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   Dear Fellow Members:

    Below you will find a link to an online copy of the Maryland Rules of Professional Conduct. We have provided this link in hopes of making your search for answers to your legal ethics questions easier. As always, if you need additional guidance, please do not hesitate to call the Legal Ethics Committee hotline at the number listed in the current issue of your bar newsletter.


         MD Rules of Professional Conduct

Legal Ethics Hotline Volunteers ... September/October
Sam Shapiro ... 301-340-1333 ... rogah@aol.com

 

Unethical Sexual Relations

Maryland has one bright-line rule regarding sexual relations with clients: Sex with a client that you are representing in a domestic relations matter is a per se violation of Rule 19-301.7(b) of Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”). Attorney Grievance Comm’n v. Culver, 381 Md. 241, 275, 849 A.2d 423, 443 (2004).  But what about sex with a client while representing them in a non-domestic relations matter?  Maryland has no general rule that prohibits sexual relations between attorneys and their clients.[1]  However, there is an argument that sexual relations with clients, or even non-clients, is unethical in certain circumstances within the purview of MLRPC Rules 19-301.7 and 19-308.4.

            RULE 19-301.7. CONFLICT OF INTEREST (1.7) provides:

             (a) Except as provided in section (b) of this Rule, an attorney shall not represent a client if the representation involves a conflict of interest. A conflict of interest exists if:

                        (1) the representation of one client will be directly adverse to another client; or

                        (2) there is a significant risk that the representation of one or more clients will be materially limited by the attorney's responsibilities to another client, a former client or a third person or by a personal interest of the attorney.

            (b) Notwithstanding the existence of a conflict of interest under section (a) of this Rule, an attorney may represent a client if:

                    (1) the attorney reasonably believes that the attorney will be able to provide competent and diligent representation to each affected client;

                      (2) the representation is not prohibited by law;

                     (3) the representation does not involve the assertion of a claim by one client against another client represented by the attorney in the same litigation or other proceeding before a tribunal; and

                   (4) each affected client gives informed consent, confirmed in writing.

            Comment [12] to Rule (1.7) states: “A sexual relationship with a client, whether or not in violation of criminal law, will create an impermissible conflict between the interests of the client and those of the attorney if (1) the representation of the client would be materially limited by the sexual relationship and (2) it is unreasonable for the attorney to believe the attorney can provide competent and diligent representation. Under those circumstances, informed consent by the client is ineffective. See also Rule 19-308.4 (8.4).”

            RULE 19-308.4. MISCONDUCT (8.4) provides in relevant part:

            It is professional misconduct for a lawyer to:

            (a) violate or attempt to violate the Maryland Lawyers' Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

            (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;

            (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

            (d) engage in conduct that is prejudicial to the administration of justice;

            (e) knowingly manifest by words or conduct when acting in a professional capacity bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status when such action is prejudicial to the administration of justice, provided, however, that legitimate advocacy is not a violation of this section;[]”

            Comment [3] to Rule 8.4 states: “Sexual misconduct or sexual harassment involving colleagues, clients, or co-workers may violate section (d) or (e) of this Rule. This could occur, for example, where coercion or undue influence is used to obtain sexual favor in exploitation of these relationships. See Attorney Grievance Commission v. Goldsborough, 330 Md. 342 (1993). See also Rule 19-301.7 (1.7).”[2]   

