The state Supreme Court has issued a one-year suspension to a Bucks County attorney who agreed to represent a female client in a DUI case in exchange for oral sex.
In a one-page July 17 order, the justices, adopting the recommendation of a three-member panel of the Disciplinary Board of the Supreme Court, granted a joint petition in support of discipline on consent in which attorney David H. Knight admitted to trading legal work for sexual favors and asked for a one-year suspension.
On April 11, Disciplinary Board members Douglas W. Leonard, Howell K. Rosenberg and Stewart L. Cohen recommended that the high court grant the 10-page joint petition, issued March 13 and penned by Chief Disciplinary Counsel Paul J. Killion.
Along with Killion, the petition was signed by Disciplinary Counsel Harold E. Campoli Jr., Knight and Knight's attorney, James C. Schwartzman of Stevens & Lee in Philadelphia.
According to the petition, there are no other documented cases in Pennsylvania involving a violation of Pennsylvania Rule of Professional Conduct 1.8(j), which became effective January 1, 2005, and prohibits sexual relations between a lawyer and a client regardless of whether it's consensual and whether it prejudices the client.
"It's a relatively new rule," Philadelphia ethics attorney Stuart Haimowitz, who is not involved in Knight's case, told The Legal on Thursday.
Haimowitz explained that, prior to Rule 1.8(j), sexual relationships between attorneys and clients were covered, albeit not as well, under Rule 1.7, which states that "a lawyer shall not represent a client if the representation involves a concurrent conflict of interest."
But Haimowitz said he couldn't point to a case in which an attorney was found to have violated Rule 1.7 for having consensual sexual contact with a client either.
According to Haimowitz, the main reason for the dearth of reported disciplinary cases involving consensual sexual relations between a lawyer and client in Pennsylvania is that those matters typically are he-said-she-said disputes in which little or no proof exists.
"These are very, very difficult cases to prove in that they involve a consensual sexual relationship involving two people," Haimowitz said. "The Disciplinary Board would need to prove a case like this by clear and convincing evidence."
Haimowitz said Knight's case was unique in that he admitted to the misconduct.
Michael B. Hayes, an attorney ethics lawyer at Montgomery McCracken Walker & Rhoads in Philadelphia, agreed, adding that, when a relationship between a lawyer and a client is consensual, it's rare for either party to even make a complaint to the Disciplinary Board in the first place.
The joint petition in Knight's case said that while other jurisdictions have issued suspensions of more than a year in cases involving consensual sexual relationships between attorneys and clients, Knight was entitled to some leniency because he admitted to the misconduct, showed remorse and agreed to ask for a suspension without revealing the identity of the client — referred to in the petition as "Jane Doe" — or forcing her to testify.
"Respondent was in a position of trust and confidence and engaged in sexual relations in his first meeting with a vulnerable client," the petition said. "However, militating strongly against a more severe sanction is the fact that by agreeing to this joint petition for consent, respondent has spared Ms. Doe the humiliation and embarrassment associated with testifying in a public proceeding and has also agreed to keep the client's identity anonymous."
Several attorneys The Legal spoke to pointed to the Pennsylvania Rules of Disciplinary Enforcement, which state that an attorney who is suspended for one year or less is automatically reinstated to the practice of law once the suspension is up, but an attorney who is suspended for any longer than one year must petition for reinstatement and have the Supreme Court grant the petition before he or she can resume practicing.
According to the petition, Doe was arrested for driving under the influence in November 2010.
In February 2011, Doe met with Knight, an attorney with Doylestown, Pa.-based criminal defense firm Fioravanti & Knight, at his offices in Levittown, Pa., the petition said. They had never met before.
During the meeting, Doe told Knight that she had received an Accelerated Rehabilitative Disposition for a previous DUI and Knight quoted her a fee of $1,000 to assist her in entering a plea agreement, according to the petition.
Doe told Knight she did not have much money and eventually agreed to perform oral sex on him, which she did after Knight locked his office door, the petition said.
A few weeks later, according to the petition, Knight entered his appearance as Doe's attorney in the DUI case and remained her lawyer through the remainder of the case, according to the petition.
The petition said Doe performed oral sex on Knight on at least two more occasions following their first meeting but before the conclusion of the DUI case.
According to the petition, Knight never billed Doe nor collected any payment for his legal services.
The petition said that while there are no prior reported cases dealing with consensual sexual relations between a lawyer and a client in Pennsylvania, the Ohio Supreme Court has addressed the issue on at least two occasions.
In the 1999 case Cleveland Bar Association v. Feneli, according to the petition, the Ohio Supreme Court issued an 18-month suspension with the final six months stayed to an attorney who had oral sex with a client soon after agreeing to represent her and subsequently suggested she might be able to reduce her legal fees by continuing to perform sex acts.
In the 2004 case Akron Bar Association v. Williams, the Ohio Supreme Court issued a two-year suspension with the last 18 months stayed on compliance with certain conditions to an attorney who had sex with a "'vulnerable'" client and then lied about it in a deposition, according to the petition.
In addition, the Iowa Supreme Court, in the 2006 matter Iowa Supreme Court Attorney Disciplinary Board v. McGrath, issued an indefinite suspension with no possibility of reinstatement for three years where evidence supported a finding that an attorney had solicited sexual favors from former clients in lieu of legal fees.
One case that wasn't mentioned in the petition was that of Delaware attorney Joseph A. Gabay.
One day before the petition was filed in Knight's case, the Delaware Supreme Court temporarily suspended Gabay following his March 8 arrest for allegedly offering his legal services to two women in exchange for sexual favors, according to a report by Legal sibling publication Delaware Law Weekly.
But the petition in Knight's case said there were several mitigating factors to support a one-year suspension, including that Knight has expressed remorse and has cooperated with the Disciplinary Board by admitting to his wrongdoing and agreeing to spare Doe the embarrassment of testifying in a public proceeding.
The petition said Knight also agreed to keep Doe's identity a secret and that he had no prior disciplinary record in more than 27 years of practicing law.
The petition did state, however, that in addition to violating Rule 1.8(j), Knight also violated RPC 1.5(b), which requires a lawyer who has not regularly represented a client to communicate the basis or rate of the fee to the client in writing either before or soon after commencing representation.
"Although respondent had never previously represented Ms. Doe, he did not provide her a writing that communicated the basis or rate of his fee," the petition said. "Respondent never billed Ms. Doe for legal services nor collected any monetary payment from Ms. Doe for his legal representation."
Schwartzman could not be reached for comment.