Maine High Court Struggles With Sanction For Sex With Vulnerable Client

Sanctions have been imposed by the Maine Supreme Judicial Court in a sexual misconduct matter that had been remanded

This matter is before the Court on remand from the Law Court with a mandate to reconsider and increase the sanction imposed by this Court’s original order of September 14, 2017. Board of Overseers of the Bar v. Prolman, 2018 ME 128, 193 A.3d 808. The Law Court’s opinion stated: “Unanimously, we vacate the judgment and remand the proceedings to the court for the imposition of a sanction that reflects the serious behavior of the attorney and that, at a minimum, would require Prolman to apply for readmission upon demonstration of a thorough understanding of the ethical obligations of a Maine attorney.” Id. ¶ 26.

The “apply for readmission” directive, pursuant to Bar Rule 29(a), means that any actual suspension imposed must exceed the six months suspension originally ordered by this Court. Respecting the Law Court’s direction, the Court proceeds to reconsider the sanction.

No rehash of the misconduct

To avoid an unduly long opinion, the Court at this point adopts and incorporates by reference the findings and conclusions, addressing both the facts and the ethical violations found, stated at pages 5 through 29 of its September 14, 2017, order. The findings and conclusions end, at page 29, with the finding that, “The injury caused by Prolman’s conduct essentially continued and confirmed the pattern of men victimizing and oppressing the client that she had endured for most of her life. He also placed his client at risk by providing her alcoholic beverages that could have caused her probation to be revoked.” The Law Court opinion appears to accept and affirm those findings and conclusions. 2018 ME 128, ¶¶ 2-17.

Precedent on sex  with clients 

To determine how to properly exercise its discretion, or to determine the “presumptive sanction,” this Court must first identify relevant precedents that can guide its discretion in setting a proper sanction for a case involving an attorney with a prior disciplinary history who improperly engages in a sexual relationship with a client.

Respecting the second three-Justice opinion’s observation that the original sanction was “compellingly insufficient,” id. ¶ 54, it is important to look at other ethics violation sanctions imposed in cases involving sexual relations with a client. In this review it must be noted that at the time the acts at issue occurred in 2017, Maine had no professional ethics rule explicitly barring sexual relations with a client. Last fall, the Court adopted Rule of Professional Conduct 1.8(j) stating that: “A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.” 2018 Me. Rules 18 (effective October 26, 2018).

A sparse set of Maine prior cases

In sum, the record of Maine professional ethics cases involving sexual relations with a client from which determination of a “presumptive sanction” or the reasonableness of an exercise of sanctioning discretion could be measured is extremely limited—only two cases with sanctions at either end of the sanctions spectrum: Mangan, a disbarment supported by significant aggravating factors not present here, and Nadeau, a dismissal with a warning recommended by the Board, with, at the time, no prior disciplinary history, other than the two concurrent ethics violations found, leading to the Board-recommended public reprimand.

The other two related Maine cases, Letourneau and Pongratz, involved propositioning clients for sex and other intentional, inappropriate and unethical acts, but no sexual relations with clients.

The court surveyed sanctions for comparable cases in other states

The most significant case from another jurisdiction did not involve a disbarment but a suspension of one year and one day. In re Kretowicz, BD-2018-106, Mass. S.J.C. Single Justice (March 6, 2019). In Kretowicz, the attorney-client representation in a family matter began in January 2011. From the beginning of the representation, the attorney’s communications with the client were “unusually personal in tone.” At some point, a sexual relationship with the client began. In April 2011 and again in June 2011, while the sexual relationship was ongoing, the client was hospitalized after overdosing on drugs and/or alcohol. In August 2011, “the client recognized the danger of being sexually involved with her divorce lawyer and spoke to him about obtaining new counsel.” The client’s effort to terminate the professional relationship was unsuccessful. Kretowicz continued to represent the client. On October 1, 2011, the client overdosed on drugs and alcohol and died.

For this tragic outcome of a sexual relationship with a client, a relationship that may have exacerbated emotional difficulties of the client, and a relationship that the client tried to terminate, but that the attorney failed to terminate, ending with the death of the client during the relationship, the attorney received a suspension for only a year and a day.

