FOR THE RESPONDENT FOR THE INDIANA SUPREME COURT
Kevin P. McGoff Donald R. Lundberg,
Keifer & McGoff Fredrick L. Rice,
8900 Keystone Crossing Suite 400 115 West Washington Street, Suite 1165
Indianapolis, IN 46240 Indianapolis, IN 46204
SUPREME COURT OF INDIANA
IN THE MATTER OF )
) Case No. 64S00-9905-DI-311
JAMES V. TSOUTSOURIS )
June 12, 2001
The respondent, James V. Tsoutsouris, engaged in a sexual relationship with his client
while he was representing her in a dissolution matter. He claims such
a relationship was not improper. Alternatively, he argues that even if it
were, it merits only a private reprimand. We disagree and suspend him
from the practice of law in Indiana for 30 days.
Having been admitted to the bar of this state in 1967, the respondent
is subject to our disciplinary jurisdiction. A hearing officer was appointed to
this case, and, after a hearing, tendered her report to this Court.
The hearing officer determined the respondent violated Ind.Professional Conduct Rule 1.7(b) and 8.4(d)
by engaging in a sexual relationship with a current client.
The respondent, pursuant to Ind.Admission and Discipline Rule 23(15), has filed a
for Review of the hearing officers report challenging the hearing officers findings and
recommendation as to sanction. Our review of disciplinary cases is de novo
in nature, and we will review the entire record presented. Matter of
Cherry, 715 N.E.2d 382 (Ind. 1999). The hearing officers findings receive emphasis
due to the hearing officers unique opportunity for direct observation of witnesses, but
this Court reserves the right to make the ultimate determination. Matter of
Smith, 572 N.E.2d 280 (Ind. 1990).
Within that review framework, we now find that a client hired the respondent
in 1994 to represent her in a child support modification action filed by
her first husband. The client paid the respondent a total fee of
$350. While that child support matter was pending, the client also hired
the respondent to represent her in a dissolution action against her second husband.
While the respondent was representing the client in the fall of 1994, the
respondent and the client began dating and engaged in consensual sexual relations several
times. The respondent did not inform the client how a sexual relationship
between them might impact his professional duties to her or otherwise affect their
The respondent ended the sexual relationship a few weeks after it began in
1994. The client hired the respondent for a third legal matter in
1996. In 1997, the client sought psychological treatment. One of the
subjects discussed during that treatment was her personal relationship with the respondent three
In his Petition for Review, the respondent contends his consensual sexual relationship with
his client during his representation of her does not violate the Rules of
Professional Conduct. He bases that argument on the lack of evidence establishing
that his sexual relationship with the client impaired his ability to represent the
client effectively. The respondent contends that a sexual relationship between attorney and
client in Indiana is professional misconduct only when it affects the quality of
the attorneys representation of the client. The respondent also suggests that Indiana
law in 1994 was ambiguous with respect to the impropriety of sexual relations
between attorney and client. Therefore, he argues a finding of misconduct would
be inappropriate because he was unaware of his obligations to avoid sexual contact
with his client at the time of such contact.
Rule 1.7(b) prohibits representation of a client if the representation "may be materially
limited . . . by the lawyer's own interests." Although the rule
contains general exceptions in instances where the lawyer reasonably believes that the representation
will not be adversely affected and the client consents after consultation
1.7(b)(1) and (2)], these exceptions will not generally avail when the "lawyer's own
interests" at issue are those related to a lawyer/client sexual relationship. In
effect, the respondent argues that sexual relationships between lawyers and clients ought to
be authorized unless there is evidence of impaired representation. We decline to
adopt that position.
Twenty-five years ago this Court suspended a lawyer for sexual misconduct with clients
and warned of the professional conflicts such intimate associations create. Matter of
Wood, 358 N.E.2d 128 (Ind. 1976) (finding a violation of Rule 5-101(A) of
the Code of Professional Responsibility the predecessor to Rule 1.7(b) of the
Rules of Professional Conduct.) In a subsequent case involving the same attorney
accused of similar misconduct, this Court ruled that the intermeshing of a lawyers
professional duties with the lawyers personal sexual interests creates a situation where the
exercise of professional judgment on behalf of a client would be affected by
personal interests in violation of Rule 5-101(A). Matter of Wood, 489 N.E.2d
1189, 1190 (Ind. 1986).
Six years after our second Wood decision, the American Bar Association issued an
ethics opinion on the subject of sexual relationships between attorneys and clients.
ABA Formal Ethics Opinion No. 92-364, Sexual Relations with Client. The ABA
made it clear that attorneys should avoid sexual contact with their clients.
This position is further bolstered by the recent proposed revisions of the ABA
Model Rules of Professional Conduct resulting from a three-year comprehensive study and evaluation
by the ABA Commission on Evaluation of the Rules of Professional Conduct (commonly
referred to as the "Ethics 2000" Commission). These revisions include a proposed
new rule explicitly declaring that "A lawyer shall not have sexual relations with
a client unless a consensual sexual relationship existed between them when the client-lawyer
relationship commenced." Proposed Model Rule 1.8(j). The proposed rule is further supported
by commentary reflecting important policy considerations.
See footnote The concerns articulated in both ABA
Ethics Opinion No. 92-364 and Comment 17 to Proposed ABA Model Rule 1.8
reflect important policy considerations that are of concern to this Court.
Matter of Grimm, 674 N.E.2d 551 (Ind. 1996), this Court found an
attorney's "sexual relationship with his client during the pendency of dissolution and post-dissolution
matters materially limited his representation of her," thereby violating Prof.Cond.R. 1.7(b). Grimm,
674 N.E.2d at 554. We explained:
In their professional capacity, lawyers are expected to
provide emotionally detached, objective analysis of
legal problems and issues for clients who may be
embroiled in sensitive or difficult matters. Clients,
especially those who are troubled or emotionally
fragile, often place a great deal of trust in the lawyer
and rely heavily on his or her agreement to provide
professional assistance. Unfortunately, the lawyers
position of trust may provide opportunity to
manipulate the client for the lawyers sexual benefit.
