Motion to suppress 

click to enlarge SUIT TARGET: David Rees of Jonesboro.
  • SUIT TARGET: David Rees of Jonesboro.
By David Koon If you’re opening your phone book to the section marked “Attorneys,” it’s likely you’re dealing with serious issues that may have left you emotionally vulnerable and worried about expense. Some lawyers may take advantage of that upset. Make passes, lewd comments. Sexually harass. Initiate sex. Doctors who behave that way with their patients are in violation of their code of ethics. Lawyers are not — at least not in Arkansas, where the bar’s ethics rules are silent on sexual relations with clients. When misconduct occurs, clients can’t get help. Claims — mountains or molehills — are often met with an official non-response from the Supreme Court’s Office of Professional Conduct. Worse, thanks to the secrecy surrounding complaints filed to the office, it’s easy for a wronged client to imagine the worst: That a shadowy cabal of Good Ol’ Boys holds the keys to attorney discipline. The position of the Office of Professional Conduct is that because there’s no rule spelling out that attorneys can’t bed clients, no discipline can be meted out. That means clients who want satisfaction have to sue, often with very little proof of their allegations. A forthcoming change in the Arkansas Model Rules of Professional Conduct — the lawyer’s ethical Bible — could help put the brakes on attorney-client sex, by giving the Office of Professional Conduct more ammunition against those who sexually prey on their clients. For now, however, if your lawyer’s come-ons and innuendos don’t rise to the level of a crime, tough luck. In late 1997, Jonesboro resident Sandra Smith was looking for a lawyer. A past user of the injectable birth control drug Depo-Provera, Smith says she was among millions of American women in the late 1990s who were harmed by the drug. Some women who took Depo-Provera began to complain after it went on the U.S. market in 1993 of heavy bleeding, depression, long-term infertility and other health problems. By 1997 many law firms specializing in personal injury claims were using television ads to troll for Depo-Provera users, promising big cash settlements. That year, Smith claims in a lawsuit filed in Craighead County, she heard that Jonesboro lawyer David Rees was running advertisements offering representation for those injured by Depo-Provera. (Through his attorney, Arlon Woodruff, Rees denies ever representing or consulting with Smith on any case. Woodruff says that the Rees Law Firm has no files on Sandra Smith and that the firm never advertised for or represented clients in Depo-Provera lawsuits. “She has never been in his office,” Woodruff said. “He has never represented her. He has never consulted with her, nor she him. There is just no connection there at all.”) David Rees is one of Jonesboro’s most visible lawyers. A native of Jonesboro and a graduate of the South Texas College of Law in Houston, Rees’ self-written lawyer profile from the Rees Law Firm website says he’s won settlements and judgments totaling more than $50 million since opening his own firm in 1983. Billboards featuring Rees and other attorneys from his firm tower over many of the major arteries into and out of Jonesboro, the word “INJURED?” blazing above the number for his office. Smith is not the only woman to have made such a claim against Rees. Hers is one of three separate lawsuits pending in Craighead County over alleged unwanted advances. Originally sealed at the request of Rees and his attorneys, but opened by Judge John Lineberger on a petition filed by the Arkansas Times, each lawsuit was filed jointly by West Memphis attorney Kent Rubens and Little Rock attorney Timothy O. Dudley. The suits allege that between 1997 and 2004, Rees demanded sexual favors from at least four female clients, telling them he would stop working as hard on their cases if they didn’t give in. The plaintiffs in the cases are seeking punitive and compensatory damages. (Rubens said he has a policy of not commenting on pending litigation.) In a lawsuit filed in April 2004, Kara Matthews and Jessie Mize claim they contacted Rees earlier that year about representing them in an unspecified personal injury action. Mize and Matthews alleged that on at least two trips to Rees’ office, Rees partially disrobed and asked for what the lawsuit terms a “sensual massage.” The women said in their lawsuit that during the time he represented them, Rees made repeated phone calls to their home, “requesting sexual favors in exchange for his continued representation of them in their cases.” Mize and Matthews said they fired Rees as their lawyer Feb. 23 but, according to the lawsuit, he continued to call their home to say that if they would “succumb to his requests … he would make sure their cases