“He Had Oral Sex And He Did [A] Bad Job On My Case.”

A suspension of 18 months and until further court order has been imposed by the New York Appellate Division for the First Judicial Department

Charge 1 alleged that respondent failed to enter into a written retainer agreement in a domestic relations matter in violation of rule 1.5(d)(5). In the parties’ joint stipulation of facts, respondent admitted that he failed to execute the required retainer agreement, and during the hearing, he acknowledged that he technically violated the rule, characterizing it as an oversight, since his client lived out of state. However, respondent argued that his failure was unintentional, and since it did not reflect adversely on his fitness, no sanction should be imposed.

With respect to the other charges, in July 2016, respondent was retained by Ms. A. to file a child support modification and to compel the father to sign documents to obtain passports for the minor children. Charge 2 alleged that respondent engaged in a continued pattern of sexting/texting over a period of several months with Ms. A. in violation of rule 8.4(h) (conduct that adversely reflects upon fitness as a lawyer). In the stipulation of facts and at the hearing, respondent admitted that during the representation, over a period of several months, he exchanged texts with his client which contained sexually explicit language and intimate photos. Respondent testified that he was not sure who had initiated the idea of sexting/texting and the exchange of photos, but argued that since these exchanges were consensual, although improper, they did not interfere with his representation, nor did it reflect adversely on his fitness and should not result in a suspension.

While having admitted liability as to charges 1 and 2, respondent vehemently denied liability with respect to charge 3 which alleged that after a court appearance in the child support matter, he and his client Ms. A. went to a stairwell at 111 Centre Street and engaged in physical contact of a sexual nature in violation of rules 1.8(j)(iii) (a lawyer shall not, in domestic relations matters, enter into sexual relations with a client during the course of the lawyer’s representation of the client) and 8.4(h).

Ms. A. testified that her initial complaint against respondent sent to the Committee was based upon his inability to obtain a favorable result in her child support matter and his refusal to refund her retainer and, if he had satisfactorily resolved her case, she would not have complained about the texts, photographs and sexual conduct alleged. In fact, her initial complaint did not mention any claim of sexual contact on March 23, 2017 because it was “more personal,” but it did refer to respondent’s request for photographs of her. After she received respondent’s answer to her complaint, Ms. A. submitted a reply in which she first revealed that respondent “took my money, sex chat me, collected tone (sic) of pictures of my body parts, he had oral sex and he did [a] bad job on my case.” She testified that prior to her reply, the only person she told about the stairwell events was her friend.

Respondent admitted that he knew that “having sexual relations with a client…has always been frowned upon in a domestic relations matter” and that engaging in sexual relations with a client could destroy his career.

With respect to charge 2, the Referee noted that respondent admittedly engaged in a “series of sexually tinged texts with Ms. [A.] over an extended period of time and that these exchanges included intimate photographs of each other” but that respondent had also testified that, at the time, he did not think it was wrong or inappropriate. He also admitted that he responded to the complaint without reading all of the document.

The Referee found that charges 1 and 2 were undisputed in that respondent failed to provide a prior client with a written retainer for his domestic relations matter as required, in violation of rule 1.5(d)(5), and that respondent and Ms. A. engaged in a pattern of sexting/texting inappropriate messages and photos over an extended period of time during his representation of her in a domestic relations matter, in violation of rule 8.4(h).

As to charge 3, based on all the testimony and evidence, the Referee determined that Ms. A. and respondent engaged in sexual conduct – albeit brief, consensual and halted by respondent – on March 23, 2017.

In mitigation, respondent “detailed a litany of family strife that impacted him during this period of representation ….includ[ing] an acrimonious divorce, financial woes including the foreclosure on the mortgage of his home and alleged theft of funds from him and his father by his ex-wife”; he “clearly and repeatedly expressed remorse for his conduct and took responsibility for his actions with regard to…the texting of provocative language and photos” underlying charge 2; and in his 29 years of practice his disciplinary history consisted of only two prior Admonitions he received, one in 1997 for the delayed release of settlement funds and one in 1998 for the neglect of an appeal. Respondent also offered a character letter attesting to his diligence and honesty as an adversary.

The referee’s findings on sanction

“A two year suspension has been deemed appropriate in cases where the improper sexual conduct of the attorney was ongoing, or clearly unwelcomed or coercive. The facts underlying Charge 3 confirm that the events of March 23, 2017 were singular, brief and halted by Respondent. And, indeed, on some level welcomed by the client. However, the admitted conduct underlying Charge 2 continued over an extended period of time.

“Both charges stem from situations that took place during the course of representation in a domestic relations matter where the Court must be particularly mindful of the need to protect clients from any improper overreaching’ by counsel.”

Information concerning the client’s identity was sealed. (Mike Frisch)