In re Robert Lee Vogel, BPR 023374
482 S.W.3d 520, 2016 Tenn. LEXIS 74 (2016)
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Rule of Law:
An attorney's sexual relationship with a highly vulnerable client is a severe ethical violation that warrants a significant sanction, such as an active suspension from the practice of law, which the Supreme Court may impose by increasing a disciplinary panel's lesser punishment to ensure appropriateness and uniformity.
Facts:
- Robert Lee Vogel served as court-appointed counsel for Lisa Horn-Brichetto in a criminal case.
- After withdrawing from the representation, Vogel sent a letter to Horn-Brichetto explaining the reasons for his withdrawal, which contained confidential and negative information about her.
- Vogel sent a copy of this confidential letter to Judge E. Eugene Eblen, who was presiding over Horn-Brichetto’s pending criminal case.
- Separately, Vogel was appointed to represent Ashley Alford in a federal criminal case.
- While representing Alford, Vogel hired her to work in his law office, as she was on pretrial release conditioned on her securing employment.
- Vogel initiated and engaged in a sexual relationship with Alford, a young client who was using drugs at the time.
- The relationship involved three instances of sexual intercourse, one of which occurred after Alford expressed reluctance and Vogel persisted in asking her.
- Alford stated she felt submissive and complied because Vogel was her attorney who "held [her] future in his hands."
Procedural Posture:
- The Board of Professional Responsibility filed a Petition for Discipline against attorney Robert Lee Vogel based on two separate complaints.
- A hearing panel found that Vogel had violated the Rules of Professional Conduct in both matters.
- Following a motion by the Board, the panel entered an Agreed Order imposing a single one-year suspension, with all but thirty days to be served on probation with conditions.
- Vogel did not appeal the panel's decision.
- The Board filed a Petition for Order of Enforcement with the Supreme Court of Tennessee.
- The Supreme Court of Tennessee issued an order proposing to increase Vogel's punishment, finding the panel's sanction appeared inadequate.
- Vogel filed a brief and requested oral argument before the Supreme Court, which was granted.
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Issue:
Is a one-year suspension with all but thirty days served on probation an appropriate and uniform punishment for an attorney who engaged in a sexual relationship with a vulnerable client and separately disclosed another former client's confidential information?
Opinions:
Majority - Justice Jeffrey S. Bivins
No. A one-year suspension with all but thirty days served on probation is not an appropriate or uniform punishment under the circumstances of this case. The court agrees with the hearing panel that Mr. Vogel committed serious ethical violations in both matters. In the Horn-Brichetto matter, Vogel knowingly revealed confidential information of a former client to a judge without consent, causing injury by forcing the judge's recusal and delaying the case. In the Alford matter, Vogel engaged in a sexual relationship with a highly vulnerable client, creating a conflict of interest and unfairly exploiting his fiduciary role. While the court acknowledges significant mitigating factors, including Vogel's extensive rehabilitation efforts, these are outweighed by the aggravating factors. The most significant aggravating factor is the vulnerability of Ms. Alford—a young, drug-using, court-appointed client—and Vogel's exploitation of his dominant position as her attorney. To protect the public and maintain the integrity of the legal profession, a more severe sanction is necessary. Therefore, the panel's judgment is modified to a one-year suspension with the entire period to be served on active suspension.
Analysis:
This decision reinforces the Tennessee Supreme Court's authority and willingness to increase attorney disciplinary sanctions it deems inadequate. It establishes a strong precedent that an attorney's sexual exploitation of a vulnerable client is an egregious breach of fiduciary duty that warrants a severe sanction, even in the face of substantial mitigating evidence like post-misconduct rehabilitation. The court's emphasis on the client's vulnerability as a key aggravating factor signals that this circumstance will be weighed heavily in future disciplinary cases involving attorney-client sexual misconduct. The ruling serves as a stark warning about the professional and personal boundaries attorneys must maintain, especially with clients in crisis.
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