Lawyers question need for client sex prohibition

At least six lawyers have raised concerns about a Virginia State Bar proposal to explicitly ban lawyers from initiating sexual relations with a current client.

But there is no consensus on what’s wrong with the proposal. One lawyer questioned the need for specifically addressing sex, as opposed to overbearing conduct in general. Others would prefer more specifics, banning kissing and other unwanted touching.

The proposal was advanced in December by the VSB Standing Committee on Legal Ethics. There is a decade-old legal ethics opinion on the subject, but the opinion language is advisory only. In addition, since LEO 1853 was adopted in 2009, before all LEOs required Supreme Court approval, the cautionary language carries little official weight.

The VSB proposal would add a new subsection to Rule 1.8 of the Rules of Professional Conduct: “A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.”

Common complaint

Lawyers making unwanted advances to vulnerable clients is a common complaint, VSB leaders said, especially for clients involved in divorce cases.

Some practicing lawyers agree. Veteran family law practitioner Sandra D. Bowen said an explicit ban on client sex is “way overdue.” The Richmond lawyer said she’s heard frequent, first-hand complaints about male lawyers making unwelcome overtures to female divorce clients.

“I can’t even tell you the number of times,” Bowen said in comments to the bar. But Bowen said the rules should ban more than sexual relations.

“Spell it out in the new rule: no kissing; no touching; no acts that could be considered sexual in nature,” she wrote. Bowen said the divorce bar can explain all the ways people do “sexual things without actually having ‘sex’ and claim that as a defense to adultery claims.”

James R. Wrenn Jr. of Midlothian also urged more specificity to get at the problem.

“For the sake of clarity, should not the prohibition be that a lawyer ‘shall not solicit, suggest, request, seek, engage in, or permit any sexually-intimate activity…’?” Wrenn asked.

Wrenn – former VSB Bar Counsel – suggested a far more detailed rule. Among his suggested language:

“Sexually intimate activity between a lawyer and a current client or non-current client shall be rebuttably presumed to pose ethically unwarranted risks of (i) adversely affecting the lawyer’s ability to objectively exercise professional judgment in the course of providing advice, service or representation for a current client and/or (ii) adversely affecting a legal or personal interest of the current (or non-current) client, and/or (iii) blurring legal or factual distinctions in ways that may adversely affect issues involving attorney-client confidentiality or privilege with respect to the current (or non-current) client.”

Under Wrenn’s proposal, the presumptions arising from that section could be rebutted under terms of another section.

LEO ‘sufficient’

One lawyer saw no need for change. The words of caution in the existing ethics opinion are sufficient without any additions to the rule, contended former VSB president Kevin Martingayle of Virginia Beach. He served on the VSB ethics committee when LEO 1853 was approved and said the opinion was the product of “a very thorough analysis.”

“I am not aware of anything new that has happened to warrant revisiting this,” Martingayle said.

The proposed rule language is a departure from the simplified approach used in more recent rule drafting, he added. “Isn’t a broader prohibition against overbearing conduct better?” Martingayle asked. He also questioned whether a lawyer has failed in representation merely because a sexual relationship developed. “This is a ‘cure in search of a problem,’” Martingayle said.

Invasive

Others see the proposed rule as restricting the freedom of both client and lawyer in making decisions about adult relationships.

Amy McDougal of Loudoun County objected, saying she does not agree that a client has no ability to give “adequate informed consent” to a sexual relationship with the client’s selected attorney.

“Certainly, it would never be appropriate for attorneys to be ‘hitting on’ their clients in the course of representation or to be conditioning fees [on] sexual acts. However, I believe the rules already sufficiently protect against this conduct,” McDougal wrote.

“While I agree that attorneys are in a position of power and are fiduciaries, I do not believe that a client’s choice and consent to engage in a sexual relationship is any more complex than a client’s consent to waive other types of conflicts of interest where permissible under the rules,” McDougal said.

The proposed rule language “presumes that a client cannot fully understand the implications” of the choice, she said. “Ultimately, the client is in the driver’s seat and has total power because only the client has the ability to terminate the relationship,” McDougal wrote.

Andrew Straw of Washington appeared to agree.

“The proposed rule goes too far and infringes personal relationship choices beyond what criminal law prohibits,” Straw wrote. “When a lawyer violates a sexual behavior criminal law, this is already unethical and that is enough,” he said.

In-house lawyers

Two lawyers expressed concerns about sexual relationships that arise when a lawyer represents a corporation or is part of a governmental legal department. A proposed comment to Rule 1.8 would prohibit a sexual relationship with one who “supervises, directs or regularly consults with that lawyer concerning the organization’s legal matters.”

“I think there may be some unintended consequences” with that language, said Leslie A.T. Haley of Richmond.

What if the lawyer is married to one of the department heads who regularly consult with the lawyer, Haley asked. She suggested that removing the “regularly consults” language would meet the concern.

Peter Owen of Arlington said the corporate-counsel comment overlooks the possibility of a relationship between two young lawyers of equal stature in the organization or a relationship where the non-lawyer supervisor is the aggressor. Owen recommended rewriting the in-house attorney comment to address “the unique characteristics of in-house attorneys.”

October vote?

The proposal to outright ban attorney-client sex was scheduled to come before the VSB Executive Committee and Bar Council at the VSB Annual Meeting in Virginia Beach in June. With those meetings now cancelled amid the coronavirus response, the proposal could be deliberated by those bodies at October meetings at The Homestead. The Supreme Court of Virginia would have the final word on any rule changes.