In Re: Randy J. Fuerst , 157 So. 3d 569 ( 2014 )

Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #063
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 9th day of December, 2014, are as follows:
PER CURIAM:
2014-B -0647 IN RE: RANDY J. FUERST (Disciplinary Board)
Upon review of the findings and recommendations of the hearing
committee and disciplinary board, and considering the record,
briefs, and oral argument, it is ordered that Randy J. Fuerst,
Louisiana Bar Roll number 5767, be and he hereby is suspended
from the practice of law for six months, with all but three
months deferred, subject to the condition that any additional
misconduct by respondent within six months from the finality of
this judgment may be grounds for making the deferred portion of
the suspension executory, or imposing additional discipline, as
appropriate. It is further ordered that all investigative costs
related to the MRW matter and one-eighth of the total litigation
expenses are assessed against respondent in accordance with
Supreme Court Rule XIX, § 10.1, with legal interest to commence
thirty days from the date of finality of this court’s judgment
until paid.
JOHNSON, C.J., concurs.
KNOLL, J., concurs in result and assigns reasons.
WEIMER, J., concurs and assigns reasons.
12/09/14
SUPREME COURT OF LOUISIANA
NO. 14-B-0647
IN RE: RANDY J. FUERST
ATTORNEY DISCIPLINARY PROCEEDINGS
PER CURIAM
This disciplinary matter arises from formal charges filed by the Office of
Disciplinary Counsel (“ODC”) against respondent, Randy J. Fuerst, an attorney
licensed to practice law in Louisiana.
UNDERLYING FACTS
At all times relevant to this proceeding, respondent has maintained a law
office in Lake Charles, where his practice is almost exclusively confined to family
law matters. Beginning in 1998, after he and his wife were divorced, and
continuing through 2010, respondent was involved in consensual sexual
relationships with six women who had at one time either retained his services or
consulted with him regarding their divorce cases. With one exception, these sexual
relationships did not occur while the attorney-client relationship was ongoing. We
have briefly summarized these relationships below, referring to the women
involved only by their initials to protect their privacy.
CCL consulted with respondent regarding her divorce in February 1998, but
she did not retain him to represent her. Another lawyer filed a petition for divorce
on behalf of CCL in March 1998. In April 1998, CCL and respondent began
dating. Their relationship became sexually intimate, and continued until April
1999, when it ended amicably.
VADL retained respondent to represent her in her divorce. The parties were
divorced in August 2001 and the case was concluded in January 2002 when the
community property settlement was finalized. In the spring of 2002, VADL
initiated a social relationship with respondent which became sexually intimate. In
July 2002, the lawyer for VADL’s ex-husband requested that respondent execute
an act of correction to correct an error in the listing of a vehicle identification
number that had been included in the community property settlement. Respondent
signed the act of correction while his relationship with VADL was ongoing.
Respondent’s relationship with VADL ended amicably in February 2003.
MRW retained respondent to represent her in her divorce. In December
2001, respondent filed a petition for divorce on behalf of MRW pursuant to La.
Civ. Code art. 102. During the six-month waiting period to file the rule to show
cause why the divorce should not be granted, respondent and MRW engaged in a
sexual relationship. Respondent has acknowledged that his conduct with MRW
constituted a conflict of interest in violation of the Rules of Professional Conduct.
MLDG retained respondent to represent her in her divorce. Respondent
filed a petition for divorce on behalf of MLDG in May 2004. Shortly thereafter,
MLDG told respondent that she wanted to pursue a dating relationship, but
respondent said he could not date a client. MLDG then terminated respondent’s
representation. In June 2004, respondent filed a motion to withdraw from
MLDG’s case, and a lawyer from the law firm with which respondent was then
associated as “Of Counsel” enrolled on behalf of MLDG. Shortly thereafter,
respondent and MLDG began a sexual relationship which lasted until 2007, when
it ended amicably.