            Attorney Grievance Comm’n v. Hall, 408 Md. 306, 969 A2d 953 (2009) involved both MLRPC Rules 1.7 and 8.4, among others, and parsed out how these rules can be applied. In Hall, a Montgomery County attorney had an affair with a client while he was representing her in an employment discrimination action.  Things did not go well, with the case or the affair, and the client reported him to the Attorney Grievance Commission (“Commission”), then sued him for malpractice.  The Court said, “Rule 1.7(b), as relevant here, prohibits an attorney from representing a client if the attorney’s personal interests have the potential to limit materially his or her representation of the client, unless the attorney reasonably believes that his ability to represent the client will not be adversely impacted.” Hall, 969 A.2d at 963.  Mr. Hall contended that his sexual relationship with his client did not materially limit his representation and that he reasonably believed that he provided her with competent and diligent representation.  The Court disagreed, saying that he violated Rule 1.7(b) because, had his affair been known, it could have harmed his client’s employment discrimination case by forcing Mr. Hall to provide testimony about his sexual relationship with his client whose employment discrimination case was based on her affair with her former boss. The Court found that Mr. Hall’s failure to recognize his client’s “fragile, emotional state” was a further violation of Rule 1.7(b). Hall, 969 A2d at 966.  Then Court found that Mr. Hall had violated Rule 8.4, bringing “disrepute to the legal profession” and warned, “[I]f attorneys take advantage of a client’s emotional fragility, as the respondent did here, by having a sexual relationship with that client, this Court will not hesitate to impose disciplinary sanctions.” Hall, 969 A.2d at 968.  The Majority suspended him indefinitely from the practice of law for not less than 24 months.  Three judges in the minority would have disbarred him. Hall, 969 A.2d at 970.

            Maryland State Bar Association’s Committee on Ethics Docket No. 1984-09 is the only ethics opinion, short and somewhat outdated, on the subject of an attorney’s sexual relationship with a client. An attorney asked the Commission on Ethics whether his sexual relationship with a female client, who had hired him to advise her in the sale of jointly owned real property, transfer of property and consideration of possible divorce, was a violation of any disciplinary rules. The Committee looked at former rule DR 1-102(A)(3) (“Misconduct”) and opined that, while having sex with a client “may not specifically covered, it is the feeling of the Committee that your actions do tend to fall short of the higher standards of professional conduct…” Then, looking at former DR 5-101(A), (“Refusing Employment When the Interest of the Lawyer May Impair His Independent Professional Judgment”), the Ethics Committee went on to generate fundamental facts and suppositions not contained in the attorney’s inquiry and opined that his handling of her divorce proceeding could be “less effective” if his sexual relationship with her ever came to light. Ethics Docket No. 1984-09 at 2.

            A review of other Maryland cases in which attorneys were charged with unethical sexual relationships reveals a range of consequences from indefinite suspension to disbarment. A few examples follow: An attorney used the Internet at work to solicit sexual acts from a law enforcement officer who was posing as a fourteen-year-old or fifteen-year-old girl.  Attorney Grievance Comm’n v. Greenleaf, 438 Md. 151, 91 A.3d 1066 (2014); an attorney engaged in a sexual relationship with a client while representing the client in a domestic matter and made misrepresentations to opposing counsel. Attorney Grievance Comm’n v. O’Leary, 433 Md. 2, 69 A.3d 1121 (2013); an attorney sent inappropriate, sexually suggestive text messages to a client and touched the client in a sexually suggestive manner while in the courthouse awaiting trial.  Attorney Grievance Comm’n v. Marcalus, 442 Md. 197,112 A.3d 375 (2015); an attorney regularly spanked a 17-year-old secretary and spanked and kissed a client. Attorney Grievance Comm’n v. Goldsborough, 330 Md. 342, 624 A.2d 503 (1993); an attorney used the Internet to solicit minors for sex. Attorney Grievance Comm’n v. Childress, 770 A.2d 685, 364 Md. 48 (2001); an attorney was convicted of assault in the second degree, a sexual offense in the fourth degree; and false imprisonment.  Attorney Grievance Comm’n v. Eckel, 443 Md. 75, 115 A.3d 142 (2015); an attorney pled guilty to the offense of stalking a thirteen-year-old boy and was sentenced to six months’ incarceration with all time suspended, three years’ probation, one hundred hours of community service and a $1,000 fine. Attorney Grievance Comm’n v. Thompson, 367 Md. 315, 786 A.2d 763 (2001); an attorney fellated a thirteen-year-old boy and admitted to engaging in fellatio with the same juvenile on four other occasions. At the disciplinary hearing, the hearing judge found that he was a compulsive homosexual pedophiliac. He was convicted of the felony of second degree sexual offense, for which he received a suspended ten-year sentence and a five-year probationary period. Attorney Grievance Comm’n v. Mitchell, 308 Md. 653, 521 A.2d 746 (1985).

            Who, in the above cases, was disbarred?  The first two attorneys: Mr. Greenleaf and Ms. O’Leary.   The attorney in the third case, Mr. Marcalus, was given a two-month indefinite suspension, after which he sent sexually explicit text messages to an unrepresented female party and informed her that he would arrange for a “sugar daddy” to pay her for a sexually explicit act.  This was his third charge of sexual misconduct, and he was disbarred. Marcalus, 442 Md. at 211. The rest of the attorneys --Goldsborough, Childress, Eckel, Thompson, and Mitchell --received indefinite suspensions, although the dissenting judges in Childress, Thompson and Mitchell would have disbarred them.

            These cases involved Section (d) of Rule 8.4 or its forerunner, DR 1-102. Section (d) forbids an attorney from engaging in conduct that is “prejudicial to the administration of justice.”  This is conduct that “reflects negatively on the legal profession and sets a bad example for the public at large.”  Attorney Grievance Comm'n v. Goff, 399 Md. 1, 22, 922 A.2d 554, 567 (2007).  “An attorney’s conduct rises to this level if it is so egregious that it has a negative impact on the profession as a whole, leaving a bad mark on all of us.”  Attorney Grievance Comm’n v. Dore, 433 Md. 685, 709–10, 73 A.3d 161, 175 (2013).  And a violation of Rule 8.4(d) occurs when an attorney’s “conduct impacts negatively the public’s perception or efficacy of the courts or legal profession.”  Attorney Grievance Comm’n v. Rand, 411 Md. 83, 96, 981 A.2d 1234, 1242 (2009).    

            Conduct that is prejudicial to the administration of justice can be a murky concept, much of which is left to the eye of the hearing judge.  As Attorney Grievance Comm’n v. Gerace,  433 Md. 632 (2013) explains, in attorney discipline proceedings in Maryland, the standard is clear and convincing evidence, and the  Court will accept “the hearing judge's findings of fact as prima facie correct unless shown to be clearly erroneous.”  Attorney Grievance Comm'n v. Lara, 418 Md. 355, 364, 14 A.3d 650 (2011), (citing Attorney Grievance Comm'n v. Palmer, 417 Md. 185, 205, 9 A.3d 37 (2010)).  “If no exceptions are filed, [the] Court may treat the [hearing judge's] findings of fact as established for the purpose of determining appropriate sanctions, if any.” Md. Rule 16–759(b)(2)(A); see Lara, 418 Md. at 364, 14 A.3d 650. We review de novo the hearing judge's conclusions of law. Md. Rule 16–759(b)(1); [citations omitted]. “This is true even where default orders have been entered by the hearing judge.” Attorney Grievance Comm'n v. Tinsky, 377 Md. 646, 653, 835 A.2d 542 (2003) (citing Attorney Grievance Comm'n v. Harrington, 367 Md. 36, 49, 785 A.2d 1260 (2001)).

            While the Court will accept the hearing judge’s findings of facts unless they are clearly erroneous, it will not consider missing findings in rendering a decision.  For example, in Attorney Grievance Comm’n v. Merkle, 440 Md. 609, 103 A.3d 679 (2014), Bar Counsel tried to convince the hearing judge that Mr. Merkle had sought to develop a romantic relationship with a female client.  Bar Counsel offered Facebook communications and argued that Mr. Merkle’s offers to let his client use his rental property, his unexpected, late-night visit to her home, his request for a back massage, his comments about her attire, his offer to help her move out of her home, and his lying on her bed after helping her move were part of a seduction plan.  However, the hearing judge did not include Bar Counsel’s evidence in the findings of facts or conclusions and the Court therefore found that there was insufficient evidence to establish a violation of MLRPC 8.4(d).[3]

            If, on the other hand, the Court does find a violation of Rule 8.4 based on the findings of fact, it must then decide on the proper sanction.  As the Court explained in Attorney Grievance Comm'n v. Powers, Misc. Docket AG No. 8 (Md. App., 2017), it must keep two principles in mind: (1) that “the purpose of attorney discipline is to protect the public, not punish the attorney.”  Attorney Grievance Comm'n v. Framm, 449 Md. 620, 664–65, 144 A.3d 827, 853 (2016); and (2) that discipline is “directed at deterring other lawyers from violating the Maryland Lawyers' Rules of Professional Conduct and to maintain the integrity of the legal profession.” [citation omitted].  The sanction must be “commensurate with the nature and gravity of the violations and the intent with which they were committed.”  Attorney Grievance Comm'n v. Moore, 451 Md. 55, 88, 152 A.3d 639, 658 (2017).  “When determining the proper sanction, we measure the attorney's misconduct against any mitigating and aggravating factors.” Framm, 449 Md. at 664, 144 A.3d at 854.

