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Attorney-client sex: too close for comfort?

An attorney sits in his private office behind his impressive desk with all his certificates and diplomas adorning the walls. He wears a beautifully tailored suit and highly polished wingtips.

His client needs his help. She is vulnerable. He is respectable. He is in a position of power. She is not. In this case, the two begin a relationship that evolves into an exploitive situation in which the man in power manages to have sex with the vulnerable woman.

In an attorney-client relationship, the attorney holds the upper hand. He or she is in a position of dominance, perceived power, and ultimate influence. A client trusts that the attorney will act in his or her best interest.

As commentator Melissa Eckhause noted: "Once a lawyer manifests personal feelings for the client, a conflict emerges that may skew the attorney's fiduciary duties. The attorney is no longer detached and objective. Rather, the lawyer has assumed a personal interest that may cause the attorney to set the objectives of the case according to his own needs."(1)

Some may argue that a sexual relationship between attorney and client can be consensual. But because the client is on unequal footing with the attorney, a client can never truly consent, and any sexual relations with a client during representation is a violation of the ethical and professional canons governing attorney conduct. As a confidant, mentor, and counselor, the attorney who succumbs to a sexual encounter during representation risks financial, professional, and personal destruction.

Much debate is centered on whether attorney-client sexual relations should be a per se violation of the attorney's ethical and professional responsibility. Disparities currently exist in the way state bar associations have addressed this issue: Eleven have enacted express rules,(2) eighteen have issued disciplinary or jurisprudential decisions,(3) three have issued ethics opinions,(4) and eight are considering or have rejected an express rule or ethics opinion.(5)

Several attorney organizations have passed codes and opinions condemning or discouraging attorney-client sexual conduct.(6) There is an abundance of scholarly articles addressing the issue.(7)

This article addresses disciplinary actions and malpractice liability when an attorney begins a sexual relationship that is arguably consensual during representation. The article will not discuss nonconsensual sex and the possible criminal violations associated with such a relationship.

The state of the states

Iowa, Minnesota, North Carolina, Oregon, and Wisconsin have adopted nearly complete bans on sexual relationships between attorneys and clients. Although each state's regulation has unique characteristics, all uniformly create a bright-line rule against these relationships. Minnesota, North Carolina, and Wisconsin have banned the relationships in their versions of Rule 1.8--Conflict of Interest: Prohibited Transaction.(8) Minnesota and Wisconsin provide an exception for organizational clients and for consensual relationships that existed before the attorney-client representation began.(9)

The Iowa rule, although substantially the same as the others, differs in one respect. It provides protection for the client if the sexual relationship began before representation.(10) The rule requires an attorney to scrutinize his or her conduct with a client when a sexual relationship predates the representation and to withdraw if any detriment to the client or the client's case results from the sexual relationship.

California, Florida, New York, Utah, and West Virginia have adopted less absolute rules regulating attorney-client sexual relations.(11) Each state's rule is different. However, none of the states' rules provides sufficient guidance to an attorney as to what boundaries should exist in an attorney-client sexual relationship.

California was the first state to enact a rule regarding attorney-client sexual relations. It specifically addresses coercion tactics and the offer of sex in exchange for representation but does not prohibit sexual relationships if they do not create representation problems.

The Florida rule is an amendment to its misconduct provision. It prohibits attorney-client sex only when it exploits the lawyer-client relationship. There is no guidance as to what "exploit" means, however, rendering the statute vague as to boundaries.

New York's rule is the narrowest of all those reviewed here. It merely places a ban on attorney-client sex in domestic matters. The rule's authors noted a concern for client vulnerability, conflict of interest, and breach of fiduciary duty.(12)

However, one may argue that this concern exists in any case, not just domestic ones. Along those lines, West Virginia's rule prohibits sexual relations unless the relationship predates representation. Otherwise, its rule bars sexual relations across the board.

The Utah rule is similar to California's. It goes one step further, however, creating a rebuttable presumption that an attorney-client sexual relationship is exploitive unless the parties are spouses or the relationship predates representation.