The court applied its sanction analysis to the unusual posture

Because the changed sanctions order will be imposed in the present, consideration must be given to Prolman’s current status, not the status that existed on or before September 14, 2017, the date of the original order. The evidence presented at the recent hearings demonstrates that Prolman has a commendable record indicating that he represents a large number of clients, mostly in criminal and family matters, and that most clients are satisfied with Prolman’s services and complimentary of his interactions with them. Particularly notable is the large number of communications received from female clients, none of whom indicate that Prolman has engaged in any improprieties with them or improperly crossed any boundaries in his dealings with those clients. Those communications indicate that the inappropriate actions with one client that led to this proceeding was an aberration, not a continuing pattern, in Prolman’s dealings with his clients.

Separately, since being reinstated and continuing, Prolman has assisted an unusually large number of pro bono clients for which he has received recognition through the Katahdin Counsel program and otherwise. That representation, and representation of his regular clients in ways that are satisfactory to those clients, would be disrupted, causing significant harm to them should a further actual suspension be imposed.

In addition to his work with his regular clients and the services he provides to pro bono clients, Prolman is also engaged in important community service work. One area of work is subject to particular note. He is a sincere and devout practitioner of his Jewish religion, regularly attending services at a synagogue in Portland. Recent national visibility to voices of bigotry, including anti-Semitism, stated, with acceptance in some circles, in the name of freedom of speech or freedom of religion, has led to some tragic attacks on individuals and institutions, including synagogues. To address this concern, Prolman has taken it upon himself to assume responsibility and personal risk by providing security services during worship at the synagogue that he attends. While such services would not be deterred should Prolman receive a further actual suspension, the example of this service is offered as an illustration of service he provides, above and beyond what most individuals provide, in service to his community.

In addition, since the Law Court’s opinions, Prolman has engaged, on his own initiative, in monthly counseling to aid his perception of boundary issues and how to stay within proper boundaries in dealings with clients and others in the community.

Considering all of the circumstances discussed above, including the ethical violations, the impacts on the client/victim, the services that Prolman provides to current clients and to pro bona clients, his work in the community, and his commitment to address, through counseling, an issue that led to this proceeding, and respecting the Law Court’s opinion that as a matter of discretion the sanction originally imposed was simply not enough, the Court would reimpose a sanction as follows:

In this Court’s view, serving an additional suspension, beyond the six-month suspension that has already been served, could have a significant adverse effect on the many regular and pro bono clients that Prolman serves, generally commendably, and also on the courts where his services for those clients are provided. However, on the issue of a further suspension from the practice of law, this Court is not painting on a blank page. The Law Court has mandated that, with more attention given to the aggravating factor of the prior conviction and suspension, some additional suspension must be imposed and that once the suspension takes effect, Prolman must be required to petition to be reinstated before he would be allowed to resume the active practice of law.

Accordingly, to respect the Law Court’s direction, the sanction that the Court believes necessary to meet the Law Court’s standards for this single aberrational instance of sexual misconduct with a client and with consideration of Prolman’s prior disciplinary record, is a suspension of two years with all but nine months suspended, with the suspended portion to be served subject to conditions to engage in counseling regarding boundary issues, and to engage in ethics training and counseling with particular emphasis on issues regarding client communications and relationships and what the rules of ethics require in terms of those relationships. Further, respecting the Law Court’s direction, once the additional three months added to the suspension from the practice of law takes effect, to accomplish the full nine-month suspension, Prolman could not resume active practice of law until the end of the suspension and such further time as is necessary to petition for and regain reinstatement to the active practice of law.

With the goal of minimizing harm to current clients and the courts, the Court requests that the parties meet and determine, if they can do so by agreement, the date when the additional three-month suspension from the practice of law shall begin.

The Court orders Gary M. Prolman shall be suspended from the practice of law for a term of two years with all but nine months of that suspension suspended, and six months having already been served. The suspended portions of the suspension shall be served subject to compliance with the terms and conditions stated above.

The additional three-month suspension will commence upon a date to be agreed by the parties or, if the parties cannot reach agreement, on a date to be set by the Court. If the parties do not advise the Court of the date they have agreed the suspension may start by July 22, 2019, the Court will itself set the date for the suspension to start.

The revised remand order is linked here. (Mike Frisch)