2020 Ohio 517
Ohio2020Background
- Matthew Fortado, admitted 1977, had prior unrelated suspension in 1996; Akron Bar Association charged him with violating Prof.Cond.R. 1.8(j).
- In Feb 2011 M.S. retained Fortado; about six months into representation they began an intimate sexual relationship; the underlying matter settled in Feb 2012.
- Fortado admitted it was wrong to begin the sexual relationship while representing the client and cooperated with the disciplinary process; he presented character witnesses and mitigation evidence.
- Parties initially executed a consent-to-discipline agreement calling for a conditionally stayed one-year suspension; the hearing panel rejected that agreement and held a hearing.
- The Board recommended a one-year suspension with six months stayed; the Supreme Court sustained the rule violation but imposed a one-year suspension fully stayed on condition of no further misconduct.
Issues
| Issue | Akron Bar Assn. (Relator) Argument | Fortado Argument | Held |
|---|---|---|---|
| Whether Fortado violated Prof.Cond.R. 1.8(j) by commencing sexual relations with a client during representation | Sexual relationship began during representation; rule prohibits such conduct absent preexisting sexual relationship | Admitted relationship but portrayed it as consensual and later continuing as a committed relationship | Court found a violation of Prof.Cond.R. 1.8(j) and accepted respondent’s admission |
| Whether the panel erred in rejecting the parties’ consent-to-discipline agreement | Panel properly exercised discretion; relator sought an actual suspension but had agreed to conditional stay | Argued panel’s rejection prejudiced him because parties had agreed to a conditionally stayed one-year suspension | Rejection was within the panel’s discretion; court overruled Fortado’s objection to the rejection |
| Appropriate sanction: actual suspension vs. fully stayed suspension | Cited precedent tending to impose actual suspensions for client-sexual relationships; recommended one-year with six months stayed | Argued facts (consent, no coercion, no proven harm, acceptance of responsibility, strong character evidence) warrant a fully stayed one-year suspension | Court sustained Fortado’s objection to the board’s recommended partial stay and imposed a one-year suspension fully stayed on condition of no further misconduct |
Key Cases Cited
- Cleveland Metro. Bar Assn. v. Sleibi, 144 Ohio St.3d 257 (2015) (two-year suspension where attorney engaged in sexual relations with multiple clients and sent explicit texts)
- Disciplinary Counsel v. Hubbell, 144 Ohio St.3d 334 (2015) (fully stayed six-month suspension for attempted romantic pursuit of pro bono custody client)
- Disciplinary Counsel v. Mason, 156 Ohio St.3d 398 (2019) (one-year suspension with six months stayed where attorney pled in related criminal matter and failed to accept responsibility)
- Disciplinary Counsel v. Leon, 155 Ohio St.3d 582 (2018) (one-year suspension with six months stayed where attorney engaged in sexual relationship and mishandled client funds/fees)
- Disciplinary Counsel v. Bartels, 151 Ohio St.3d 144 (2016) (one-year suspension with six months stayed for sexual texts and prior reprimand)
- Disciplinary Counsel v. Sarver, 155 Ohio St.3d 100 (2018) (explaining Prof.Cond.R. 1.8(j) is per se violation; consent and lack of apparent prejudice are not mitigating)
- Disciplinary Counsel v. Booher, 75 Ohio St.3d 509 (1996) (power imbalance between lawyer and client renders apparent consent ineffective)
- Disciplinary Counsel v. Krieger, 108 Ohio St.3d 319 (2006) (financial support and free representation can amount to paying a client to continue a sexual relationship)
- Disciplinary Counsel v. Siewert, 130 Ohio St.3d 402 (2011) (fully stayed six-month suspension where lawyer had sexual relationship with chemically dependent client but cooperated and showed good character)
- Cleveland Metro. Bar Assn. v. Paris, 148 Ohio St.3d 55 (2016) (fully stayed six-month suspension in case involving unwelcome advances and other misconduct)