BDW retained respondent to represent her in her divorce. Respondent filed
a petition for divorce on behalf of BDW in September 2006. In October 2006,
BDW and her husband reconciled, and respondent withdrew from the
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representation. In November 2007, BDW and her husband separated again. BDW
consulted with respondent regarding her divorce at that time, but she did not retain
him to represent her. In January 2008, respondent and BDW began a sexual
relationship which lasted a couple of weeks but ended amicably thereafter.
BMP retained respondent to represent her in her divorce. Respondent filed a
petition for divorce on behalf of BMP in May 2008. On June 10, 2008, BMP
telephoned respondent to report that she thought she was being followed, and
asked whether she could come to his home. Respondent agreed. Shortly after
BMP arrived, BMP’s husband was seen outside the house taking photographs.
Respondent then escorted BMP to her car, and she left. The following day, June
11, 2008, respondent met with BMP and her parents and told them he was
withdrawing from the representation. Respondent likewise informed the lawyer
for BMP’s husband that he would no longer be involved in the case. BMP retained
new counsel to represent her, and a formal motion to substitute counsel was signed
on June 16, 2008. On June 21, 2008, respondent and BMP commenced a sexual
relationship during a trip to Houston together. The relationship between
respondent and BMP lasted for approximately two and half years, until late 2010,
when it ended amicably.
In addition to the relationships described above, the ODC presented the
claims of two women who either retained respondent’s services or consulted with
him in their divorce cases but who were not involved in sexual relationships with
him.
KGH retained respondent to represent her in her divorce. Respondent
represented KGH between August 2001 and June 2002, during which time she
claims that he asked her out to dinner and then hugged her goodbye and attempted
to kiss her. Although respondent admitted that he hugged KGH goodbye upon
their departure from a dinner meeting, he denied that he attempted to kiss her.
3
SKS consulted with respondent regarding her divorce in 2007, but she did
not retain him to represent her. SKS claims that respondent made inappropriate
comments to her during the initial consultation. Respondent denied doing so.
DISCIPLINARY PROCEEDINGS
BMP’s ex-husband filed a complaint against respondent with the ODC in
October 2008. In June 2012, the ODC filed formal charges against respondent,
alleging that his relationships violated the following provisions of the Rules of
Professional Conduct: Rules 1.7(a)(2) (a lawyer shall not represent a client if the
representation involves a concurrent conflict of interest wherein there is a
significant risk that the representation of one or more clients will be materially
limited by the lawyer’s responsibilities to another client, a former client or third
person, or by a personal interest of the lawyer), 1.8(b) (a lawyer shall not use
information relating to the representation of a client to the disadvantage of the
client unless the client gives informed consent), 1.10 (imputation of conflicts of
interest), 2.1 (in representing a client, a lawyer shall exercise independent
professional judgment and render candid advice), and 8.4(d) (conduct prejudicial
to the administration of justice).
Formal Hearing
After respondent answered the formal charges, the matter proceeded to a
formal hearing on the merits. The hearing committee conducted the hearing over
the course of four days in January 2013. Both respondent and the ODC introduced
documentary evidence and called numerous witnesses to testify before the
committee. Respondent also testified on his own behalf and on cross-examination
by the ODC.
4
The ODC’s witnesses included the following: BMP’s ex-husband; attorney
John Green, Jr. (attorney for BMP’s ex-husband); Buddy Stockwell, the Executive
Director of the Lawyers Assistance Program (“LAP”); BMP’s mother; BMP; CCL;
MRW; BDW’s ex-husband; BDW; MLDG; VADL’s ex-boyfriend; VADL; KGH;
and SKS.
Respondent’s witnesses consisted of the following: attorney Michael
McHale (regarding the MRW matter); attorney Evelyn Oubre (regarding the BMP
matter); attorney Lynsay Fontenot (regarding the SKS matter); Susan Arnold
(respondent’s former wife and character witness); Katina Soliz (respondent’s office
manager); Laurie Fontenot and Stephanie Young (respondent’s paralegals);
attorney Todd Melton (regarding the BDW matter); attorney Mindy Heidel
(character witness); Dr. Patricia Post (respondent’s previous psychologist); Mary
Richardson (character witness); Dr. Warren Lowe (respondent’s current
psychologist); Rabbi Barry Weinstein (character witness); Judge Lilynn Cutrer
(character witness); and attorney Jim Ortego (character witness).
