## Facts

- Matthew Fortado was admitted to practice law in Ohio in 1977 and practiced in Akron.
- In 1996, Fortado received a two-year suspension for conduct adversely reflecting on fitness to practice and for failing to cooperate in a disciplinary investigation.
- In February 2011, a client, M.S., retained Fortado for representation in a civil matter.
- About six months into the representation, Fortado began an intimate sexual relationship with M.S. while still serving as her lawyer; no consensual sexual relationship existed before the attorney-client relationship.
- The initial civil matter concluded in February 2012 by settlement and dismissal.
- The intimate relationship continued for about three years after the first matter ended.
- Fortado later represented M.S. in two additional civil matters through 2014 and 2016; in one matter, M.S. discharged him.
- The Akron Bar Association filed a disciplinary complaint alleging a violation of Ohio Prof.Cond.R. 1.8(j).
- Fortado admitted the misconduct in a proposed consent-to-discipline agreement recommending a conditionally stayed one-year suspension; the Board panel rejected the agreement and held a hearing.
- After hearing stipulations, exhibits, and testimony (including character witnesses), the panel recommended a one-year suspension with six months stayed; the Board adopted that recommendation, and Fortado objected to the sanction.

## Issues

1. Whether Fortado violated Ohio Prof.Cond.R. 1.8(j) by engaging in sexual activity with a current client absent a preexisting consensual sexual relationship.
2. Whether the Board panel had discretion to reject the parties’ consent-to-discipline agreement and proceed to a hearing.
3. What sanction was appropriate considering the rule violation, Fortado’s prior discipline, mitigating evidence, comparable cases, and the parties’ jointly recommended sanction.

## Decision

- The Supreme Court of Ohio found that Fortado violated Prof.Cond.R. 1.8(j).
- The Court held that the Board panel had discretion to reject the consent-to-discipline agreement and set the matter for hearing.
- The Court sustained Fortado’s objection to the recommended sanction and modified it.
- Fortado was suspended from the practice of law for one year, fully stayed on the condition that he commit no further misconduct.
- Costs were taxed to Fortado.

## Legal Principles

- Prof.Cond.R. 1.8(j) prohibits a lawyer from soliciting or engaging in sexual activity with a client unless a consensual sexual relationship existed before the attorney-client relationship began.
- A sexual relationship with a current client, without a preexisting relationship, constitutes professional misconduct regardless of which party initiated the relationship.
- The Board of Professional Conduct is not required to accept a proposed consent-to-discipline agreement; a panel may reject it and require a hearing.
- Sanctions in attorney discipline consider aggravating and mitigating factors, including prior discipline, cooperation, acceptance of responsibility, and character evidence.
- A stayed suspension may be imposed when the court determines that public protection and the interests of the profession are adequately served by conditional leniency.

## Conclusion

The Ohio Supreme Court disciplined Fortado for violating Prof.Cond.R. 1.8(j) by entering a sexual relationship with a client during representation, upheld the panel’s discretion to reject a consent agreement, and imposed a one-year suspension fully stayed on the condition of no further misconduct.


Akron Bar Ass’n v. Fortado, 159 Ohio St. 3d 487 (2020)