Improper Retainer Agreement And Sex With Client Draws Suspension

The New York Appellate Division for the Third Judicial Department has accepted an agreement to impose a suspension of one year and until further court order

As part of the submission, respondent properly provides an affidavit in which he conditionally admits that he utilized an improper retainer agreement that contained a clause stating that his fee was nonrefundable, and failed to set forth any conditions that would allow his matrimonial client to seek a refund of the retainer fee (see Rules of App Div, All Depts [22 NYCRR] §§ 1400.3, 1400.4). Respondent further admits that during his representation of said matrimonial client, he engaged in prohibited sexual relations with his client as defined by Rules of Professional Conduct.

Improper retainer agreement

Turning first to the improper retainer agreement, we note that the rule prohibiting such an arrangement reflects the public policy of protecting a client’s right to terminate the attorney-client relationship at any time, which is jeopardized by an agreement that essentially forces a client to forgo that right by means of “economic coercion”

Prohibited sexual relations

These policy considerations underscore the severity of respondent’s misconduct in this matter, which involved a vulnerable matrimonial client who was not only emotionally compromised by the inherent nature of the representation, but was also faced with an economic disincentive to terminate the attorney-client relationship. Further, beyond the egregious nature of his admitted misconduct, we also take note of respondent’s past history of discipline, which includes a recent admonition for strikingly similar misconduct. Specifically, respondent was admonished in 2017 for the use of an improper retainer agreement and for sending inappropriate sexually-based communications to his then-client.

(Mike Frisch)