The documentary evidence included respondent’s sealed medical records
and the sealed deposition testimony of medical professionals at Pine Grove
Behavioral Health and Addiction Services who evaluated respondent in January
2012. The Pine Grove evaluation indicated that respondent is neither a sex addict
nor a sexual predator but does have professional boundary issues. Sealed records
from respondent’s psychologist, Dr. Warren Lowe, indicate that respondent
attended a professional boundaries course in November 2011 and continues to
participate in an ongoing, weekly advanced ethics course on professional
boundaries. Respondent has also attended individual counseling sessions with Dr.
Lowe since July 2011.
5
Hearing Committee Report
After considering the evidence and testimony presented at the hearing, the
hearing committee made the following factual findings:
The CCL matter – The committee found CCL’s testimony very credible.
She consulted with respondent about a divorce but did not hire him, instead
choosing to hire another attorney. About a month after the consultation, she began
dating respondent. This relationship lasted approximately one year, and the
breakup was friendly and positive. In light of these facts, the committee found no
clear and convincing evidence of any violations of the Rules of Professional
Conduct in this matter.
The VADL matter – The committee found that respondent represented
VADL in divorce proceedings. Six months after the divorce was granted,
respondent and VADL began a sexual relationship. The evidence revealed that
respondent signed off on an act of correction during the time he and VADL were
involved sexually. This document corrected an error in the listing of the vehicle
identification number on an automobile that had been part of a property settlement
signed earlier by the parties. VADL believed respondent was no longer her
attorney once the divorce was final. The committee found that VADL did not
consider respondent to be her attorney at the time they were involved in a sexual
relationship. The committee determined respondent’s signing of the act of
correction was not an act in furtherance of the divorce but simply a ministerial act
requested by opposing counsel to correct a document that had already been
executed prior to any sexual relationship developing between VADL and
respondent. In light of these facts, the committee found no clear and convincing
evidence of any violations of the Rules of Professional Conduct in this matter.
The MRW matter – The committee found that respondent represented MRW
in divorce proceedings. The only matter left to complete was to toll the six-month
6
waiting period to confirm the divorce. During this waiting period, MRW invited
respondent to have a drink at her house. Respondent went to her house, and they
had a sexual encounter. Based on these facts, the committee found that respondent
violated Rules 1.7(a)(2) and 8.4(d) of the Rules of Professional Conduct in this
matter.
The KGH matter – KGH testified that respondent hugged her and attempted
to kiss her after they departed from a dinner meeting. Thereafter, KGH continued
with respondent as her attorney for approximately two years, and the committee
accepted respondent’s explanation that he did hug her, as he does with most
people, but that he did not attempt to kiss her. Based on these findings, the
committee found no evidence of any violations of the Rules of Professional
Conduct in this matter.
The MLDG matter – The committee found that respondent filed a divorce
petition for MLDG on May 19, 2004, the same day she initially consulted with
him. Later, MLDG expressed an interest in dating respondent, but he told her he
could not date a client. Her response was that she would get another attorney.
Respondent referred her to another attorney in the law firm with which he was “Of
Counsel” and filed a motion to withdraw. MLDG’s testimony was very credible
and powerful. She did not enter into a social or sexual relationship with
respondent until after he withdrew as her attorney. She also stated that their
relationship was positive and beneficial to her. The committee found that,
although respondent was “Of Counsel” to the same law firm in which MLDG’s
new attorney worked, any personal interest of respondent did not present a
significant risk of materially limiting her new attorney’s representation. MLDG’s
testimony also clearly indicated that her husband’s behavior was not different after
she began dating respondent than it was before. Given these facts, the committee
7
found no clear and convincing evidence of any violations of the Rules of
Professional Conduct in this matter.
