Muldoon, Getz & Reston

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Inappropriate Sexual Conduct May Result in Disciplinary Action
Gary Muldoon
Muldoon & Getz
Rochester, NY
(585) 262-5130
www.muldoongetz.com


 

The Code of Professional Responsibility provides that an attorney cannot enter into sexual relations with a client in a domestic relations matter.


The Milonas Rules specifically apply to most types of family law cases. The “Statement of Client Rights and Responsibilities,” which is required to be provided to the client at the beginning of the attorney-client relationship, specifically informs the client of the prohibition on sexual relations. 22 NYCRR § 1400.2.


Discipline imposed

A three-year suspension was imposed for various offenses, including entering into a sexual relationship with a client during the course of representing her, and failing to discontinue employment after the attorney’s professional judgment was affected by his own personal interest. Matter of Hall, 10 AD3d 842, 782 NYS2d 147 (3d Dept 2004).


Other areas of law

The ethical rules on sexual conduct apply to other areas of law: also prohibited is requiring or demanding sexual relations as a condition of representation; and employing coercion or intimidation in entering into relations with a client. § 1200.29-a(b)(1,2). Generally, see Annotation, 43 ALR4th 1062, Sexual misconduct as ground for disciplining attorney or judge; see also, 6A NYJur 2d Attorneys at Law, § 331.


Some disciplinary decisions predate the disciplinary rule, which was added in 1999. For example, making unsolicited sexual advances to a client, and having a sexual relationship with a client whom the attorney represented in a criminal proceeding, resulted in a six-month suspension. Matter of Feinman, 225 AD2d 200, 649 NYS2d 585 (4th Dept 1996). See also, Matter of Weinstock, 241 AD2d 1, 669 NYS2d 368 (2d Dept 1998) (two-year suspension); Matter of Rudnick, 177 AD2d 121, 581 NYS2d 206 (2d Dept 1992) (two-year suspension).


Discipline upon criminal conviction

An attorney’s conviction of sexual misconduct, a class A misdemeanor, resulted in suspension from the practice of law for an attorney, who was sentenced on the criminal charge to six years’ probation, a $1,000 fine and was required to register under the Sex Offender Registration Act. The attorney admitted under oath that he had sexual intercourse with an adult female without her consent. Mitigating factors were considered but were not determinative. The Third Department noted the importance of deterring similar conduct and to preserve the reputation of the bar. Matter of Boxley, 8 AD3d 949, 780 NYS2d 37 (3d Dept 2004); see also, Matter of Singer, 290 AD2d 197, 738 NYS2d 38 (1st Dept 2002) (disbarment for Virginia conviction of aggravated sexual battery).


Miscellaneous actions

An older attorney (67 years old) was suspended for six months for engaging in a persistent pattern of sexually oriented conduct or offensive comments to female attorneys (e.g., offering candy balls to women attorneys with the comment, “Do you want to suck one of my balls?” ). Matter of Kahn, 16 AD3d 7, 791 NYS2d 36 (1st Dept 2005).


Sexist remarks are sanctionable. Principe v Assay Partners, 154 Misc2d 702, 586 NYS2d 182 (NY 1992).


Lawsuit for sexual conduct

Suit was brought against an attorney for engaging in sexual relations while representing the client in a domestic relations case. Summary judgment was granted to the attorney: no intentional or negligent infliction of emotional distress. The relationship was mutual and consensual, and fell far short of the required threshold.


Nor was there a cause of action for violating the disciplinary rule prohibiting initiating sexual relations between attorney and client in a domestic relations matter. The punitive damages claim also dismissed: "The affair, while brief, was a joint enterprise." Guiles v Simser, 9 Misc3d 1083, 804 NYS2d 904 (Sup 2005).


© 2008 by Gary Muldoon