Our office has handled a number of sexual conduct allegations where even where the allegations clearly could not be proven by clear and convincing evidence and there were serious credibility issues with the complainants, the Boards wanted the professional to be on probation and required the matters to go to hearing.
A recent case involving the State Bar shows how an attorney's sexual misconduct case has been pending for six years and how the Chief Trial Counsel's Office wanted a harsher discipline than was originally rendered and appealed what seemingly was a fair decision for the attorney. The attorney now faces potential disbarment.
Both the California Rules of Professional Conduct and the ABA Model Rules of Professional Conduct prohibit lawyers and clients from engaging in “sexual relations” unless they predated the representation. Even then, however, other ethics rules may apply to the extent that sexual involvement may adversely impact the attorney-client relationship.
On June 17, 2010, a State Bar Court judge has recommended disbarment for Hollister, California lawyer Patrick Earl Marshall (age 63) – who had sexual relations with two incarcerated clients when he was a contract public defender. This recommendation followed arguments from the State Bar prosecutor’s office that a stayed suspension and probation was too lenient. Mr. Marshall will be placed on involuntary inactive enrollment effective June 18 pending approval by the California Supreme Court of the disbarment recommendation.
This case has a lengthy history. In May 2004, Mr. Marshall was charged by the Chief Trial Counsel’s Office with engaging in sexual misconduct with two female clients who were incarcerated in San Benito County at the time. Over the objections of the Chief Trial Counsel’s Office, Mr. Marshall was admitted to the State Bar’s Alternative Discipline Program, which allows for substance abuse or mental health treatment before a case is decided. Mr. Marshall entered into an agreement to assist in his recovery process from depression disorder, sexual disorder, narcissistic personality disorder and obsessive compulsive disorder.
When he completed the program in 2007, the State Bar Court Hearing Department imposed a one-year stayed suspension and two years’ probation for his misconduct. The Chief Trial Counsel’s office appealed the decision to the Supreme Court, which, in 2009, ordered the State Bar Court to conduct further hearings.
On appeal, the decision was not favorable for Mr. Marshall. “Despite respondent’s successful completion of the ADP and LAP [Lawyer Assistance Program] and years of therapy,” State Bar Court Judge Lucy Armendariz wrote in her disbarment decision. The judge argued that since Mr. Marshall argued that the sex was consensual, it was apparent that he “has not fully grasped the egregiousness of his offenses and the extreme harm he had caused the administration of justice and integrity of the legal profession.” Judge Armendariz noted that Marshall went so far as to argue that a mitigating factor should be that his misconduct accounted for no more than “an hour’s total duration.” Thus, the judge used Mr. Marshall's arguments to show that he was not accepting full responsibility for his behavior. This can be a fine line in administrative cases.
“Violation of one’s professional and ethical duties is not measured by the length of time,” Judge Armendariz wrote. “Having improper sexual relations with a client breaches the basic notions of trust and integrity and endangers public confidence in the legal profession, irrespective of its duration . . . His persistent claims that the sexual relations were consensual and that [one woman] never told him to stop are indeed troubling and adversely reflect on his fitness to practice law.” The judge referred to an Iowa Supreme Court decisions which stated that “‘the professional relationship renders it impossible for the vulnerable layperson to be considered ‘consenting.’”
Sexual misconduct can encompass a variety of intimate relationships. The California rule defines “sexual relations” as “sexual intercourse or the touching of an intimate part of another person for the purpose of sexual arousal, gratification or abuse.” This can cover even kissing or hugging depending on the circumstances. If one can look at the issue before anything occurs, the experienced professional will keep his or her personal life out of the office. A professional's reputation for honesty and integrity will remain intact by keeping professional relationships professional.
If you are the subject of a sexual misconduct complaint, it is important to seek counsel at the earliest possible time. If you are asked to be interviewed by any Board investigator it is key to consult an experienced Los Angeles administrative attorney, Los Angeles Medical Board attorney, Los Angeles State Bar attorney, or an attorney experienced with your particular board or agency.
Posted by Tracy Green, Esq. Any questions should be directed to Tracy Green, a very experienced California administrative board attorney, California board attorney and California license attorney. You can email her at treenassoc.com">tgreen@greenassoc.com or call her at 213-233-2261.
The firm focuses its practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing health care providers, attorneys and other licensed professionals in administrative actions in California and throughout the country. Their website is: http://www.greenassoc.com/
