisch)