Ohio Orders One-Year Stayed Suspension For Sex With Client

The only issue in the case of Akron Bar Association v. Fortado, 2020 Ohio 517.J, was the attorney’s sexual relationship with his client. The relationship commenced after the attorney-client relationship. The lawyer violated Rule 1.8J which prohibits sex with a client (unless the lawyer and client had a pre-existing sexual relationship). The facts are described in this way:

{¶ 6}In February 2011, M.S. retained Fortado to represent her in a civil matter. Approximately six months later, Fortado commenced an intimate sexual relationship with M.S. Fortado’s legal representation of M.S. concluded in February 2012, with the settlement and dismissal of the action filed against M.S. After their intimate relationship concluded in the fall of 2014, Fortado represented M.S. in two other civil matters. Their relationship remained friendly until 2016, when M.S. discharged Fortado as her attorney in a personal-injury case. Fortado testified that M.S. initiated the intimate relationship by making repeated friendly overtures toward him and that he truly cared—and continues to care—for her. But he also admitted without qualification that it was wrong for him to have entered into the intimate relationship while he represented M.S. {¶ 7}The parties stipulated, the board found, and we agree that Fortado’s conduct violated Prof.Cond.R. 1.8(j).

… {¶ 21}Based on the unique facts of this case—including the absence of any evidence of coercion, Fortado’s acceptance of responsibility for his wrongdoing, his full cooperation in these proceedings, and his strong character and reputation evidence—and having carefully considered the sanctions we have imposed in other cases involving similar misconduct, we sustain Fortado’s objection to the board’s recommended sanction. Moreover, we agree that a conditionally stayed one-year suspension is the appropriate sanction for Fortado’s misconduct. {¶ 22}Accordingly, Matthew Fortado is suspended from the practice of law for one year, fully stayed on the condition that he engage in no further misconduct. If Fortado fails to comply with the condition of the stay, the stay will be lifted and he will serve the entire one-year suspension. Costs are taxed to Fortado.

Comment: it is unusual for a lawyer who engaged in a sexual relationship with a client to avoid a suspension. Indeed, Justice Kennedy dissented on the ground that the lawyer should have received at least a six month suspension from the practice of law.

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