Improper Advances the Rule Against Sex With Clients
| Publication year | 1998 |
| Pages | 40 |
67 J. Kan. Bar Assn. June-July, 40 (1998). IMPROPER ADVANCES THE RULE AGAINST SEX WITH CLIENTS
June-July, 1998
Copyright (c) 1998 by the Kansas Bar Association; J. Nick Badgerow
I. Introduction and Overview
Clients place extraordinary trust in their lawyers. They confide in them their deepest secrets, with the implicit confidence that those secrets will not be disclosed or used against them. They expose their wishes, goals and ambitions, with the hope that the lawyer will help in achieving them. And clients rely on their attorneys to advocate for the clients' interests and not to advocate or pursue their own interests at the expense of the clients.
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The attorney-client relationship can be a close one. Working together toward a common goal, long hours of trial preparation or document drafting, sharing the joys of victories or consoling each other over defeats, can lead to close friendships between attorney and client. But implicit in this professional relationship is the duty of the attorney to make sure that the close relationship does not go too far. The lawyer must make sure that there is no confusion in the relationship. Trust and reliance are good things. Abusing and taking advantage of trust and reliance are not.
The strongest example of a lawyer taking advantage of a client arises where the lawyer induces the client to engage in a sexual relationship. Despite every appearance of being voluntary, the lawyer and client are not on equal footing, and there must always be doubt that the client is not acting voluntarily. Yet, in Kansas and most other states, there are no specific rules against a sexual relationship between lawyer and client. A recent case decided by the Kansas Supreme Court, Matter of Berg [FN1] demonstrates why no specific rule ought to be required but also makes clear that a specific rule should now be adopted. No specific rule ought to be required, because a sexual relationship between attorney and client violates several existing rules in the Model Rules of Professional Conduct, [FN2] and there should never have been any doubt that the conduct was improper. Violation of those rules has led to discipline of attorneys in a number of cases, as well as civil liability in cases brought by clients against lawyers. But, the fact that lawyers have argued the non-existence of a specific rule as a defense to claims of impropriety highlights the need to resolve the issue definitively by the adoption of a specific rule. A specific rule may also ensure public trust that lawyers, as a self-policing profession, have the courage to take a stand, adopt a specific rule, and to prohibit improper behavior.
II. In Re. Berg--Discussion.
A. Overview and Pertinent Facts.
On March 6, 1998, the Kansas Supreme Court entered a comprehensive decision in a lawyer disciplinary case in Matter of Berg. There, the court discussed six separate complaints that had been filed against respondent, a practicing lawyer, involving three separate clients. After discussing the facts of each case in detail, [FN3] and analyzing the applicable Model Rules, the court ordered the respondent disbarred. The respondent lawyer was found to have engaged in inappropriate sexual relations with the clients, which was held to violate several applicable ethical rules. [FN4]
Client vulnerability. In each case, the court affirmed findings by the hearing panel that the client had been emotionally vulnerable at the time of the representation, mainly due to domestic relations and child custody issues. [FN5] And in each case, it was found that respondent took advantage of the vulnerable condition of his client, and initiated sexual relations with them on several occasions. Some of these included encounters shortly before an important court hearing. [FN6] One of these occurred after respondent provided alcohol to a female client who was a minor at the time. [FN7] All of this conduct, and its timing, were used to facilitate the sexual gratification of the respondent.
The panel hearing included testimony from a psychologist, who testified that respondent was a sexual addict or sexa-holic. He testified that it would be more difficult for a sexa-holic to practice in the area of domestic relations representing females "because there is a tremendous amount of emotion in this field." In these situations, because of the vulnerability of the female client, "the male attorney becomes a powerful figure taking care of the woman," and the "'client is in a very weakened state, very vulnerable."' [FN8]
The Supreme Court's review of the facts justifies its reasoning:
The clients in the present situation never fully understood the complete legal significance of their acts. They were literally compelled to allow respondent's advances in the belief such was necessary to protect their representation. [FN9] Noting that the attorney-client relationship is commonly characterized as a professional relationship of trust, Peter Rutter, a noted psychiatrist and medical professor, describes sexual contact that occurs within that professional relationships of trust as "sex in the forbidden zone."
At first glance, the attorney-client relationship does not necessarily invite the level of trust and intimacy that is so central to the medical, psychotherapeutic, or pastoral relationships . . . . Nevertheless, there are
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several reasons why the attorney-client relationship is subject to the sexual prohibitions of the forbidden zone. First, we must consider the emotional impact of how outer-world problems are resolved to measure how centrally important the attorney-client relationship can be. The result of a legal proceeding can either crush or heal the spirit to the same degree as relationships that deal more directly with inner events. Second, the power dynamics are the same as in other forbidden-zone relationships, and they evoke in women the same psychological vulnerabilities. Third, many sexual liaisons between attorney and client take place with family lawyers who take divorce and child-custody cases. Family law cases involve the possibility of a woman losing her home, her economic base, and even her relationship with her children. The attorney holds enormous power over the women in situations in which she is faced with the threat of unbearable loss and suffering. The fact that lawyers are not as well trained as therapists in the field of human emotions can increase the sexually abusive potential of this inequality of power. [FN10] Respondent's Defense. Respondent defended these charges on several grounds. First, respondent pointed to the absence of a specific rule. [FN11] This the court resolved by listing numerous other provisions of the Model Rules of Professional Conduct that are violated by the accused conduct, and quoting with approval from the recent Illinois case of In re Rinella [FN12]:
Initially, we reject the respondent's contention that attorney misconduct is sanctionable only when it is specifically proscribed by the disciplinary rule. On the contrary, the standards of professional conduct enunciated by this court are not a manual designed to instruct attorneys what to do in every conceivable situation . . . . [W]e do not believe that respondent, or any other member of the bar, could reasonably have considered the conduct involved here to be...
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