New York Disbars Attorney For Sexting With Client

The attorney was disbarred after an exchange of text messages with a client. The opinion notes the following:

“Respondent was admitted to the practice of law by this Court on June 24, 1993, and he formerly maintained an office in Auburn. In August 2020, the Grievance Committee filed a petition asserting against respondent a single charge of professional misconduct, which alleges that he engaged in conduct that adversely reflects on his fitness as a lawyer by sending to a client via text message four unsolicited images of his genitalia. The Grievance Committee simultaneously filed a motion for an order suspending respondent from the practice of law on an interim basis on the ground that he had failed to cooperate in a grievance investigation concerning five additional client complaints. Respondent thereafter failed to appear before this Court or to file papers in response to that motion and, by order entered September 16, 2020, the Court suspended respondent from the practice of law on an interim basis effective immediately and until further order of the Court (Matter of Moody, 187 AD3d 1603 [4th Dept 2020]). Respondent remains suspended pursuant to that order. In January 2021, the Grievance Committee filed a second petition asserting against respondent four charges of professional misconduct, including neglecting client matters, failing to refund unearned legal fees, failing to cooperate in the grievance investigation, and failing to comply with attorney registration requirements.
In June 2021, the Grievance Committee filed a motion for an order, pursuant to 22 NYCRR 1240.8 (a) (6), finding respondent in default and deeming admitted the allegations of both petitions on the ground that, although respondent was personally served with the petitions in August 2020 and January 2021, respectively, he failed to file an answer within 20 days after he was served as required under the rules of this Court (see 22 NYCRR 1020.8 [b]). The Grievance Committee has filed proof that respondent was personally served with the motion for default in May 2021. Respondent thereafter failed to file papers in response to the motion on or before the deadline imposed by the Court. Consequently, we grant the motion of the Grievance Committee, find respondent in default on the petitions, and deem admitted the allegations therein.

With respect to the sole charge of the petition filed in August 2020, respondent admits that, in late 2018, he was retained to represent a client in a criminal matter. Respondent admits that, on or about April 20, 2019, while the criminal matter was pending, he engaged in a series of text messages with the client whereby respondent sent to the client four unsolicited images of his genitalia. Respondent admits that, after the client filed a grievance complaint, respondent asserted during the investigation that he mistakenly believed he had been exchanging text messages with a friend or acquaintance who lives in Florida. Respondent admits, however, that the series of text messages between respondent and the client contain numerous references to the personal circumstances of the client, without any indication that respondent believed he was corresponding with a person other than the client.”

Comment: The sexting led to a finding that the lawyer had violated Rule 8.4(d) (conduct prejudicial to the administration of justice) and (h) (conduct that adversely reflects on his fitness as a lawyer). There were also charges that the lawyer had neglected certain client matters.

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.

West Virginia Suspends Criminal Lawyer for 120 Days for Failing To Meet Appeal Deadlines

The case is captioned Lawyer Disciplinary Board v. Sayre, 18-0617, West Virginia Supreme Court. Sayre represented a client in a case where the client was convicted of attempted murder. Sayre missed several deadlines in the appeal process. The court set forth the facts as follows:

The events that led to Mr. Sayre’s conduct underlying this disciplinary proceeding first originated in 2016 when Mr. Sayre was appointed to be counsel in a criminal matter arising in Wood County. An order adjudging Mr. Sayre’s client guilty upon a jury verdict of guilty to the offense of second-degree murder was entered by the Circuit Court of Wood County on March 14, 2016. Mr. Sayre and another attorney were then appointed as appellate counsel. On March 15, 2016, Mr. Sayre filed a request for transcripts in the case. Three days later, he filed a notice of appeal with the Supreme Court of Appeals of West Virginia. A scheduling order was entered by the Supreme Court of Appeals of West Virginia on April 1, 2016, setting the deadline for perfecting the appeal as July 15, 2016.

Mr. Sayre did not perfect the appeal before the deadline. On July 22, 2016, a notice of intent to sanction was entered by this Court, directing him to perfect the appeal within ten days and show good cause as to why the appeal was not timely perfected. On August 9, 2016, Mr. Sayre filed a motion to extend the deadline and requested an additional sixty days to perfect the appeal, noting that he had received the trial transcript within the past thirty days. His motion was granted, and the deadline for perfecting the appeal was extended to September 15, 2016.

Mr. Sayre filed two more motions to extend the deadline to perfect the appeal—both of these motions were untimely. In his motion dated September 16, 2016, he requested an additional sixty days to perfect the appeal and asserted that he had not been able to completely review the transcripts or obtain feedback from his client to complete the brief. This motion was granted, and he was ordered to perfect the appeal on or before October 17, 2016. Later, on October 26, 2016, he filed another motion to extend, citing an overload of appointed work and a recent illness, and advised that he would have the appeal perfected by October 28, 2016. Mr. Sayre did not file the appeal by October 28, 2016, and the Court entered another notice of intent to sanction on November 4, 2016, directing him to file the brief within fifteen days, and show cause as to why the appeal was not perfected timely. Mr. Sayre filed his brief on January 4, 2017. This Court considered the appeal on the merits and issued a unanimous decision affirming the order sentencing Mr. Sayre’s client.

Sayre was found to have engaged in the violations of the following rules:

A Statement of Charges was issued against Mr. Sayre, and filed with this Court on July 9, 2018. It set forth the following alleged violations of the West Virginia Rules of Professional Conduct: Rules 1.1^[6] and 1.2(a)^[7] for failure to provide competent representation to his clients consistent with their stated objectives of timely pursuing appeals; Rule 1.3^[8] for failure to diligently pursue his clients’ appeals; Rules 1.4(a)^[9] and 1.4(b)^[10] for failure to adequately keep his clients informed and for failure to communicate; Rule 3.2^[11] for failure to make efforts to expedite appeals consistent with the desires of his clients; Rules 3.4(c)^[12] and 8.4(d)^[13]because he repeatedly violated the Rules of Appellate Procedure by failing to comply with multiple orders issued by the Supreme Court of Appeals of West Virginia

Sayre was also charge with exchanging text messages of a sexual nature with another criminal client. This was found to violate Rule 1.8(j) and 8.4(a).