Sanders v. Rosen

• Decision Date: 29 June 1993
• Citation: 605 N.Y.S.2d 805,159 Misc.2d 563
• Parties: Jill SANDERS, Plaintiff, v. Richard ROSEN, Defendant.
• Court: New York Supreme Court

Page 805

605 N.Y.S.2d 805

159 Misc.2d 563

Jill SANDERS, Plaintiff, v. Richard ROSEN, Defendant.

Supreme Court, New York County IAS Part 4.

June 29, 1993.

Bondy & Schloss, New York City, for plaintiff.

Steven L. Levitt, P.C., Williston Park, for defendant.

EDWARD J. GREENFIELD, Justice:

Can seduction be the basis for a "pattern of racketeering" on which a RICO action for treble damages can be bottomed? Can an attorney, who is denominated "an authority figure", be guilty of rape of a client by "transference", and be held liable for battery? Does a claim of malpractice against an attorney exist giving rise to damages for "callously terminating his romantic and sexual relationship with plaintiff", causing his ex-lover's depression, mental anguish, and substance abuse? These questions, among others, are raised by the complaint of plaintiff, a woman scorned, whose fury is exemplified in the 13 causes of action she asserts against her ex-attorney and lover, seeking monetary damages and equitable relief. Defendant, charging her action is solely an attempt to extort a settlement, moves for dismissal of the complaint.

The Complaint

The complaint alleges that defendant, as an attorney, represented plaintiff in her divorce case in 1977. Some time after the divorce case was concluded, plaintiff alleges that defendant, aware of her financial circumstances, embarked on a scheme to exploit her vulnerable emotional state so as to enhance his own standard of living, and that as part of that plan, he began an intimate relationship with her in 1979. Allegedly he told her he wanted to marry her. Plaintiff alleges that because of her "transference response" to defendant, i.e. reacting emotionally to a powerful, benevolent and authoritative figure who had been her attorney, she was unable to resist defendant's maneuvers.

Plaintiff then moved into defendant's apartment on the East Side of Manhattan and in February, 1980 they jointly purchased a house in the Hamptons, with plaintiff giving up her own apartment, but paying half the expenses for defendant's apartment. He prepared a new will for her, which named him as executor and a beneficiary. In September, 1981, defendant terminated the relationship and demanded plaintiff move out of his apartment. Nevertheless, they have continued to share the house in the Hamptons by splitting expenses and using it on alternate weekends.

* * *

Although the relationship which is the underlying basis of the complaint was terminated in September, 1981, it was not until 1990, nine years later, that plaintiff commenced this action.

Lawyers as Lovers

While the complaint sets forth 13 separate causes of action, the allegations thereunder and the relief sought overlap to a considerable degree. There are claims of fraud, malpractice, battery and rape, unjust enrichment, constructive trust and infliction of emotional distress, but there is a common thread running through all of these causes of action. Plaintiff alleges that because defendant was an attorney and had previously represented her in a divorce case, when they began an affair thereafter he somehow breached his obligations to her in the attorney-client relationship, taking advantage of his superior legal knowledge and failing to make essential disclosures to protect her rights.

The various cases cited by plaintiff to support the proposition that because defendant was an attorney before he became her lover, he had breached his professional and ethical obligations, will not withstand legal scrutiny. While the complaint, in its 92 paragraphs of allegations, leaves many of the facts and circumstances far from clear, plaintiff has submitted additional affidavits to flesh out the facts and defendant has also interposed factual affidavits together with contemporaneous documents. CPLR 3211(c) permits either party to submit evidence on the motion, and the court may consider unpleaded facts set forth in the papers to determine whether on a motion to dismiss there should be permission to replead.

The facts thus established clearly show that defendant had represented plaintiff in her divorce action in 1977. It was not until well after that representation had terminated, and after the divorce had been finalized, that plaintiff and defendant began a romantic and intimate relationship in August of 1979. Plaintiff moved into defendant's apartment in September of 1979 and in October, they agreed to purchase a summer home which they would share in the Village of Quogue in Southampton Township. At the time, the parties were living together in New York City and contemplating marriage. Plaintiff now alleges that in reality defendant had "embarked upon a scheme and course of conduct designed to exploit plaintiff's vulnerable emotional state", and that it was the plan of defendant attorney "to use plaintiff's feelings of emotional frailty and love for him and her substantial financial resources" to gain for himself sexual and economic benefits.