The BDW matter – The committee found that, in August 2006, BDW hired
respondent to file a petition for divorce, which he did. Shortly thereafter, she
called respondent and requested that the petition be dismissed. Respondent
complied with BDW’s wishes before the petition was served on her husband, and
respondent filed a motion to withdraw as BDW’s counsel in October 2006. In
November 2007, BDW met with respondent to review divorce documents another
attorney was going to file on behalf of her and her husband. Since she and her
husband had agreed to most issues, BDW told respondent she did not need an
attorney and left his office without hiring him. She felt that any professional
relationship with respondent was over once he finished reviewing her divorce
documents. BDW’s husband filed for divorce in December 2007. After the
petition for divorce was filed, BDW and respondent went to a social event and, two
weeks later, began a sexual relationship that lasted approximately one month.
BDW did not feel respondent had taken advantage of her, and she and her husband
got along well after the divorce. Based on these facts, the committee found no
clear and convincing evidence of any violations of the Rules of Professional
Conduct in this matter.
The SKS matter – SKS testified that respondent made inappropriate
comments to her during their initial consultation. The committee determined
respondent’s testimony that he did not make any inappropriate remarks was more
credible than SKS’s testimony. Based on these findings, the committee found no
evidence of any violations of the Rules of Professional Conduct in this matter.
The BMP matter – The committee found that BMP hired respondent on
April 28, 2008 to file a petition for divorce. The petition for divorce was filed on
May 6, 2008. On June 10, 2008, BMP came to respondent’s home uninvited to
8
complain that someone was following her. Respondent invited her into his house
for a minute. During the course of the conversation, BMP began talking in an
affectionate way, and respondent told her that he needed to be her attorney.
During the conversation, respondent and BMP saw flashes through the stained
glass windows of respondent’s home, which flashes were caused by BMP’s
husband taking pictures of her car in the front of respondent’s house. Instead of
calling the police, respondent told BMP that he would deal with the matter the next
day with her husband’s attorney.
The next day, respondent and an associate met with BMP and her parents.
The entire domestic relationship between BMP and her husband had been
extremely acrimonious, and one of the things that caused extreme problems with
the divorce was the fact that BMP’s husband did not want her to use respondent as
her attorney. BMP’s husband had actually provided a list of attorneys she could
use. The representation was made even more problematic by BMP being at
respondent’s house the night before and respondent witnessing her husband’s
violation of the restraining order in the case. Ultimately, everyone agreed that
respondent would withdraw as BMP’s attorney, and BMP chose attorney Evelyn
Oubre to represent her.
Respondent filed a motion to withdraw, and Ms. Oubre enrolled as BMP’s
counsel on June 16, 2008. On June 21, 2008, respondent and BMP went on a trip
to Houston where they began a sexual relationship that lasted two and a half years.
BMP’s testimony was very credible. She did not appear to have been vulnerable or
taken advantage of by respondent. She considered their relationship to be a good
one. Based on these facts, the committee found no clear and convincing evidence
of any violations of the Rules of Professional Conduct in this matter.
Based on the above findings in these several matters, the committee
determined that, with the exception of MRW, the women with whom respondent
9
had sexual relationships were no longer clients at the time the sexual contact
occurred based upon their belief and understanding that respondent was no longer
their attorney or that respondent had manifested to them that he had withdrawn as
their attorney.1 As such, the only violation of the Rules of Professional Conduct
was in connection with respondent’s relationship with MRW.
The committee determined that respondent negligently violated duties owed
to his client and the legal profession. There was no apparent harm, but the
potential for harm existed. Citing the ABA’s Standards for Imposing Lawyer
Sanctions, the committee determined the baseline sanction is suspension.
In aggravation, the committee found substantial experience in the practice of
law (admitted 1981). The committee also found the following mitigating factors:
absence of a prior disciplinary record, absence of a dishonest or selfish motive, full
and free disclosure to the disciplinary board and a cooperative attitude toward the
proceedings, character or reputation, delay in the disciplinary proceedings, and
remorse.