were quickly and satisfactorily resolved.” The case is similar to one filed by Courtney Mitchell and her mother, Teresa Markin. In 2002, Mitchell and Markin said, they contacted Rees to represent them in a wrongful death lawsuit. Tyson Massengill, who was Mitchell’s brother and Markin’s son, had been killed in a vehicle accident. Shortly after depositions began in May 2003, Markin and Mitchell claim, Rees became “personally, sexually interested” in Mitchell. Over the next few months, the lawsuit alleges, Rees began making “sexually suggestive” telephone calls to Mitchell, ignoring her demands that he stop. (The lawsuit claims that Rees called Markin in “June or July of 2003” and — thinking her daughter had answered the phone — “began making sexual comments, and again asked what color panties she was wearing.” This is the lawsuit’s only allegation of improper sexual contact between Markin and Rees.) Mitchell and Markin’s complaint also alleges that in July 2003, while Mitchell was alone with Rees in his office, Rees partially undressed, then exposed his penis, ran his hand up Mitchell’s blouse, and demanded that she perform oral sex on him. The lawsuit claims that when she tried to escape, Rees stopped her at the door and tried to kiss and fondle her again, grabbing her hand and forcing her to touch his penis. According to the lawsuit, “Rees made it clear to [Mitchell and Markin] that without his skills and abilities, they would not recover on their claims and that in order to get him to work harder on their case they should submit to his unwanted sexual attacks.” Sandra Smith’s lawsuit was the last case of the three to be filed. In her complaint, Smith said Rees began demanding sexual favors in 1998, a year after she said he filed a Depo-Provera claim for her. Believing, her lawsuit says, that a sexual relationship “was required of her in order for Rees to work on her case which was allegedly being prosecuted on her behalf by [Rees],” Smith says she began having sex with him “on an almost weekly basis.” The arrangement lasted eight months, Smith claims in her lawsuit, with Rees making it clear that “her having sex with him was a quid pro quo for his continued pursuit of her claim.” The lawsuit charges that when she tried to break off the relationship in early 2000, “Rees threatened [Smith] that he would not do anything for her case if she quit having sex with him.” Smith claimed the affair resumed at that point, and continued off and on until May 2004, three months before she sued Rees. According to the lawsuit, Smith has been told by Rees that her Depo-Provera claim is still pending, though Rees denies she was his client. In court documents, Rees has denied all the allegations of sexual impropriety in the three lawsuits, saying those allegations are “immaterial,” “impertinent” and “scandalous,” and asking that they be stricken. In January 2005, Rees filed a counterclaim against Mitchell and Markin, charging that they have “entered into an elaborately engineered scheme of extortion and blackmail” against him. The allegations of sexual harassment are false, the counterclaim says, meant to break the contract Markin and Mitchell signed with the Rees Law Firm, and designed to “inflict extreme embarrassment, emotional distress and financial loss” on Rees. Rees is seeking his expenses, 40 percent of whatever Markin and Mitchell eventually win in Massengill’s death, and compensatory and punitive damages. Asked why women would make up such claims about Rees, his attorney, Woodruff, called the Sandra Smith lawsuit a “me-too” case brought about by publicity surrounding the filing of the other lawsuits. As for the suits as a whole, Woodruff points out that all three were filed by Kent Rubens, who Woodruff says has sued Rees in the past. “If you look at the pattern of who is involved,” Woodruff said, “then you start to wonder: What is going on here? Why is the same lawyer suing Mr. Rees over these kinds of cases that are really a he-said/she-said case?” Whatever the court eventually rules when those cases go to trial later this year, it’s sure to be an emotionally grueling process for all concerned. North Little Rock lawyer Bonnie Robertson and former Little Rock Air Force Base Staff Sgt. Dawn Rentfrow know a little about the difficulty of pursuing sexually related complaints. In 2002, after a grievance filed with the Office of Professional Conduct was dismissed, Rentfrow came to Robertson with claims that she had been sexually harassed by Little Rock attorney Greg Bryant after hiring him to represent her in a 2001 divorce. (Repeated attempts to reach Rentfrow brought only a message through a friend that she’d rather allow Robertson to comment for her.) In the lawsuit, Rentfrow and Robertson eventually filed, Rentfrow claimed that Bryant made “repeated and lurid, obscene