            Aggravating factors include:

            (a) prior disciplinary offenses;

            (b) dishonest or selfish motive;

            (c) a pattern of misconduct;

            (d) multiple offenses;

           (e) bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency;

       (f) submission of false evidence, false statements, or other deceptive practices during the disciplinary process;

            (g) refusal to acknowledge wrongful nature of conduct;

            (h) vulnerability of victim;

            (i) substantial experience in the practice of law;

            (j) indifference to making restitution;

     (k) illegal conduct, including that involving the use of controlled substances. 

            Mitigating factors include:

 

            (a) absence of a prior disciplinary record;

            (b) absence of a dishonest or selfish motive;

            (c) personal or emotional problems;

      (d) timely good faith efforts to make restitution or to rectify consequences of misconduct;

          (e) full and free disclosure to disciplinary board or cooperative attitude toward proceedings;

            (f) inexperience in the practice of law;

            (g) character or reputation;

            (h) physical disability;

          (i) mental disability or chemical dependency including alcoholism or drug abuse when:

                       (1) there is medical evidence that the respondent is affected by a chemical dependency or mental disability;

                        (2) the chemical dependency or mental disability caused the misconduct;

                        (3) the respondent's recovery from the chemical dependency or mental disability is demonstrated by a meaningful and sustained period of successful rehabilitation; and

                      (4) the recovery arrested the misconduct and recurrence of that misconduct is unlikely;

            (j) delay in disciplinary proceedings;

            (k) imposition of other penalties or sanctions;

            (l) remorse;

            (m) remoteness of prior offenses.

American Bar Association, Standards for Imposing Lawyer Sanctions, § 9.32, Compendium of Professional Responsibility Rules and Standards (2012). Footnote 6 of Attorney Grievance Comm’n of Md. v. Levin, Miscellaneous Docket AG No. 75, 23 (Md. 2014).

            If the mitigating factors are not sufficiently compelling to excuse the misconduct, disbarment may occur. Id.



[1] The American Bar Association Commission on Evaluation of the Rules of Professional Conduct (“Ethics 2000 Commission”) added a new section to Model Rule of Professional Conduct 1.8 in 2002 that prohibits a lawyer from engaging in “sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.”  A majority of states have adopted this rule or one like it. Maryland is not one of them.

[2] Mr. Goldsborough regularly spanked his seventeen-year-old secretary, sometimes bare-bottomed, which came to light after a former female client filed a complaint with the Attorney Grievance Commission (“Commission”), claiming that Mr. Goldsborough had spanked her on two occasions.  Mr. Goldsborough denied all these allegations, and he failed to tell the Commission that a firm he’d formerly been affiliated with had let him go amid allegations of spanking female clients.  The Court imposed an indefinite suspension with a minimum of two years.

[3] The dissent in Merkle noted that “…despite a myriad of evidence concerning Merkle’s alleged improper conduct toward [client’s name omitted], the hearing judge oddly failed to make any findings of fact concerning Merkle’s conduct and conclude whether the conduct was a violation of MLRPC 8.4(d).”  It would have remanded for additional fact-finding concerning the alleged violation of MLRPC 8.4(d). Supra, 440 Md. at 699.

Co-Chairs

P. David Gavin
Allen J. Katz

Samuel M. Shapiro

 

   Committee
   Meetings

December 21, 2017
January 18, 2018
February 15, 2018
March 15, 2018
April 19, 2018
May 17, 2018

Meetings will be held on the 3rd Thursday of the month at 4:30PM in the upstairs conference room of the Bar Association building, unless otherwise noted.