Where a lawyer permits or encourages a sexual
relationship to form with a client, that trust is betrayed
and the stage is set for continued unfair exploitation
of the lawyers fiduciary position. Additionally,
the lawyers ability to represent effectively the client
may be impaired. Objective detachment, essential for
clear and reasoned analysis of issues and independent
professional judgment, may be lost.
Id., 674 N.E.2d at 554.
Grimm is one of several cases decided under the Rules of Professional Conduct
in which this Court has held that consensual sexual relationships with clients constitute
professional misconduct. In Matter of Hawkins, 695 N.E.2d 109 (Ind. 1998), we
found a violation of Rule 1.7(b) and held that, by "having sexual relations
with his client, the respondent promoted and served his own interests and thereby
threatened material limitation of his representation of her." See also Matter of
Bamberth, 737 N.E.2d 1157 (Ind. 2000) ("By having a consensual sexual relationship with
a client during the pendency of the representation, the respondent engaged in an
impermissible conflict of interest in violation of Ind. Professional Conduct Rule 1.7(b)").
We hold that the respondent violated Prof.Cond.R. 1.7(b) and prejudiced the administration of
justice in violation of Prof.Cond.R. 8.4(d).
Given our finding of misconduct, we must determine an appropriate sanction. In
doing so, we consider the misconduct, the respondents state of mind underlying the
misconduct, the duty of this court to preserve the integrity of the profession,
the risk to the public in allowing the respondent to continue in practice,
and any mitigating or aggravating factors. Matter of Mears, 723 N.E.2d 873
(Ind. 2000). As a mitigating factor only, we find no evidence that
the respondents sexual relationship with his client actually impaired his representation of her.
In fact, the client hired the respondent to handle another legal matter
for her after the sexual relationship ended but before disciplinary charges were filed
against the respondent. Moreover, the respondent has not been disciplined previously during
his 33 years of practicing law. Given these mitigating factors, we conclude
a 30-day suspension from the practice of law is warranted. See, e.g.,
Matter of Bamberth, 737 N.E.2d 1157 (Ind. 2000) (30-day suspension where attorney engaged
in sexual relationship with client while representing her in a divorce).
It is, therefore, ordered that the respondent is hereby suspended from the practice
of law in Indiana for thirty days, effective July 23, 2001, at the
conclusion of which he shall be reinstated automatically.
The Clerk of this Court is directed to provide notice of this order
in accordance with Admis.Disc.R. 23(3)(d) and to provide the Clerk of the United
States Court of Appeals for the Seventh Circuit, the Clerk of each of
the United States District Courts in this state, and the Clerk of each
of the United States Bankruptcy Courts in this state with the last known
address of the respondent as reflected in the records of the Clerk.
Costs of this proceeding are assessed against the respondent.
Prof.Cond.R. 1.7(b) provides:
A lawyer shall not represent a client if the representation of that client
may be materially limited by the lawyers responsibilities to another
client or to a third person, or by the lawyers own interests, unless:
the lawyer reasonably believes the representation will not be
adversely affected; and
the client consents after consultation. . . .
Prof.Cond.R. 8.4(d) prohibits attorneys from engaging in conduct prejudicial to the administration of
Footnote: Although not necessary for our determination, we note that the respondent
concedes that he did not inform the client of the possible impact that
a sexual relationship could have on their professional relationship and obtain her consent
to his continued representation after such consultation.
Footnote: While the ABA
Model Rules of Professional Conduct do not explicitly prohibit
a sexual relationship between an attorney and client, we note that such relationships
have been unequivocally discouraged, as noted in ABA Ethics Opinion 92-364:
First, because of the dependence that so often characterizes the
attorney-client relationship, there is a significant possibility
that the sexual relationship will have resulted from the
exploitation of the lawyers dominant position and influence
and, thus, breached the lawyers fiduciary obligations to the
client. Second, a sexual relationship with a client may affect
the independence of the lawyers judgment. Third, the lawyers
engaging in a sexual relationship with a client may create a
prohibited conflict between the interests of the lawyer and
those of the client. Fourth, a non-professional, yet emotionally
charged, relationship between attorney and client may result in
confidences being imparted in circumstances where the
attorney-client privilege is not available, yet would have been,
absent the personal relationship.
We believe the better practice is to avoid all sexual contact with
clients during the representation.
Proposed Comment 17 to Rule 1.8 states:
The relationship between lawyer and client is a fiduciary one in which the
lawyer occupies the highest position of trust and confidence. The relationship is almost
always unequal; thus, a sexual relationship between lawyer and client can involve unfair
exploitation of the lawyer's fiduciary role, in violation of the lawyer's basic ethical
obligation not to use the trust of the client to the client's disadvantage.
In addition, such a relationship presents a significant danger that, because of the
lawyer's emotional involvement, the lawyer will be unable to represent the client without
impairment of the exercise of independent professional judgment. Moreover, a blurred line between
the professional and personal relationships may make it difficult to predict to what
extent client confidences will be protected by the attorney-client evidentiary privilege, since client
confidences are protected by privilege only when they are imparted in the context
of the client-lawyer relationship. Because of the significant danger of harm to client
interests and because the client's own emotional involvement renders it unlikely that the
client could give adequate informed consent, this Rule prohibits the lawyer from having
sexual relations with a client regardless of whether the relationship is consensual and
regardless of the absence of prejudice to the client.