statements,” asking her questions about her sexual experiences and detailing “sexual acts he wanted to engage in with her” — claims that Bryant strenuously denies, both in court filings and a recent conversation with the Arkansas Times. Rentfrow also said Bryant pressured her to hand over nude photos taken of her by her husband. Bryant said he did receive the photos from Rentfrow, though he claims it was at Rentfrow’s insistence, given that she was concerned her husband might use them against her in court. Rentfrow said that Bryant’s ongoing harassment led her to seek inpatient treatment for depression. Robertson thought she had a strong case, especially after locating three other women who said they had been the target of Bryant’s harassment after retaining his services. Robertson said some courts have ruled that because of a lawyer’s position of power over a client, behavior considered merely boorish for anyone else is “outrageous” if committed by an attorney — a distinction crucial in finding what the law calls a “tort of outrage.” The Pulaski Circuit Court didn’t see it that way, however. In May 2004, after Judge Jay Moody ruled the testimony of the three other women inadmissible because the rules of evidence don’t allow testimony about allegations of previous bad behavior, Moody dismissed the case on a directed verdict — meaning the jury didn’t get a chance to consider it. Robertson and Rentfrow appealed, but dropped the appeal after an undisclosed settlement agreement was reached. Bonnie Robertson puts it bluntly: The Office of Professional Conduct and the courts failed both her client and the women called to testify in the Rentfrow lawsuit. She still has strong feelings in general about attorneys who would make sexually suggestive comments to clients. “This is no different than a doctor having a patient disrobe and then copping an extra feel,” Robertson said. “You can quote me on that. It’s no different. You have your client emotionally open to you, and to reach out and cop that extra feel through your conversations and your statements is absolutely unacceptable to me.” Erica Roberts was one of the women called to testify in Rentfrow’s lawsuit. In April 2003, Roberts claims, during negotiations to get her son released from the custody of the state Department of Human Services (charges of child abuse made against her were found to be baseless by DHS investigators), Bryant made sexual comments to her while out of earshot of other attorneys and DHS officials. At one point, Roberts claims, Bryant asked to spank her with a retractable tape measure he carried on his key ring. In another instance, she said he asked her why she didn’t give him “blowjobs,” as he had heard clients did for another lawyer. “Of course, I was just shocked,” Roberts said. “This is my attorney, I’d just given him $2,500. I had seen him several times with my husband, he’d been nothing but respectable, and then all of a sudden out of the blue. … I’m shocked. I’ve got my son I’m worried about.” After her husband, Justin Roberts, made at least two angry phone calls to Bryant’s home that night — with a tape recorder rolling — Erica Roberts said the hearing the next day went smoothly, with no more suggestive comments. A month later, the couple filed a written grievance with the Office of Professional Conduct. To back up their claims, Erica and Justin Roberts gave the office’s investigator a taped conversation (which they played for the Times) in which Bryant can be heard admitting having made a comment about a “blowjob” and apologizing for it. More than a year after the complaint was filed, the Office of Professional Conduct dismissed the claim without comment. The Robertses then came to the Arkansas Times. “As soon as I was out of the room, he talks to my wife like this,” Justin Roberts said. “And you know what kind of trouble he gets in for it? Nothing. I’ve got a problem with Greg Bryant, but I’ve also got a problem with the ethics committee.” Greg Bryant, for his part, told the Times that if his former clients took offense at anything he said, it was — at worst — “trash talk” misconstrued. Even the women who sought to testify against him in the Rentfrow lawsuit said his alleged offenses were purely verbal — none claimed he ever touched them in a sexually suggestive manner. Bryant made the observation that if the Committee on Professional Conduct starts disbarring lawyers for dirty language, the halls of justice are going to get awfully lonely. Agree with him or not, therein lies a point: If an attorney’s trespasses against his client are strictly verbal, where does locker room boorishness stop, and sexual harassment begin? Hair-splitting of this sort is something those who work at the Office of Professional Conduct know inside and out. They’re employed, after all, in the place where