Oklahoma court: past sexual relationship between judge and prosecutor entitles criminal defendant to new trial; should more cases be reversed?

An Oklahoma court recently held that the fact that a judge and a prosecutor were involved in a sexual relationship during the beginning stages of a murder trial entitles the defendant to new trial.  The ABA Journal has the story here.  

You can read the court's opinion here.

If the relationship had been ongoing during the trial, this result would not be surprising, of course.  In this case, the judge and prosecutor were in a relationship during the initial stages of the case only.  The trial itself happened two or three years later. 

One interesting question is whether the judge and the prosecutor should be subject to discipline for concealing the relationship while it was ongoing.  The judge resigned his judgeship in spring 2021—after the prosecutor and two other lawyers accused him of sexual misconduct.

The judge acknowledged sexual relationships with two prosecutors, but he said they were consensual.  A special prosecutor declined to bring charges in connection with the allegations.

Now I wonder if all the criminal cases tried by those prosecutors and presided by the judge should be looked into.  If I were a criminal defense lawyer, I would look to see if I had represented any defendants during the years that they had ongoing relationships.

How not to practice law: start dating a client and then help him murder his "ex"

Above the Law is reporting on a case in Oklahoma in which the state is seeking the death penalty for a lawyer.  The lawyer is accused of three counts of deliberate and intentional first-degree murder and one count of first-degree burglary in connection with the murders of the lawyer's client ex-girlfriend and her parents.  You can read the story here.

How not to practice law: try to get your client to pay a fee by providing sexual services

We have seen stories like this before but it is notable that the discipline imposed is for an attempt to violate the rules of professional conduct.  That is not so common, although we did see another example last year in a similar case (see here).

In this new case, the client apparently did not have enough money to pay the lawyer what he said his services would cost, so he told the client she could pay him by having sex with him.  Like I said, we have seen cases like this before, but in this one we have the transcript of the actual conversation in which the lawyer explained the transaction he had in mind.  Don't follow the link if you are easily offended by language of a sexual nature.  Here is the link to the story which includes the transcript of the conversation. The decision of the court, which also includes the transcript, is here.

Eventually, the lawyer had his law license "annulled" which I assume is akin to a permanent disbarment.

Discipline for attempting to violate the rule on sex with clients

Model Rule 8.4, which is the basis of Rule 8.4 in most, if not all states, holds that it is professional misconduct for a lawyer to "violate or attempt to violate" the Rules of Professional Conduct.  Yet, you rarely see cases imposing discipline for an attempted violation of the rules.

This makes Lawyer Disciplinary Board v. Sayre interesting.  In this case, the Virginia Supreme Court imposed discipline on an attorney for a number of offenses and one of them involved an attempt to violate the rule against sex with clients.  The lawyer admitted that he knowingly engaged in inappropriate and sexually suggestive communications with the intent of initiating a sexual relationship with a client. Because his attempt was unsuccessful, the Court ruled the conduct was not a violation of rule 1.8, but it was a violation of rule 8.4.

The Legal Profession blog has a summary here.

How not to practice law: have your client's wife pay the client's bill by giving you a lap dance and having sex with you

Need I say more?  The Legal Profession Blog has a summary here.  The complaint is here.

Supreme Court of Oklahoma imposes a bizarre sanction: barring an attorney from representing, or even meeting with, females

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.

Ohio Supreme Court continues trend of suspending lawyers for violation of rule against having sex with clients

The Law for Lawyers Today is reporting that "[t]he Ohio Supreme Court is continuing its trend of suspending lawyers who violate the disciplinary rule on sex with clients, and has again rejected arguments that pointed to the consensual nature of the relationship.  In a recent opinion involving sex between criminal defense counsel and his client, the court characterized the lower disciplinary Board’s analysis as “blaming the victim,” and increased the penalty above what the Board recommended."  Go here for details and analysis.

Vermont adopts rule regulating sexual relations with clients

Ethical Grounds is reporting that the Vermont Supreme Court recently adopted a version of Model Rule 1.8(j) which regulates sexual relations with clients.  The model rule has been in place for quite some time, and quite frankly I am surprised to hear it had not been adopted sooner.

California proposes change to rule regarding sex with clients

Model Rule 1.8(j) was adopted a number of years ago to regulate possible sexual relationships with clients.  It states 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."   

The topic is now back in the news because a few days ago it was reported that California is considering adopting the Model Rule's approach to the question (as part of an overhaul of the state’s disciplinary rules).  The current rule in California bars lawyers from coercing sex with a client or demanding sex in exchange for legal representation.  For more details and links go to NPR, or the ABA Journal.  For a comment on the proposal go to Simple Justice.