Turning to the issue of an appropriate sanction, the committee recommended
respondent be suspended from the practice of law for thirty days, fully deferred,
subject to one year of unsupervised probation. The committee also recommended
respondent be assessed with the costs of these proceedings.2
The ODC filed an objection to the hearing committee’s report and
recommendation, arguing that the committee failed to find violations of the Rules
1
In support of this finding, the committee cited Louisiana State Bar Ass’n v. Bosworth, 481 So.
2d 567 (La. 1986), wherein the court stated that “[t]he existence of an attorney-client relationship
turns largely on the client’s subjective belief that it exists.”
2
Respondent objected to the portion of the committee’s ruling assessing him with costs, which
totaled $17,900.59 at the time the committee issued its report. He argued that the costs and
expenses unrelated to the charge involving MRW, the only charge found by the committee to
have been proven, should not be assessed against him. The committee agreed with respondent’s
position but did not believe it had the authority to recommend an adjustment of the costs.
10
of Professional Conduct where they existed and recommended a sanction that is
inadequate to address the extent of the misconduct in which respondent engaged.
Disciplinary Board Recommendation
After review, the disciplinary board determined the hearing committee’s
factual findings are supported by the record and are not manifestly erroneous. The
board further determined the record supports the committee’s conclusion that
respondent did not violate the Rules of Professional Conduct except with regard to
the MRW matter. The board adopted the committee’s finding that respondent
violated Rules 1.7(a)(2) and 8.4(d) with respect to MRW and additionally found
that respondent violated Rule 2.1 in the MRW matter.
Based on these findings, the board determined respondent negligently
violated duties owed to his client. While the misconduct did not cause actual
harm, the risk for harm was great. Considering the ABA’s Standards for Imposing
Lawyer Sanctions, the board determined the baseline sanction is suspension.
In aggravation, the board found substantial experience in the practice of law
and the potential for harm. The board also found the following mitigating factors:
absence of a prior disciplinary record, absence of a dishonest or selfish motive, full
and free disclosure to the disciplinary board and a cooperative attitude toward the
proceedings, character or reputation, remorse, and no apparent harm to any clients.
As a sanction, the board recommended respondent be suspended from the
practice of law for thirty days, fully deferred, subject to one year of unsupervised
probation. Regarding the costs and expenses, a majority of the board
recommended respondent be assessed with only the investigative costs related to
the MRW matter and only one-eighth of the total litigation expenses.
11
The ODC filed an objection to the disciplinary board’s recommendation.
Accordingly, the case was docketed for oral argument pursuant to Supreme Court
Rule XIX, § 11(G)(1)(b).
DISCUSSION
Bar disciplinary matters fall within the original jurisdiction of this court. La.
Const. art. V, § 5(B). Consequently, we act as triers of fact and conduct an
independent review of the record to determine whether the alleged misconduct has
been proven by clear and convincing evidence. In re: Banks, 09-1212 (La.
10/2/09), 18 So. 3d 57. While we are not bound in any way by the findings and
recommendations of the hearing committee and disciplinary board, we have held
the manifest error standard is applicable to the committee’s factual findings. See
In re: Caulfield, 96-1401 (La. 11/25/96), 683 So. 2d 714; In re: Pardue, 93-2865
(La. 3/11/94), 633 So. 2d 150.
In this matter, the hearing committee and the disciplinary board determined
that respondent committed attorney misconduct by engaging in a sexual
relationship with a current client, MRW. The record supports this finding.
However, the ODC also argues that the ethical prohibitions against attorney-client
sexual relationships should be extended to former clients, and should likewise
apply in instances in which the lawyer has been consulted by a prospective client
but no attorney-client relationship is ultimately formed. We find no support for
this position in the Rules of Professional Conduct. Therefore, we find no
misconduct in respondent’s relationships with BMP, MLDG, VADL, CCL, or
BDW. Finally, the ODC alleged respondent acted inappropriately toward two
women, KGH and SKS, but did not engage in sexual relationships with them. The
hearing committee made factual findings that respondent did not engage in any
12
inappropriate conduct toward these women. We find no manifest error in the
committee’s factual findings in this regard.