Even if a state has not enacted a per se rule addressing attorney-client sexual relations, courts have enforced disciplinary decisions based on existing rules of professional conduct. The rules most frequently relied on are Model Rules of Professional Conduct Rules 1.7 and 1.8--Conflict of Interest; Rule 1.14--Client Under a Disability; Rule 3.4--Fairness to Opposing Party and Counsel; Rule 3.7--Lawyer as a Witness; and Rule 8.4--Misconduct.(13)

Most of the jurisdictions reviewed for this article have applied the conflict-of-interest rule to discipline an attorney for engaging in sexual relations with a client.(14) No matter what rule may be invoked, it is important to recognize that courts have disciplined attorneys for sexual misconduct with their clients based on existing rules of professional conduct.

In terms of ethics opinions addressing misconduct, the American Bar Association issued Formal Opinion No. 92-364 in 1992, which does not prohibit attorney-client sex per se but clearly identifies the risks associated with this conduct. The state bars of Alaska, Maryland, and Pennsylvania have published ethics opinions prohibiting attorney-client sexual relations either completely or with limitations.(15)

Civil liability

There are few reported cases involving civil actions against attorneys for sexual misconduct with clients. It is difficult to make general observations from such a small case sampling. However, there are emerging patterns.

Most cases are domestic cases where the client has an impaired capacity for one reason or another, making these individuals particularly susceptible to improper conduct by their attorneys. Most of these clients base their claims on negligence, civil battery, deceit, and/or intentional infliction of emotional distress.(16) On the horizon are malpractice claims based on breach of fiduciary duties owed by the attorney to the client and violations of ethical rules.(17)

In Suppressed v. Suppressed,(18) an Illinois state court addressed whether a sexual relationship with a client was a breach of fiduciary duty. Finding no such duty inherent in the attorney-client relationship, the court said a higher duty like this applied only to the attorney's duty to provide competent representation.

In other words, no fiduciary duty applied unless the attorney made professional services contingent on the sexual involvement and/or the legal representation affected by the involvement.(19)

The court reasoned that allowing this claim "would be tantamount to allowing a claim for seduction, alienation of affections, or criminal conversation to proceed under less strict standards than required by statute for actions of this type, merely by virtue of the fact that the parties involved happened to have met in the context of a legal relationship."(20)

Recently, the Rhode Island Supreme Court found a client could recover under a malpractice theory for an attorney's sexual misconduct, although the facts did not support a finding in that case. In Vallinoto v. DiSandro, a client sued her attorney for, among other claims, negligence-based legal malpractice because she felt compelled to comply with his sexual demands. She feared he would terminate his representation and that she would not be able to engage another competent attorney.(21)

Finding no evidence that DiSandro's legal services were contingent on ongoing sexual relations with his client and that his representation was excellent, the court concluded that his legal services met the required standards.(22) The absence of any damages mandated a directed verdict for DiSandro on the negligence-based legal malpractice claim.(23)

Of interest in Vallinoto is Judge Robert Flanders's dissent. The judge said that DiSandro committed legal malpractice by breaching the fiduciary duties owed to his client. Flanders said the client did not assert "just a `negligence-based legal malpractice claim' limited solely to the breach of an attorney's duty to perform legal services competently, but it was also a claim based on the conflict of interest defendant created with his client when he entered into a sexual relationship with her."(24) Flanders disagreed with the directed verdict, finding enough issues of fact existed to submit the legal malpractice claim to the jury.
 An attorney's foremost obligation to the client must be loyalty and
 trust--not the attorney's personal sexual gratification at the client's
 expense. Thus, a client who is damaged ... by the attorney's breach of his
 or her fiduciary duties through sexual exploitation of the client should be
 able to recover for legal malpractice regardless of whether the attorney's
 legal efforts were performed well and successfully.(25)


In Schwarz v. Frost, a client brought suit against her attorney alleging negligent infliction of emotional distress. She contended that because of their sexual affair, the attorney breached his fiduciary duty, which resulted in a lower uninsured motorist award.(26)

The court found the breach of fiduciary duty claim time barred. As for the negligent infliction of emotional distress claim, the court found the client failed to state a claim because attorneys do not have a fiduciary duty to protect their clients from psychological harm.