the worst impulses of the Arkansas legal community come home to roost. Though no sexual harassment complaint against an attorney has made it to the level of a public sanction by the Supreme Court Committee on Professional Conduct, executive director Stark Ligon said that’s not because his office isn’t bringing such cases to the committee. (Grievances are not made public unless they result in a sanction.) In the absence of a disciplinary rule against such conduct, Ligon often sounds as frustrated as the clients who come to him to complain. The office may refer to the Supreme Court committee its recommendations to sanction or even disbar an attorney — if the grievance meets the criteria of the Model Rules of Professional Conduct. A thick, straightforward code patterned on the rules of the American Bar Association, the Model Rules are supposed to be an attorney’s reference in nearly all ethical matters. But as Erica Roberts and Dawn Rentfrow learned, if their complaints are believed, “nearly” is the key word. Ligon, the executive director of the office for the past four years, and his small staff serve as a kind of prosecuting attorney’s office for lawyers who run afoul of the Arkansas Model Rules of Professional Conduct. On average, the office receives about 1,000 written complaints by clients against their attorneys a year. In 2003, 257 survived an initial investigation and Ligon took 200 to the Supreme Court committee, which has the power to discipline attorneys with warnings, reprimands and suspensions, or by initiating disbarment proceedings. Of those 200 formal complaints, 185 resulted in some form of discipline. The committee started disbarment proceedings against three, and another 14 attorneys surrendered their law licenses. Ligon said he takes a “very dim” view of lawyers having sex with their clients, not only because of the moral issues involved, but because such a relationship can cloud an attorney’s judgment. Ligon said that especially in cases involving female clients in divorce and custody disputes, an attorney is often working with what the law profession terms “the vulnerable client.” He offered the hypothetical example of a woman without much money scraping up a retainer to hire an attorney for a divorce or custody case — an attorney who then makes inappropriate sexual comments or demands. “At that point, what are her choices?” Ligon said. “Bad and worse. That’s when you get the truly vulnerable client. Some might say ‘Well, there are other options.’ Well, what are the options? Do you stand up in court and tell the judge you want to get rid of your lawyer and spill it all out there?” Theoretically she could do that, but how could she pay another lawyer, Ligon asked. Sexual complaints against Arkansas lawyers aren’t common (Ligon said no more than 10 per year on average), but that doesn’t mean that Ligon’s office sends such claims straight to the circular file. Ligon said his office has taken sexual-misconduct cases to the Supreme Court committee during his four years there, though he wouldn’t say how many. None resulted in any disciplinary actions. “The fact that we do not have readily available public sanctions based on sexual misconduct by an attorney might be some indication that our efforts to prosecute attorneys for misconduct in that area have not been as fruitful as we would hope,” Ligon said. He said his office often takes what he called “a secondary approach” to bringing sexual-misconduct complaints. It’s a roundabout route that uses parts of the Model Rules that address the symptoms caused by sexual contact between attorneys and clients, if not the contact itself — mostly those rules related to conflict of interest. Such regulatory gymnastics may soon become a thing of the past, however, thanks to the new batch of rules slated for inclusion in the Arkansas Model Rules. An Arkansas Bar Association committee based the proposed rules on changes made by the American Bar Association in 2002. The new rules, currently under consideration by the Arkansas Supreme Court, could be approved as soon as this spring, Ligon said. Fewer than 10 states have a specific prohibition against attorney-client sex; Arkansas’s change would mark the first major overhaul of the Arkansas Model Rules since 1986. The change most relevant to sexual-misconduct allegations would be proposed model rule 1.8j, which would forbid lawyers from engaging in “sexual relationships with a client unless the sexual relationship predates the formation of the client-lawyer relationship.” University of Arkansas Law Professor Howard Brill was a member of the state Bar Association committee that developed the proposed changes. He said he makes a point of educating his students about the problems that can arise when attorneys get amorous, in a lecture he calls “Lawyers in Love.” Brill