Akron Bar Assn. v. Fortado (Slip Opinion)
2020 Ohio 517 (2020)
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Rule of Law:
A lawyer engaging in sexual activity with a client in the absence of a preexisting consensual sexual relationship violates professional conduct rules; while such conduct warrants suspension, the specific sanction, including whether it is fully stayed, depends on the presence of aggravating and mitigating factors and the absence of additional misconduct, selfish motive, or demonstrable harm.
Facts:
- In February 2011, M.S. retained Matthew 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. in the initial civil matter concluded in February 2012 with the settlement and dismissal of the action.
- The intimate sexual relationship between Fortado and M.S. concluded in the fall of 2014.
- After their intimate relationship ended, 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.
- M.S. was going through a difficult divorce, had mental health issues, was denied visitation with her children, and was in financial distress when she began her relationship with Fortado.
- Fortado waived "substantial fees" M.S. owed him, persuaded another attorney to waive fees, and provided M.S. financial help for travel, gifts, and health problems, and took her on vacations.
Procedural Posture:
- Relator, Akron Bar Association, filed a complaint with the Board of Professional Conduct of the Supreme Court of Ohio, alleging that Matthew Fortado violated Prof.Cond.R. 1.8(j).
- Fortado admitted the charged misconduct in a consent-to-discipline agreement filed in March 2019, agreeing with the relator that a conditionally stayed one-year suspension was the appropriate sanction.
- A panel of the Board of Professional Conduct assigned to hear the case rejected the consent-to-discipline agreement, and the matter proceeded to a hearing.
- At the hearing, the parties submitted stipulations that were nearly identical to their rejected agreement, again stipulating that a conditionally stayed one-year suspension was the appropriate sanction.
- After considering the stipulations, exhibits, testimony, and precedent, the panel recommended that Fortado be suspended from the practice of law for one year with six months stayed on the condition that he engage in no further misconduct.
- The Board of Professional Conduct adopted the panel’s findings of fact, conclusions of law, and recommended sanction.
- Fortado filed an objection with the Supreme Court of Ohio, arguing that the Board erred in rejecting the parties’ consent-to-discipline agreement and in recommending a one-year suspension with six months conditionally stayed.
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Issue:
Does an attorney's engagement in an intimate sexual relationship with a client, in violation of Prof.Cond.R. 1.8(j), warrant a partially stayed suspension, or is a fully stayed suspension sufficient given significant mitigating factors and the absence of additional egregious aggravating circumstances?
Opinions:
Majority - Per Curiam
Yes, an attorney's engagement in an intimate sexual relationship with a client, in violation of Prof.Cond.R. 1.8(j), warrants a fully stayed one-year suspension given the mitigating factors present and the absence of additional significant aggravating circumstances found in other cases. The court found that while the panel had discretion to reject the consent-to-discipline agreement, the board's recommended sanction (partially stayed) was inconsistent with precedent when considering the specific circumstances of this case. The majority distinguished Fortado's conduct from other cases where actual suspensions were imposed, noting that those cases involved additional rule violations (e.g., failure to deposit funds, failure to perform work), multiple offenses, selfish/dishonest motives, or demonstrable harm to vulnerable clients. In contrast, Fortado accepted full responsibility, acknowledged his wrongdoing, fully cooperated, and there was no evidence of coercion, multiple offenses, a selfish or dishonest motive, or that his intimate relationship with M.S. caused her any harm. The relationship also outlasted the initial representation by approximately two and a half years and developed into a friendship that continued for another two years. The court cited cases where fully stayed suspensions were imposed despite egregious misconduct, such as unwelcome sexual advances and failure to attend sentencing, or relationships with chemically dependent clients, as precedent supporting a fully stayed suspension for Fortado.
Dissenting - Kennedy, J., joined by Fischer, J.
No, an attorney's engagement in an intimate sexual relationship with a client, in violation of Prof.Cond.R. 1.8(j), warrants an actual suspension, specifically a one-year suspension with six months stayed, because such conduct is per se professional misconduct and abuses the attorney-client relationship. Justice Kennedy argued that Prof.Cond.R. 1.8(j) is an absolute bar against commencing a sexual relationship with a client unless it predated the representation. The dissent emphasized that a client's apparent consent, the absence of overt coercion, or a lack of apparent prejudice to the client are irrelevant and do not mitigate the misconduct due to the inherent power imbalance and the "insidiously harmful" nature of such relationships. The dissent pointed out Fortado's own admissions that M.S. was financially, emotionally, and psychologically vulnerable when their relationship began, and that his financial support to her during the relationship could be seen as "paying" her to continue it. Justice Kennedy concluded that the majority departed from established caselaw which typically imposes actual suspensions for these violations, and that Fortado failed to carry his burden to ensure attorney-client dealings remained on a professional level, thus warranting an actual six-month suspension.
Analysis:
This case refines the application of sanctions for attorney-client sexual misconduct under Prof.Cond.R. 1.8(j), emphasizing the importance of specific aggravating and mitigating factors beyond the mere violation. It signals that while the rule establishes a per se violation, the severity of the sanction, particularly the imposition of actual suspension versus a fully stayed one, will hinge on additional misconduct, demonstrable harm, a selfish motive, and the attorney's level of remorse and cooperation. The majority's decision suggests a nuanced approach, distinguishing between a "simple" violation with significant mitigating factors and those cases compounded by other ethical breaches or exploitation, potentially leading to more attorneys receiving fully stayed suspensions if their misconduct is limited to a single violation and they are cooperative.
