In nearly 50 years of combined legal experience, my partner and I have seen and heard more than our fair share of legal malpractice war stories. Most legal malpractice cases involve simple human error. For some cases, however, issues beyond simple error can add quite a bit of spice to the sauce. The “ghost pepper” of all such issues has to involve sexual relations with a client or the spouse of a client. While these cases represent a small percentage of malpractice claims overall, it is rather stunning how often sex with a client or with the spouse of a client becomes an issue in a legal malpractice setting.
Not surprisingly (or perhaps surprisingly for the uninformed), Rule 1.8m of the Rules of Professional Conduct provides that “a lawyer shall not have sexual relations with a client when the client is in a vulnerable condition or is otherwise subject to the control or undue influence of the lawyer, when such relations could have a harmful or prejudicial effect upon the interests of the client, or when sexual relations might adversely affect the lawyer’s representation of the client.” Let us help condense the rule – don’t have sex with clients – EVER. After all, aren’t all clients to varying degrees vulnerable? When can sexual relations with a client not be harmful or prejudicial to the interest of the clients – or to put it otherwise – under what bizarre set of circumstances can it be helpful to the interests of the client? The comment to the rules provides three reasons why sexual relations with a client creates a conflict of interest (there are certainly others):
First, a question may arise as to the voluntariness of a client’s consent to a sexual relationship. Lawyers are in a position of extraordinary trust and may not use that power and influence to entice a vulnerable client into an otherwise undesired sexual relationship.
Second, sexual relationships are inappropriate when the existence of the relationship could prejudice a client’s legal interests, especially when the client is involved in a domestic relations case.
Third, a lawyer engaged in an intimate sexual relationship with a client may not be able to exercise the proper degree of professional judgment and independence required to fully represent the client.
So how can sex constitute malpractice? If we start with the proposition that the relationship itself created a conflict of interest that should have prevented the attorney from engaging in the representation in the first place, you can appreciate the significant lead that a client will have in a malpractice claim if he or she obtains a “bad result.” Did the bad result occur because the lawyer’s judgment was impaired as a result of the illicit relationship? Maybe, maybe not – but it is an allegation that any attorney would like not to defend. It could also be that the bad result occurred more directly from the relationship itself. Take for example a contested domestic case in which adultery can directly impact the custodial situation of the children of the marriage, the award of spousal support of the division of marital assets. Would having sex with a client in a domestic action in direct violation of Rule 1.8, which then has a negative impact on the marital property rights of the client constitute a malpractice claim? You bet it would.
Take for example another strange but real world situation we have confronted in the past. Attorney represented a husband in a criminal matter. The attorney met on several occasions with both partners of the marriage. The attorney started to take a romantic interest in the wife. Of course, the lawyer didn’t share this with the husband. The couple struggled financially and couldn’t fully pay the quoted fee for the matter. The attorney told the wife that fees had to be paid or the representation would terminate. Of course, there was a way that the remaining portion of the fee wouldn’t have to be paid. You know the rest. Needless to say, when the relationship finally came to light (and it always does), the husband was less than pleased to know that his attorney extorted his wife for sex in exchange for a concession on the fees.
The bottom line is this – sex with clients is malpractice. Of course, it would have to be the same arrogance, hubris or ignorance that would lead one to believe that it would be “OK” to have sex with the client “just this one time” which would also lead the same person to defend the conduct against the inevitable malpractice claim that would follow. Just as there’s no crying in baseball, there’s no sex in the practice of law – at least not with the clients or client’s spouses or significant others.
Eric Bland and Ronnie Richter