said that even in cases where both the attorney and the client want a sexual relationship, a rule against attorney-client sex is appropriate, because once an attorney-client relationship is formed, “consensual” usually doesn’t hold the same meaning for either participant. “I think there are inherent risks when you have this type of sexual relationship in the context of an attorney-client relationship,” Brill said. “One person is making decisions for the other, one person might feel more vulnerable, one person might be more desperate, one person is more financially at risk. There are too many other complicating factors, and I think all those dangers come into play.” Brill said he thinks the proposed rule against attorney-client sex might be dipping into some difficult territory — for example, does such a rule mean that a lawyer litigating for a company can’t become romantically involved with someone who works in that company’s mail room? Probably not, Brill said, but the rule does lend itself to such pondering. Attorney Bettina Brownstein, however, suggested that the proposed change might not go far enough. A lawyer for the firm of Wright, Lindsey and Jennings, Brownstein was also on the committee that came up with the proposed rule changes. Brownstein questioned the fact that the proposed rule does not absolutely prohibit attorney-client sex. As Brownstein pointed out, if the problem is that a lawyer’s judgment might be clouded by a sexual relationship, wouldn’t that be an even larger issue for those whose relationships began before a retainer changed hands? “Doctors are not supposed to treat their own family members,” Brownstein said. “You’re never supposed to operate on your own family members. You wouldn’t be able to do as good a job. Emotionally you’re involved, especially in surgery. I think the same thing should probably be in the legal profession.” But as an attorney who has defended clients against charges of sexual harassment — and who has defended lawyers charged before the Committee on Professional Conduct — Brownstein’s against any changes to the process by which the Office of Professional Conduct investigates claims of sexual misconduct. If the system doesn’t act to a client’s satisfaction, Brownstein pointed out, the client can still file a lawsuit or complain to the press. “I know a lot of people don’t hesitate to complain about lawyers,” Brownstein said. “This is a society [in which] nobody hesitates to complain or bring charges. Even people who are victimized, they find a way to complain. I don’t worry about before [a grievance is filed]. I worry more about what happens after they bring a complaint.” Even with the prohibition in place, semantics — specifically the use of the term “sexual relationship” — could still present a problem. If the case of Bill Clinton and Monica Lewinsky showed us anything, it’s that “sexual relationship” can be hard to define, especially when it ends up in a court of law. “I guess ‘sexual relations’ could be construed kind of narrowly,” Brownstein said. “But I’m trying to think how you could broaden it. ‘Romantic relationship’ sounds pretty nebulous, right?” Though she’s not sure how to go about re-phrasing the proposed rule, Brownstein said that other changes to the model rules — including a proposed change to the preamble that states a lawyer should “avoid even the appearance of impropriety” — should do the trick. Stark Ligon said that many, unfortunately, of the claims of sexual misconduct he’s handled would be actionable under the proposed rule. The bad news for clients like Erica Roberts, however, is that the Model Rules don’t prohibit attorneys from being boorish, rude or vulgar to their clients — a circumstance that won’t change if and when the new Model Rules go into effect. “This rule talks in terms of a ‘sexual relationship,’ ” Ligon said. But sexually suggestive language could arguably be “on the edge of a ‘sexual relationship,’ ” and not actionable. “Just like there’s not currently a rule prohibiting sexual relations with a client, there is not a rule that specifically subjects a lawyer to professional discipline for being profane, nasty, vulgar, whatever you want to call it,” Ligon said. In the end, Ligon said, it will be up to the Committee on Professional Conduct to decide just how far the edges of the new Model Rule will stretch. Erica Roberts, for one, is a woman who hopes the rule will be interpreted broadly. “If I go to the gynecologist, not only is there a doctor, there’s also another person [in the room] making sure nothing funny happens,” she said. “You go to an attorney, who is there to say that there is nothing funny happening? Not just that, but who is going to hold that attorney accountable for harassment or unethical behavior?”


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