Although respondent’s sexual relationship with MLDG does not constitute
misconduct, we do find that he violated Rule 1.10 by referring her legal matter to
another lawyer in the law firm with which he was associated as “Of Counsel.” A
lawyer who is “Of Counsel” to a law firm is considered to be a member of the firm
for purposes of analyzing imputed disqualification questions. ABA/BNA
Lawyers’ Manual on Professional Conduct, 91:511-512 (2012). After respondent
was discharged by MLDG, he was required to refer her divorce case to a lawyer
outside his law firm prior to the time that he became involved in a personal
relationship with her.
Having found evidence of professional misconduct, we now turn to a
determination of the appropriate sanction for respondent’s actions. In determining
a sanction, we are mindful that disciplinary proceedings are designed to maintain
high standards of conduct, protect the public, preserve the integrity of the
profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513
So. 2d 1173 (La. 1987). The discipline to be imposed depends upon the facts of
each case and the seriousness of the offenses involved considered in light of any
aggravating and mitigating circumstances. Louisiana State Bar Ass’n v.
Whittington, 459 So. 2d 520 (La. 1984).
We find respondent negligently violated duties owed to his clients. While
respondent’s misconduct did not cause actual harm, the potential for harm was
great. Considering the ABA’s Standards for Imposing Lawyer Sanctions, the
applicable baseline sanction is suspension.
In aggravation, we find that respondent has substantial experience in the
practice of law. In mitigation, we find the following factors: absence of a prior
disciplinary record, absence of a dishonest or selfish motive, full and free
13
disclosure to the disciplinary board and a cooperative attitude toward the
proceedings, character or reputation, and remorse.
Considering all the facts of this case, we conclude the appropriate sanction
for respondent’s misconduct is a six-month suspension from the practice of law.
However, in light of the significant mitigating factors present, we will defer all but
three months of that sanction, subject to the condition that any additional
misconduct by respondent within six months from the finality of this judgment
may be grounds for making the deferred portion of the suspension executory, or
imposing additional discipline, as appropriate.
With regard to costs, we believe the board’s division of costs is equitable
considering the novel nature of these proceedings. Accordingly, we will not
disturb the award of costs.
DECREE
Upon review of the findings and recommendations of the hearing committee
and disciplinary board, and considering the record, briefs, and oral argument, it is
ordered that Randy J. Fuerst, Louisiana Bar Roll number 5767, be and he hereby is
suspended from the practice of law for six months, with all but three months
deferred, subject to the condition that any additional misconduct by respondent
within six months from the finality of this judgment may be grounds for making
the deferred portion of the suspension executory, or imposing additional discipline,
as appropriate. It is further ordered that all investigative costs related to the MRW
matter and one-eighth of the total litigation expenses are assessed against
respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest
to commence thirty days from the date of finality of this court’s judgment until
paid.
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12/09/14
SUPREME COURT OF LOUISIANA
NO. 14-B-0647
IN RE: RANDY J. FUERST
ATTORNEY DISCIPLINARY PROCEEDINGS
KNOLL, J., concurs and assigns reasons.
While I fully concur with the majority’s decision to suspend respondent
from the practice of law, I write separately because my reasoning differs from that
of the majority.
At the outset, I agree with the majority’s conclusion that respondent
committed misconduct by engaging in a sexual relationship with a current client,
but I strongly disagree with the majority’s finding respondent committed no
misconduct with regard to his relationships with his former clients.
I acknowledge the question of whether a sexual relationship with a former
client constitutes an ethical violation is res nova in our jurisprudence. However,
pervading our case law concerning the lawyer’s relationship with current clients is
the overarching notion that a lawyer is forbidden from advancing his personal
interests at the expense of his client’s interests. This duty may persist even after the
termination of the attorney-client relationship in cases where the lawyer’s actions
may have the potential to harm the former client’s interests.
When a sexual relationship arises during the course of the representation,
immediate termination of the attorney-client relationship is a mandatory step in
ameliorating the harm to the client’s legal interests. However, termination does
not entirely eliminate the lawyer’s ethical obligations to his now former client.
Rather, as shown by Rule 1.9, an attorney has continuing duties toward former
clients which do not cease merely because the professional relationship has ended.