The court reasoned that "the parties here chose to enter into a consensual extramarital affair, and it turned out badly. Such behavior may have been immoral and unethical for the defendant. But unless there is a claim that rises to the level of malpractice based on breach of a professional or contractual duty, Frost is no more liable to Schwarz than are the many other Americans who make bad judgments in choosing a mate or engage in nefarious extra-marital coitus."(27)

Sexual harassment

Sex with a client is not the end of the line. Several courts have disciplined attorneys for sexually harassing their clients. Attorneys have been disciplined for improper sexual remarks,(28) unwanted sexual advances,(29) unwanted touching,(30) and taking nude photographs of a client under pretext.(31)

There is a dangerous mixture of sexuality and power that may develop between attorneys and their clients. Attorneys--who serve in a counseling relationship and a relationship of trust--have a moral, legal, and ethical responsibility to act in the best interest of their clients.

Notes

(1.) Melissa M. Eckhause, Note, A Chastity Belt for Lawyers: Proposed MRPC 1.8(k) and the Regulation of Attorney-Client Sexual Relationships, 75 U. DET. MERCY L. REV. 115, 118 (1997).

(2.) These states are California, Florida, Iowa, Minnesota, New Jersey, New York, North Carolina, Oregon, Utah, West Virginia, and Wisconsin.

(3.) These states are Arizona, Colorado, Georgia, Hawaii, Illinois, Indiana, Kansas, Kentucky, Louisiana, New Hampshire, New Jersey, New Mexico, Ohio, Pennsylvania, Rhode Island, South Carolina, South Dakota, and Washington.

(4.) These are Alaska, Maryland, and Pennsylvania.

(5.) These states are Alabama, Arizona, Kansas, Massachusetts, Michigan, Oklahoma, Texas, and Washington.

(6.) See American Bar Association, Comm. on Ethics and Professional Responsibility, Formal Op. 92-364 (1992); American Academy of Matrimonial Lawyers, Bounds of Advocacy: Standards of Conduct in Matrimonial Litigation, Rule 2.16 (1991); The Roscoe Pound-American Trial Lawyers Foundation, The American Lawyer's Code of Conduct, Rule 8.8 (rev. draft 1982).

(7.) See, e.g., Abed Awad, Attorney-Client Sexual Relations, 22 J. LEGAL PROF. 131 (1997); Linda Fitts Mischler, Reconciling Rapture, Representation and Responsibility: An Argument Against Per Se Bans on Attorney-Client Sex, 10 GEO. J. LEGAL ETHICS 209 (1997); Eckhause, supra note 1, at 115.

(8.) See MINN. RULES OF PROFESSIONAL CONDUCT Rule 1.8(k); WIS. RULES OF PROFESSIONAL CONDUCT Rule 20:1.8(k); see also N.C. RULES OF PROFESSIONAL CONDUCT Rule 1.18.

(9.) See MINN. RULES OF PROFESSIONAL CONDUCT Rule 1.8(k)(2); WIS. RULES OF PROFESSIONAL CONDUCT Rule 20:1.8(k)(1)(ii), (k)(2).

(10.) See IOWA CODE OF PROFESSIONAL RESPONSIBILITY DR 5-101.

(11.) See CAL. RULES OF PROFESSIONAL CONDUCT Rule 3-120; FLA. RULES OF PROFESSIONAL CONDUCT Rule 4-8.4(i); N.Y. DR 1-102(A)(7); UTAH RULES OF PROFESSIONAL CONDUCT Rule 8.4(g); W. VA. RULES OF PROFESSIONAL CONDUCT Rule 8.4(g).

(12.) David H. Pincus, Note, Lawyers in Lust: Does New York's New Rule Addressing Attorney-Client Sexual Relations Do Enough? 2 J.L. & POL'Y 249, 254 (1994).

(13.) Recently, the Michigan Supreme Court rejected a proposed per se ban on attorney-client sexual relations. Prom the Michigan Supreme Court, 77 MICH. B.J. 1364 (1998). The Michigan Supreme Court seemed to indicate the existing rules governing attorneys would govern any alleged sexual misconduct. The court said that "lawyers may be disciplined for `conduct that is contrary to justice, ethics, honesty, or good morals.'" Id. at 1364.

