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August 3, 2003

ethicalQuickie: sexual relations rule is overbroad

Filed under: pre-06-2006 — David Giacalone @ 8:57 pm

To the utter surprise of this Editor, there appears to be a considerable amount of interest about the Washingon (State) lawyer who is being suspended from practice for a year for having sex in a jail cell with her murder-defendant client.  Ken Lammers at CrimLaw Blog raised the topic on Thursday (7/31/03) and discussed some caselaw on August 2nd, while that ol’ CurmudgeonlyClerk added comments and research on Friday (8/01/03).  They were both responding to a story that has received a lot of media attention since July 29th, for example from CNN’s law page.

Although none of my frequent readers wants mere gossip, as a public service for others attracted by the headline of this posting, I’m linking here to the saucy Seattle Post-Intelligencer Lifestyle Column by Susan Paynter, which gives a lot of highly unnecessary details. (July 30, 2003).   For some reason, Paynter thinks somebody would care that “[I]t’s far from over, personally, professionally or legally, for the flamboyant, crusading 43-year-old defender who allegedly had sex with her 26-year-old client much more often than once.”  Or, that Olson was “continuing the Clintonian insistence the act she engaged in “‘wasn’t sexual intercourse.'”  Throwing in a couple quotes from the Supreme Court justice who drafted the Court Rule banning lawyer-client sex really doesn’t give the column any socially redeeming value either.

ethicalEsq? will instead keep itself out of the editorial gutter by focusing on the ethical controversy within the profession over recently-drafted and adopted rules that ban all sexual relations between an attorney and a client (unless a consensual sexual relationship existed with the client prior to entering into the lawyer-client relationship). As the Curmudgeonly Law Clerk explains:

“Indeed, there is a growing body of caselaw on the issue of sexual contact with clients in a variety of contexts. However, the notion that lawyers and clients may never, under any circumstances, become romantically or physically involved is actually quite controversial. For a thorough synopsis of the debate over relatively new rules in this area of attorney ethics, see Christian F. Southwick, Ardor and Advocacy: Attorney-Client Sexual Relations and the Regulatory Impulse in Texas and Across the Nation, 44 South Texas Law Review 307 (2002). [apparently not yet available online]

You can find ABA Model Rule of Professional Conduct 1.8(j-k), which bans sexual relations with clients here.  The relevant sections of Rule 1.8 are:

(j) A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.

(k) While lawyers are associated in a firm, a prohibition in the foregoing paragraphs (a) through (i) that applies to any one of them shall apply to all of them.

Washington State Rule 1.8(k) can be found here.   In addition to the Model Rule’s ban, it addresses (but not very helpfully) the issue raised by the representation of an organization rather than an individual, and explicitly states that the rule does not apply to lawyers in a firm who do not actually participate in the representation of the client.

Your Editor has a some problems with blanket bans.   The primary fault is that they seem to ignore the not infrequent situation where both the lawyer and the client are adults. Of course, there are circumstances where it is ethically improper for a lawyer to have a sexual relations with a client.   However, to say that all such conduct is improper (unless there was a prior relationship) seems to place regulatory convenience over common sense, and to show a greater suspicion about the character of lawyers than is otherwise present in the disciplinary system (e.g., regarding fees).

  • Imagine, for example, the young, single lawyer and client who meet and fall in love while working on a complex tax or bankruptcy case that takes several years to complete, rather than during the early stage of a matrimonial matter, where the client is emotionally fragile.  At what point does the ban become absurd?

I think lawyers can handle a more subtle approach that requires using a concept more sophisticated than a total ban.   The route taken in the New York State Code Model Code DR 5-111 seems far preferable:

DR5-111 Sexual Relations with Clients.

A. “Sexual relations” means sexual intercourse or the touching of an intimate part of another person for the purpose of sexual arousal, sexual gratification, or sexual abuse.

B. A lawyer shall not: 

1. Require or demand sexual relations with a client or third party incident to or as a condition of any professional representation.

2. Employ coercion, intimidation, or undue influence in entering into sexual relations with a client.

3. In domestic relations matters, enter into a sexual relations with a client during the course of the lawyer’s representation of the client.

C. DR 5-111 (B) shall not apply to sexual relations between spouses or to ongoing consensual sexual relationships that predate the initiation of the lawyer-client relationship.

D. Where a lawyer in a firm has sexual relations with a client but does not participate in the representation of that client, the lawyers in the firm shall not be subject to discipline under this rule solely because of the occurrence of such sexual relations.

It is hard to imagine a consensual sexual relationship that would not be covered by DR 5-111, but which should nonetheless be the subject of discipline as improper professional conduct — especially when New Model Rule 8.4 also covers “conduct involving dishonesty, fraud, deceit or mispresentation,” and virtually all states (including Washington) are still using an older version of Rule 8.4, which also prohibits “any act involving moral turpitude, or corruption” and “conduct demonstrating unfitness to practice law.”  

To be frank, I’m even leery of the blanket ban against sexual relations within matrimonial matters set out in subsection B (3) and in the Rules of other states.   Although written to apply to both genders, the source of the ban appears to be the somewhat sexist notion that female matrimonial clients need special protection from male matrimonial lawyers.   The emotional state of a matrimonial client certainly could and should be taken into account within the factors set of in subsections B(1) and (2).   Picking out a particular kind of case for a total ban might, in fact, create fertile grounds for loophole-making by zealous defense counsel in disciplinary hearings.  

As always, I encourage your Comments. 

  • BuffsLaw asks whether the sex bans reflect sexist attitudes about powerful male lawyers and weak females, and the meaning of that stereotype within the profession here (April 23, 2005),


  1. I commented further on this on 02 August 2003 as part of “From Around the Blawgosphere.”

    Comment by ken — August 4, 2003 @ 12:32 am

  2. I commented further on this on 02 August 2003 as part of “From Around the Blawgosphere.”

    Comment by ken — August 4, 2003 @ 12:32 am

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