‘Personal and prurient interest’: Sex with client was attorney rule violation

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An attorney violated Rule 1.7(a)(2) of the Virginia Rules of Professional Conduct by engaging in a sexual relationship with his client during representation, the Supreme Court of Virginia held, affirming a ruling of a three-judge panel in an attorney discipline proceeding.

The attorney, who was issued a public reprimand with terms and was required to retake the Multistate Professional Responsibility Exam and complete 250 hours of community service, claimed he cured any violation under Rule 1.7(a)(2) because he withdrew from representation.

Supreme Court of Virginia Justice Thomas P. Mann disagreed.

“[The attorney] engineered the opportunity for sexual intercourse with [the client] and followed through with his plan,” the justice wrote. “In this case, the violation of Rule 1.7(a)(2) is not a bell which can be unrung by withdrawal. The court’s decision regarding the violation of Rule 1.7(a)(2) was sound and supported by substantial evidence in the record.”

Mann authored the Supreme Court of Virginia’s opinion in Brown v. Virginia State Bar, Ex Rel, Sixth District Committee (VLW 023-6-012) earlier this month.

Background

In 2017, C.C. retained Fredericksburg attorney Joseph Brown for representation in a divorce case. C.C.’s husband, M.C., had filed for divorce in the Spotsylvania County Circuit Court.

Brown’s representation of C.C. continued for several years through May 2020 when, after exchanging a series of explicit texts, Brown and C.C. “had sex” in a Fredericksburg hotel.

Per the opinion, a hotel employee who knew M.C. informed him that “C.C. was there with a man,” after which he “sent his private investigator to the hotel to obtain evidence of the encounter.”

M.C. emailed Brown that evening “demanding that he withdraw as C.C.’s counsel” and informed Brown that he would be sending an ethics complaint to the Virginia State Bar, or VSB. Brown withdrew as counsel later that month, citing a “conflict of interest.”

After Brown’s withdrawal, C.C. proceeded in the divorce case pro se, with the final order of divorce being entered in September 2020.

M.C. filed a complaint with the VSB in May 2020. The Sixth District Subcommittee of the VSB found in September 2021 that Brown’s actions “constitute[d] misconduct” and certified the matter to the VSB Disciplinary Board, finding Rule 1.7(a)(2) and Rule 2.1 violations. Brown denied violating either rule and requested a three-judge panel.

Following a two-day trial before the panel in March 2022, the circuit court ruled that Brown violated Rule 1.7(a)(2), which governs “a concurrent conflict of interest” but not Rule 2.1. The court issued a four-page, 17-paragraph summary of the facts of the case in its memorandum order. Brown also received a public reprimand with terms following the trial.

Brown appealed to the Supreme Court of Virginia. He claimed the court erred in finding his conduct “added additional or new ground for divorce,” he did not violate Rule 1.7(a)(2), and assigned error to “the length and detail of the circuit court’s statement of facts.”

Rule 1.7(a)(2)

Rule 1.7(a)(2) of the Virginia Rules of Professional Conduct states in relevant part that “a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if … there is significant risk that the representation of one of more clients will be materially limited … by a personal interest of the lawyer.”

“Underpinning Rule 1.7(a)(2) is the lawyer’s duty of loyalty, and the understanding that when a lawyer’s personal interest conflicts with the interests of his client, that duty of loyalty is compromised,” Mann wrote.

A proposed rule — rejected by the court and covered by Virginia Lawyers Weekly in 2021 — would have added a paragraph to Rule 1.8 explicitly prohibiting “a lawyer from having sexual relations with a current client unless the relationship predated the lawyer-client relationship.” The Virginia State Bar Council endorsed the rule by a 54-2 vote before advancing the recommendation to the Supreme Court of Virginia.

Brown argued on appeal that the high court “has authorized sexual relationships with clients” because the proposed rule that would have made sexual conduct with clients a per se ethical violation was rejected.

Mann, however, was “entirely unpersuaded by that argument.”

“[I]t is fundamentally flawed both as a matter of law and logic,” he pointed out. “The rejection of a per se rule does not imply that such conduct is always permissible.”

The present case, Mann said, “is rife with examples of Brown’s personal and prurient interest in his client.” This “weakened his representation of C.C. to her actual and potential detriment,” the justice added.

“The most obvious detriments were that by engaging in sexual relations with C.C., Brown made himself a fact witness in her divorce case, added a ground for divorce for M.C., and necessitated his own withdrawal as counsel in C.C.’s cases, leaving C.C. to represent herself in her divorce case,” Mann wrote.

In fact, legal advice was interwoven throughout Brown’s “explicit messages” to C.C., showing that the fiduciary relationship was “ongoing and significantly compromised.”

“Most troubling is that a client with significant mental health and substance abuse issues was materially limited in her legal representation because her attorney prioritized his sexual lust over his responsibilities and the client’s best interests,” the justice said. “This conduct by Brown is the antithesis of what is required in a professional relationship that requires the scrupulousness of a fiduciary.”

Brown’s argument that his withdrawal from representation cured any Rule 1.7(a)(2) violation was also rejected.

“This was not an accidental, de minimis, or easily remedied conflict,” Mann wrote. “Rule 1.7 (a)(2) implicitly requires attorneys to assess the level of risk involved in their representation of a client to that client’s interests; a lawyer’s embrace of such risk is adverse to the Rule.”

Remaining issues

Brown assigned error to the finding that he created “a new or additional ground for divorce in C.C.’s case,” arguing that “previous evidence of adultery” by both parties in the divorce meant his conduct could not have created new ground.

Mann wasn’t swayed.

“Brown engaged in sexual relations with C.C., who was married at the time,” he wrote. “This fact could have been pleaded by M.C. in the divorce case as a new ground charging adultery.”

The justice said Brown “knew — or should have known — the possible consequences of his actions” and he should have tried to “mitigate the damage caused by her prior conduct rather than actively exacerbating the situation.”

Additionally, Brown assigned error to the length and specificity of the circuit’s memorandum order. Again, Mann affirmed the circuit court.

“Brown argues that it was unnecessarily explicit and detailed in its inclusion of the text messages. We disagree,” the justice wrote. “The communications between Brown and C.C. directly support the circuit court’s misconduct finding and demonstrate the degradation of the attorney-client relationship.”

Finally, the VSB assigned cross-error to the circuit court’s finding that Brown didn’t violate Rule 2.1. It asked the court to reverse that finding while leaving the public reprimand intact.

But that request left the high court “between a rock and a hard place,” Mann said.

“This Court cannot simultaneously reverse the circuit court’s misconduct finding on Rule 2.1 and leave in place a public reprimand based solely on Brown’s violation of Rule 1.7(a),” the justice explained. “That sanction would directly contradict the 2.1 misconduct finding that the Bar asks us to make.”

Brown’s counsel did not respond to a request for comment by deadline.