(14.) See, e.g., In re Piatt, 951 P.2d 889 (Ariz. 1997) (en banc) (attorney publicly censured and given one year probation for making improper sexual remarks); People v. Boyer, 934 P.2d 1361 (Colo. 1997) (attorney suspended for 180 days for engaging in sexual relationship with clients); In re Lewis, 415 S.E.2d 173 (Ga. 1992) (attorney suspended for engaging in sexual relations with client).

(15.) Alaska Bar Association Ethics Opinion, 88-1 (1988), 92-6 (1992); Maryland Bar Association Ethics Opinion, 84.9 (1983); Pennsylvania Bar Association Comm. on Legal Ethics & Professional Responsibility Opinion, 97-100 (1997).

(16.) See, e.g., McDaniel v. Gile, 281 Cal. Rptr. 242 (Ct. App. 1991) (finding triable issues of fact regarding the withholding of legal services by an attorney when sexual favors are not granted by the client as constituting outrageous conduct); Barbara A. v. John G., 193 Cal. Rptr. 422 (Ct. App. 1983) (attorney represented to client she could not get pregnant if they had sex; client became pregnant; court found the client stated causes of action for battery, fraud, and deceit); In re Marriage of Kantar, 581 N.E.2d 6 (Ill. App. Ct. 1991) (court allowed client to petition for recalculation of attorney fees because the attorney billed the client for time during which the attorney and the client engaged in sex).

(17.) See, e.g., Doe v. Roe, 756 F. Supp. 353 (N.D. Ill. 1991) (client sued based on RICO; court rejected that claim, finding the client stated a state cause of action for breach of fiduciary duty and intentional infliction of emotional distress), aff'd, 958 F.2d 763 (7th Cir. 1992); Edwards v. Edwards, 567 N.Y.S.2d 645 (App. Div. 1991) (district court found an attorney breached fiduciary duty to client by engaging in a sexual relationship during representation; however, the appellate court found no evidence that such a fiduciary duty was breached).

(18.) 565 N.E.2d 101 (Ill. App. Ct. 1990), superseded by statute as stated in Garcia v. Pinto, 629 N.E.2d 103 (Ill. App. Ct. 1993).

(19.) Recently, an Illinois appellate court disagreed with Suppressed and found that "if an attorney obtains information in the course of representing a client which suggests that the client might be unusually vulnerable to a suggestion of sexual involvement and the attorney uses that information to seduce the client, we would find a breach of fiduciary duty without regard to whether the client was charged a usual monetary fee or the client's legal interests suffered as a result." Doe v. Roe, 681 N.E.2d 640, 650 (Ill. App. Ct.), appeal denied, 686 N.E.2d 1160 (Ill. 1997).

(20.) Suppressed, 565 N.E.2d 101, 106 n.3.

(21.) 688 A.2d 830 (R.I. 1997).

(22.) Id. at 835-36.

(23.) Id. at 836.

(24.) Id. at 845-46 (Flanders, J., dissenting).

(25.) Id. at 847.

(26.) 35 Phila. 97, 1998 Phila. Cty. Rptr. LEXIS 42.

(27.) Id. at *24.

(28.) In re Piatt, 951 P.2d 889; People v. Meier, 954 P.2d 1068 (Colo. 1998) (per curiam); Oklahoma Bar Ass'n v. Miskovsky, 938 P.2d 744 (Okla. 1997).

(29.) See In re Ashy, 721 So. 2d 859 (La. 1998).

(30.) In re Adams, 428 N.E.2d 786 (Ind. 1981).

(31.) Iowa Supreme Court Bd. of Professional Ethics & Conduct v. Steffes, 588 N.W.2d 121 (Iowa 1999).

Michael A. Patterson and Edward J. Walters Jr. practice law in Baton Rouge, Louisiana. Andree M. Braud practices law in New Orleans.3
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Title Annotation:disciplinary actions, malpractice liability may arise from consensual sex between attorneys and clients
Author:Braud, Andree M.
Publication:Trial
Geographic Code:1USA
Date:Aug 1, 1999
Words:2739
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