Respondent’s conduct may not directly impact any of the specific duties
toward former clients set forth in Rule 1.9. Nonetheless, courts have recognized
that the specific duties in Rule 1.9 derive from a general duty of loyalty to the
former client. See Brent v. Smathers, 529 So. 2d 1267, 1269 (Fla. App. 3d Dist.
1988) (explaining the Florida version of Rule 1.9 “also imposes upon the lawyer a
duty of loyalty”); see also United States v. Culp, 934 F. Supp. 394 (M.D. Fla.
1996) (holding that “under the ethical canons a duty of loyalty exists apart and
distinct from the duty to maintain client confidences”).
Inherent in the duty of loyalty is the corresponding duty to protect the
client’s best interests. While this duty primarily impacts ongoing representation,
the attorney must continue to act in a way so as not to actively harm the former
client’s best interests even after the professional relationship ceases.
The facts of this case illustrate the potential danger a sexual relationship
between the lawyer and a former client may pose to the client’s interests even after
the relationship is terminated. For example, concerning the clients identified as
BMP and MLDG, respondent commenced a sexual relationship with each of these
women after his representation was terminated but before the underlying domestic
proceedings were concluded. A lawyer’s decision to begin a relationship while
domestic proceedings are ongoing can present a range of foreseeable problems
which have a clear potential to harm the former client’s best interests. Depending
upon the stage of the underlying proceeding, the sexual relationship could raise
fault issues and impair the former spouse’s ability to seek support. By interjecting
himself into the former client’s personal life, the lawyer might be transformed into
a witness in the proceeding. At the very least, the relationship might increase
acrimony between the spouses and impact issues such as child support and
property settlements.
2
Considering these factors, I would find respondent had a duty to refrain from
entering into a sexual relationship with his former clients until the underlying
proceedings are concluded. By failing to do so, respondent has placed his personal
interests ahead of his professional obligations. He has potentially jeopardized his
clients’ legal matters and burdened them by forcing them to find new legal
representation.1 Respondent’s actions convincingly demonstrate he falls far short
of the high expectations we place on all members of the bar. The frequency of
respondent’s sexual involvement with numerous female clients evidences a pattern
of conduct by means of his practice which degrades his obligations to the client
and demeans our time-honored profession. His actions have not only adversely
affected the interests of his clients, but negatively impact the public’s confidence in
the legal profession. In my opinion, this conduct warrants sanctions.
Accordingly, I respectfully concur in the result reached by the majority’s
opinion.
1
The majority finds respondent should be disciplined based on his decision to refer a former
client to another lawyer in the law firm with which he was associated. However, I would
pretermit a discussion of his issue, as I find respondent never should have created a situation in
which his personal interests would preclude him from representing his client.
3
12/09/14
SUPREME COURT OF LOUISIANA
NO. 14-B-0647
IN RE: RANDY J. FUERST
ATTORNEY DISCIPLINARY PROCEEDING
WEIMER, J., concurs.
I agree with the concurrence of Justice Knoll, but would add that an attorney’s
duty to refrain from entering into a sexual relationship with a former client stems
from the prohibition against conduct prejudicial to the administration of justice, as
described in Rule 8.4(d). This duty would terminate when the underlying
proceedings are concluded or when the sexual relationship would pose no adverse
legal consequences to the client. As this court has previously explained, “[t]he
proscription against conduct that is prejudicial to the administration of justice most
often applies to litigation-related misconduct. Louisiana State Bar Ass'n v.
Harrington, 585 So. 2d 514, 520 n.4 (La.1990) (citing examples). However, Rule
8.4(d) also reaches conduct that is uncivil, undignified, or unprofessional, regardless
of whether it is directly connected to a legal proceeding.” In re Downing, 05-1553,
p. 12 n.5 (La. 5/17/06), 930 So. 2d 897, 904. In this matter, the respondent was
required to refrain from post-representation sexual conduct with the client that could
foreseeably and negatively impact the legal proceeding for which the client had
retained the respondent’s representation.