While our last posts have discussed the law and warmth, love, compassion, niceness and caring, there remains the unspoken kind of ardor. No, not that one. The one between lawyers and their clients.
One of the most all-time popular posts on this blog continues to be “Practical Practice Tips: Lawyers Lusting After Clients and Their Spouses.” Its popularity speaks either to the dedication of our readership to continuously (re)educate themselves on the specific prohibitions that may arise in knotty situations or to some recurring slippage that fuels late night internet trolling for any possible solution. And then there’s probably some highly amused spectators, as well.
Regardless of the reasons for your interest, to bring us up to date two partners at McKenna Long & Aldridge have written a nice recap of recent “gotcha” cases against lawyers who succumbed to affairs with a client or the client’s spouse–“a growing problem that threatens not only the participating parties but also their colleagues and law firm partners,” concluding with the cautionary title that “Sex With Client is Flirting With Disaster.”
At least 29 states have adopted some version of the ABA Model Rule 1.8(j) that “a lawyer shall not have sexual relations with a client unless a consensual relationship existed between them when the client-lawyer relationship commenced.” The theory is that a spouse, for example, should be able to represent his/her partner, and evidently that the pre-existing relationship does not reduce the effectiveness of counsel. A number of other states contend that they incorporate the sense of that rule into other ethics provisions, such as improper conflicts of interests, violations of confidences and secrets, and generic unprofessional conduct prohibitions.
Violation is usually punished by professional sanctions or disbarment, and enforcement seems to be growing, with penalties being meted out in many cases with little consideration for exculpatory facts, such as the brevity of the liaison. Although both his representation of the client and the affair with her were overlapping for only two days, a Minnesota lawyer was barred from practicing law for 15 months. Pennsylvania recently enforced for the first time its prohibition against sex with clients with a one-year suspension and Ohio suspended a lawyer for one year for simply proposing the arrangement.
Mississippi was mentioned in our earlier post as a state whose rules of ethics were more forgiving of adulterous lawyers, but that doesn’t mean that there isn’t still a price to pay. A judge earlier this year awarded $1.5 million to an unhappy client/husband in a lawsuit against a Mississippi lawyer for alienation of affection, breach of contract and intentional infliction of emotional distress. All in spite of the tortious couple’s prompt marriage and childbearing–arguably ample evidence that it was love and not just lust in the offing.
And so it goes. The temptation is obviously there. The rules are pretty clear. The consequences quite grim. And yet these posts remain unusually popular…