A few days ago, the Oklahoma Supreme Court issued a short opinion in which it imposes the most bizarre sanction I have ever seen in a disciplinary case. It generated a great exchange in the Professional Responsibility professors' list serv and many of the points I am going to make below are taken from that discussion. The case is called State ex rel. Okla. Bar Ass’n and the opinion is available here.
But before we get to all that, let's review the facts of the case. The lawyer in question, one Richard Stout, was charged with three counts of misconduct. In one, it was alleged (and later proven) that he represented a woman in her divorce case. While the representation was ongoing, he sent her sexually suggestive text messages but because she wanted her divorce completed as quickly as possible she didn’t fire him. In another, it was alleged (and also later proven) that he had sex with a client who said she did it because she was “in a desperate situation” financially. Finally, in the third one, it was alleged - and proven - that, about a year later, Stout made unwanted sexual advances and sent sexually suggestive messages to another female client who ultimately terminated the representation.
Based on these facts, the court found that Stout’s actions violated several rules of professional conduct, including the prohibition on representing a client when there’s a conflict of interest, the prohibition against having sexual relations with a client (which has exceptions but none of which were applicable in this case), and a rule of the Oklahoma Rules Governing Disciplinary Proceedings which subjects an attorney to discipline for any acts by that attorney that are contrary to prescribed standards of conduct, and "which would reasonably be found to bring discredit upon the legal profession."
However, the court also found that the lawyer expressed “sincere and deep remorse toward his clients,” voluntarily consented to therapy, and offered to not take on female clients in the future.
Based on these "mitigating" circumstances, the court decided to impose only a three-month suspension.
At this point we could stop and discuss whether that sanction is too lenient; but there are more interesting things to talk about.
Here is where it gets interesting. After stating the three month suspension, the court added that the lawyer had to abide by the following conditions: (1) Mr. Stout shall not accept female clients and will not meet alone with a female at any time associated with his practice of law; (2) he will remain in treatment as recommended by his counselor; (3) he will remain in contact with Lawyers Helping Lawyers; and (4) he will maintain site blocking protection on his electronic devices.
Let's start with number 4... So the court is telling the lawyer he can't access certain websites [I assume related to pornography]. I have two questions: how is the state going to monitor, or enforce that? But more importantly, isn't that a violation of the lawyer's first amendment rights? Can the state control the content of a lawyer's books, or magazine subscriptions as a condition to practice law?
Then let's talk about what the law professors were talking about today: condition number 1. The court is telling the lawyer that he can not be alone with females in relation to the practice of law.
This sanction raises many questions. For example, is the lawyer now going to be required to post notices in appropriate places (entrance to his office, his website, etc) warning, or at least informing, that females must be accompanied when contacting him in person? Can the lawyer hire female staff or associates (because there is always a chance he might find himself alone with them in the office)? How is he going to conduct business with female lawyers?
Then there is the question of whether the sanction becomes state mandated discrimination on the basis of gender. And if it is, would the Oklahoma Bar ever consider prohibiting a lawyer from accepting African-American clients in response to a lawyers misconduct involving racist conduct? And if the answer to that is no, how does the court justify saying it is okay to mandate discrimination on the basis of gender but it is not okay to mandate discrimination on the basis of race?
Now this question has several layers. First, it is a generally accepted proposition that lawyers can discriminate when choosing clients. Even the recently adopted Model Rule 8.4(g) recognizes this. However, at the same time, it is possible that lawyers may be subject to penalties for violating state or federal anti discrimination laws. For example, Illinois Rule 8.4 recognizes this, and makes it misconduct to violate these laws. In other words, in Illinois is it not misconduct to discriminate unless the discrimination is found to be a violation of the law. Thus, in many states, lawyers can choose to represent only people of one gender if they want. There are law firms out there that do so.
There are firms who represent only men in divorces cases. (See here, for example.) What is different in this case is that the lawyers in those firms have chosen to represent only men; in the Stout case, the court is forcing the lawyer to do so. As a penalty. Because he presumably can't handle it. And that, to me, makes a difference.
I don't like that this opinion, when published, will set a precedent that allows a court to micro manage the practice of a disciplined attorney. Can the court now tell lawyers that they can't get involved in certain types of cases, or represent certain types of clients?
And what if a woman wants Stout to represent her? Why does the court prevent her from choosing her lawyer? To protect her?
If this man is so out of control that he can't even be trusted to be in a room alone with a female in a professional setting, is he really fit to practice law at all?
If the lawyer is competent to practice law, he should be competent to represent the clients who want to hire him. If he is incompetent to represent women, he should be considered incompetent to represent anyone. He should have been suspended indefinitely until he was able to show he could be trusted to practice again.