Sex And CLE

The Maine Supreme Judicial Court affirmed the decision of a single justice to impose a public reprimand and one-year suspension of an attorney

Around February 24, 2020, Brown became aware that he did not have any continuing legal education (CLE) credits for the 2019 calendar year. Maine Bar Rule 5 required Brown to earn twelve credits by February 28, 2020.

After consulting with the Board of Bar Overseers 

Brown signed up for four live courses and five self-study courses with Lorman. Brown soon realized, however, that he had scheduling conflicts with some of the live courses. Brown asked a support staff person, Tammy May, to sign on using Brown’s credentials to the live online courses that Brown could not attend. May understood that her role was to complete the live CLE courses for Brown. In accordance with Brown’s request, May completed at least three of Brown’s live CLE courses on February 25, 26, and 28, 2020. Brown then “allowed Lorman to report” to the Board that he had attended those live CLE courses. After May filed a complaint against Brown with the Board and after the Board extended the deadline for 2020 CLE completion due to the COVID-19 pandemic, Brown attended sufficient programs to meet his live CLE requirement.

Another count of alleged misconduct

Brown first began a sexual relationship with T.F. in 2014. At some point after Brown and T.F. met, T.F. married M.P. T.F. and M.P. had a child in 2017, and during the pregnancy there was a gap in Brown and T.F.’s relationship. In 2018, T.F. retained Brown to file a motion to enforce a marital property distribution she was entitled to as part of her previous divorce from another man. Brown and T.F. then resumed having a sexual relationship while Brown represented T.F. on the motion to enforce.

T.F. moved out of her home with M.P. in the late summer to early fall of 2019. At that time, Brown and T.F. were still engaging in periodic sexual relations. Also in the fall of 2019, Brown began representing T.F. in her divorce from M.P., a protection from abuse action against M.P., and an unrelated foreclosure action. Around this time, T.F. also began working for Brown on a part-time basis.

May left Respondent’s employ and contacted M.P.’s attorney

M.P.’s attorney agreed to speak with May, and May provided him with information about Brown’s relationship with T.F. M.P.’s attorney was concerned that Brown and T.F.’s relationship was contributing to the contentiousness of the divorce. At an interim divorce hearing the following day, March 12, 2020, testimony about Brown’s relationship with T.F. was presented, and as a result the family law magistrate called a recess to speak with Brown and M.P.’s attorney. The magistrate advised both Brown and M.P.’s attorney to contact Bar Counsel to inquire whether their actions conformed to Maine’s ethical rules. Brown talked with an Assistant Bar Counsel who cautioned him that continuing to represent T.F. could constitute a personal conflict of interest.

After the interim hearing, Brown moved to disqualify M.P.’s attorney. At a hearing on that motion in July 2020, Brown confirmed that he was now cohabitating with T.F. and her child. Brown and T.F. later agreed it would be best if Brown withdrew from representing her. Brown withdrew his motion to disqualify M.P.’s attorney and withdrew as T.F.’s counsel in the divorce matter.

The court here found the appeal timely but nonetheless affirmed on the merits.

Sex with a client

Neither party contends that there is a per se rule that a sexual relationship between an attorney and client creates a conflict of interest. Instead, Rule 1.7 and comment 12 demonstrate that there are situations where an attorney’s personal interest may limit that attorney’s ability to provide sound, independent legal counsel to a client with whom the attorney is having a sexual relationship. Of course, whether such a conflict of interest exists depends upon on the circumstances and context of the representation.

For example, if Brown represented T.F. in a small claims action against an auto shop for its failure to fix her car, the risk that Brown’s independent judgment would be materially limited may be smaller than the risk associated with representing her in the divorce action. Brown would not necessarily be emotionally involved in the outcome of the small claims action, and there would be less risk that his emotional involvement would hinder his ability to provide T.F. with sound, independent legal representation. Here, however, the evidence and factual findings support the single justice’s conclusion that there was a significant risk that Brown’s emotional involvement would limit his ability to fully and independently advise T.F. in her divorce case. Brown’s and T.F.’s lives were intertwined while Brown represented her in the divorce action: at the beginning, the two were having sexual relations; as the representation went on, they started regularly staying at each other’s homes; and, ultimately, they began cohabitating with T.F. and M.P.’s child. In addition, Brown’s position as T.F.’s lawyer fueled the overall contentiousness of the divorce proceedings. Indeed, there was also a potential that he could be a witness.

The court affirmed the sanctions imposed by the single justice.

A one-year suspended suspension of Brown’s license, with its accompanying probation and monitoring order, was not an inappropriate sanction for Count 1. Likewise, a public reprimand was not an inappropriate sanction for Count 2. Put simply, the sanctions applied here were “neither overly harsh nor outside of the [single justice’s] broad discretion.”

(Mike Frisch)