Plaintiff charges that defendant violated Code of Professional Responsibility and Disciplinary Rule 1-102(A)(4) (22 NYCRR 1200.3[4] by engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; that he violated Disciplinary Rule 5-104(A) (22 NYCRR 1200.23[A] by accepting employment from plaintiff in conflict with his own personal interests and by failing to advise plaintiff that she should secure disinterested advice from someone independent. She charges further that he violated Disciplinary Rule 5-104(A) by entering into a business transaction with her as a client where they had differing interests.

As authority, plaintiff cites the disciplinary case of Matter of Bowen, 150 A.D.2d 905, 542 N.Y.S.2d 45 in which a divorce attorney was suspended for two years for having made improper sexual advances to eight women who had consulted him with respect to matrimonial problems. He was also charged with counseling clients to disregard court orders and with furnishing false documents to the court. Such an ongoing course of conduct by an attorney, vis-a-vis numbers of clients of the opposite sex, has no applicability here. Certainly, attorneys are to be held to high ethical and moral standards. There is nothing, however, which would bar an attorney from pursuing a romantic relationship with someone he or she met at an earlier time while acting as counsel. Although some may doubt attorneys are human beings, and they may seek and pursue relationships with persons they have met on vacation, at social affairs, or even in the office. The conduct which may be proscribed is entering into a sexual relationship with a current client, where emotional involvement may cloud objective professional judgment, and commencing a sexual relationship with a client he represents who is wholly dependent on him and in a very vulnerable state. That could then be considered an abuse of his position. Once an attorney-client relationship is ended, however, an attorney is certainly free to occupy the position of friend or lover.

It is not "the sexual relationship per se which constitute[s] a breach of professional responsibility but rather the attorney's attempt to exploit the professional relationship to gain unsolicited sexual favors." Edwards v. Edwards, 165 A.D.2d 362, 367, 567 N.Y.S.2d 645. As the Appellate Division, First Department, in setting aside a finding that an attorney had breached his professional responsibility by allegedly having a sexual relationship with a client while representing her in a divorce case, there noted, "at the present time, no jurisdiction in the United States has adopted an ethical code [of professional responsibility] expressly proscribing sexual involvement between a lawyer and a client, whether the representation involves a matrimonial matter or otherwise." Id. p. 368, 567 N.Y.S.2d 645.

A lawyer, like any other person, may in his private life be a cad or a king, an inconstant lover or a rock of stability, gracious or a grouch, but in his professional life he may not overstep the bounds and abuse his position of trust as counsel, confidante, champion and fiduciary.

Cases cited by plaintiffs such as Rudner v. Board of Regents, 105 A.D.2d 555, 481 N.Y.S.2d 502; Roy v. Hartogs, 85 Misc.2d 891, 381 N.Y.S.2d 587; Public Service Mutual Ins. Co. v. Goldfarb, 53 N.Y.2d 392, 442 N.Y.S.2d 422, 425 N.E.2d 810; and Noto v. St. Vincent's Hospital, 142 Misc.2d 292, 537 N.Y.S.2d 446 deal with the impropriety of a sexual relationship between a psychiatrist or other medical person with a patient undergoing therapy. That is a departure from accepted medical standards. Liability for medical malpractice cannot be equated with what occurred here.

When plaintiff and defendant became lovers, it was natural that they would want to share an apartment and that they would want to share a summer house. It was also understandable, since defendant was an attorney, that he would handle the negotiations to purchase the house and to arrange for a mortgage loan. That was not a professional engagement, and of course no fee was charged. "As a matter of human experience, personal services would frequently be rendered [between] two people * * * because they value each other's company or because they find it a convenient or rewarding thing to do." Morone v. Morone, 50 N.Y.2d 481, 488, 429 N.Y.S.2d 592, 413 N.E.2d 1154. "Personal services between unmarried persons living together or unmarried persons whose actions flow out of mutual friendship and reciprocal regard ... are ordinarily done by one person for another as a matter of regard and affection ..." Trimmer v. Van Bomel, 107 Misc.2d 201, 206, 434 N.Y.S.2d 82.

The parties here were joined as a couple in a partnership of sorts and in a joint venture for the purchase of real estate. Defendant was supplying his legal expertise while plaintiff was pledging her assets as collateral for a bank loan. Both parties were to share the mortgage payments and operating expenses. P...