The topic was also proved difficulty in Texas when it considered changes to the rules back in 2010.

Lawyer convicted for helping client/husband conduct gang activities from prison

A lawyer who years ago got in trouble when she was caught on tape engaging in sexual contact with a client in a room for attorneys to meet with defendants in police custody, has now been convicted after admitting that she had helped her husband, a client whom she married while he was in prison, conduct gang activities from prison by providing money and information to others at his direction.  Go here for more on this story.

A few headlines

I am still away, but I am taking some time away from my time away between semesters to catch up with some of the headlines from the last few weeks:

The Supreme Court of Ohio rules that a Texas company with offices in Ohio engaged in the unauthorized practice of law when it prepared and filed a tax appeal and appeared before the Ohio Board of Tax Appeals.

Retired lawyer suspended for lack of e-mail address.  (Sounds odd, but if you read the story carefully you'll see the attorney was really disciplined for violating a specific court rule that requires a lawyer to provide an email address.  The more interesting question is whether that rule is warranted.)

Is it ethical for attorney's to solicit clients by "texting."  There has been some discussion on this recently and here is a post arguing against it.  The big question is whether texting can be distinguished from using regular mail or e-mail which are protected speech subject to the limits imposed by the rules.  I think texting does result in more of an invasion of privacy than regular mail or e-mail.  Also, it can result in a minimal financial burden on the person who receives the message.  However, I am not sure the difference in the level of invasion of privacy is enough to justify a different analysis and, as the story mentions, the lawyers are supposed to pay for the cost of the message - although it is not clear how this can be enforced.

The Utah State Bar Ethics Advisory Committee recently issued a new opinion on "A Lawyer’s Options When a Client with Diminished Capacity Refuses to Act."   The opinion is available here.

Can lawyers advise marijuana growers in Colorado?  Lawyers are caught between the new state law that says marijuana is legal and federal law that still treats marijuana as an illegal drug.

Representatives from LinkedIn met with Florida Bar officials last month and outlined changes to the social media site that should help allay concerns raised by the Board of Governors and the Standing Committee on Advertising.

Attorney suspended for seeking sex with opposing counsel and having sex with client (in different case).

Lawyer prosecuted for an alleged ethical violation that occurred in the course of representing an attorney accused of an ethical violation.

How not to practice law: ask client to pay for legal services with sex

Here is the most recent addition to our running list of examples of how NOT to practice law. This is one we have seen before and it should be pretty obvious... but it continues to happen. Go here for the full story.

How not to practice law: Have sex with your client, then charge her for your time

The title says it all. The story is available here.

Thanks to Ross Good for sending me the link.

South Carolina continues to struggle with the notion of conflicts of interest

I have argued before that the South Carolina Supreme Court does not understand basic principles of conflicts of interest (see here) and a recent decision involving a lawyer who had "romantic feelings for a client" prompts me to repeat my conclusion.

In this new case (In re Poff, S.C., available here), the court held that having what the court referred to as romantic feelings for the client doesn't create a conflict of interest that rises to the level of an ethics rule violation.  The court concluded that the lawyer's unrevealed romantic interest in the client, "in the absence of any evidence of its effect on his representation, does not, in our view, represent a conflict that rises to the level of a Rule violation."

In other words, the court finds that there is no conflict of interests unless the client is harmed by the conflict of interest.  This view is wrong - in general and as it applies to the facts of the case itself.

As I have stated elsewhere, the court's position shows its misunderstanding of the concept of a conflict of interest in the first place. For a court to find a conflict of interest it is not required that there be a certain "effect" or "harm" to the representation. The rules regarding conflicts of interest are there precisely to prevent a harm from happening.  A conflict exists if a lawyer from finding himself or herself in a situation where there is a significant risk that the representation of a client might be threatened by the lawyer's interest in, or duty to, someone or something else.  The significant risk is what is important.  If there is a significant risk that the lawyer might break a rule there's a conflict. Whether the lawyer breaks the rule is irrelevant.

Thus it is incorrect to think that there is a conflict only if the conflict causes harm to the representation.  On the contrary, it is the risk to the representation what determines that there is a conflict of interest.

The lawyer in this case had a conflict.  The conflict existed because his feelings for the client created a significant risk that the representation could be affected.  Period.  For example, there was a risk that the lawyer would disclose confidential information about the client to others when talking to them about his feelings toward her.... which, not surprisingly, is what actually happened in the case, and which brings me to my next point.  It is incredible that the court would say the representation was not affected since the court found the attorney violated his duty of confidentiality to the client!  

