Reciprocal Censure For Sex With Client

A reciprocal public censure has been ordered by the New York Appellate Division for the First Judicial Department based on an Arizona sanction

Respondent began representing client B.C. in or about January 2019 in connection with her anticipated divorce from her husband. In mid-February 2019, B.C. made sexual advances towards respondent, who refused them and explained that he could not engage in a sexual relationship with a client during representation. However, on or about February 27, 2019, respondent and B.C. began a sexual relationship. Respondent told B.C. he could not continue representing her, but she requested he continue the representation until a hearing scheduled for March 15, 2019. Their sexual relationship continued and on March 14, 2019, respondent filed a motion to be relieved as B.C.’s counsel. At the March 15, 2019 hearing, the court granted respondent’s motion to withdraw after B.C. stated she understood that she would have to represent herself.

The Arizona State Bar (ASB) investigated, found respondent guilty of misconduct and recommended he receive an admonition with two years of probation. When given an opportunity to respond, respondent took no issue with the admonition recommendation but argued that probation was unwarranted. On December 26, 2019, the ADPCC voted 7-1-1 to affirm the ASB’s findings. There is no evidence that respondent demanded a formal proceeding to have the disciplinary ruling vacated.

Here

public censure is the appropriate sanction to impose considering the presence of significant mitigating factors, the absence of aggravating factors and its equivalency to the nonconfidential admonition issued in Arizona. The mitigating factors in this case include respondent’s initial rejection of his client’s sexual advances due to the conflict posed thereby; the fact that he withdrew from the representation, which was of limited scope, shortly after commencement of their sexual relationship; that there was no evidence of any harm to the client; that he cooperated with both Arizona disciplinary authorities and the Committee; and that he has no prior discipline. Moreover, a sanction of public censure is in general accord with precedent involving arguably comparable misconduct (see Matter of Dorris, 182 AD3d 133 [1st Dept 2020]; Matter of Shaw, 138 AD3d 133 [4th Dept 2016] ).

(Mike Frisch)