Discipline for lawyer who claimed she could "channel" the client's dead wife's spirit

A few months ago, I reported (here, here and here) on a case out of Arizona where a lawyer tried to convince her client that the client's dead wife's spirit had "come to her" and that she could communicate the wife's thoughts. Among other thoughts, the lawyer claimed the deceased wife wanted the client to have sex with the lawyer. The lawyer continued to "channel" the wife's thoughts to the client for three years.

The State Bar brought disciplinary charges against the attorney seeking disbarment but the Arizona Disciplinary Commission imposed only a one year suspension on the attorney. The State Bar then asked the Supreme Court to review the case and disbar the lawyer. The Legal Profession blog is reporting now that the Court sided with the Commission and imposed only a one year suspension.

The opinion is available here. The report of the Disciplinary Commission is attached here.

Thanks to the Legal Profession blog for the links.

How not to practice law: have sex with clients... while visiting them in prison!

The Legal Profession Blog is reporting that the California Supreme Court recently disbarred a lawyer who had sexual relations with two incarcerated clients. Story here.

UPDATE 3/7/2014:  Here is another case involving the same type of conduct.  In this case, the lawyer was caught when he brought an inmate a sex toy and asked her to perform sex acts with it, supposedly in exchange for his legal fees.

Arizona State Bar seeks tougher sanctions for attorney who claimed to be channeling client's deceased wife's thoughts

A few days ago, I reported (here) on the case out of Arizona where a lawyer tried to convince her client that the client's dead wife's spirit had "come to her" and that she could communicate the wife's thoughts. The Arizona Disciplinary Commission imposed a one year suspension on the attorney but the State Bar has filed a notice of its intention to ask the Supreme Court to review the case and disbar Johnson. Go here for the full story.

Tennessee does not adopt ABA Model Rules banning sexual relations with clients and allowing screening for lawyers who move to a new firm

About a month ago, the Tennessee Supreme Court announced its latest revisions to the Rules of Professional Conduct, which will take effect January 1, 2011. With these new rules, Tennessee joins the majority of jurisdictions in adopting most of the recent changes to the ABA Model Rules.

The rules, however, depart from the ABA Model Rules in at least two important ways. First, the Tennessee Supreme Court has rejected the adoption of the Model Rule that regulates sexual relations with clients. Instead, it has adopted three comments to Rule 1.7 on conflicts of interest that explain why sexual relations with clients is a bad idea, including the fact that the intimate relationship can exploit the client, impair the lawyer's judgment and endanger the attorney-client relationship. (You may remember that I recently noted that Texas is currently debating whether to ban sexual relations with clients -- more on that here.

Second, the new rules in Tennessee have retained its approach to conflicts of interest in cases where a new attorney joins a firm. Tennessee's rule does not recognize screening if the disqualified lawyer was substantially involved in the representation of the former client, the lawyer’s representation of the former client was in connection with an adjudicative proceeding that is directly adverse to the interests of a current client of the firm and the proceeding between the firm’s current client and the lawyer’s former client is still pending at the time the lawyer changes firms.

UPDATE (10-25-10) Here is a link to more information on the newly adopted rules in Tennessee. Go here for a summary of the key changes. Go here for a copy of the new rules.

Sanctions imposed on attorney who claimed to be channeling client's deceased wife's thoughts

A few weeks ago, I reported (here) on the case out of Arizona where a lawyer tried to convince her client that the client's dead wife's spirit had "come to her" and that she could communicate the wife's thoughts. Among other thoughts, the lawyer claimed the deceased wife wanted the client to have sex with the lawyer. The lawyer continued to "channel" the wife's thoughts to the client for three years.

The State Bar brought disciplinary charges against the attorney seeking disbarment (mostly because of the lawyer's dishonesty during the disciplinary proceeding) but the hearing officer recommended a six month suspension. Now comes news that the Arizona Disciplinary Commission has imposed a one year suspension on the attorney. Go here for a copy of the opinion.

UPDATE 10/27/10: The State Bar has filed a notice of its intention to ask the Supreme Court to review the case and disbar Johnson, said Bar counsel Stephen Little. Go here for the full story.

UPDATE March 2011:  The court imposed a one year suspension.  Story here.

How not to practice law: tell your divorce client's wife you want to go out with her

Here is yet another story of an attorney having (or trying to have) sex with a client's spouse. In this case, the Indiana Supreme Court suspended an attorney for 90 days. The attorney sent the client's wife a series of e-mails in which the attorney discussed the attorney's romantic interest in the wife. The court affirmed findings that the attorney had breached his duty of confidentiality and engaged in a conflict of interest. The case is called In The Matter of Fillenwarth and you can read it here.

For the other stories involving attorneys and their client's spouses go here, here, here and here.