Word that the California State Bar was mulling a blanket ban on lawyers having sex with clients has ignited fiery opposition from attorneys who say the bar needs to stay out of their bedrooms, thrusting a seldom-discussed issue into the national spotlight.
But while Golden State lawyers have been allowed to sleep with clients without running afoul of their bar’s ethical rules, attorneys in many other less liberal states, including the Carolinas, risk disciplinary action if they get busted for bedding clients – not that the rule has ended the practice.
At least 11 North Carolina lawyers have been disciplined in the past six years for either having sex with clients or trying, unsuccessfully and rather awkwardly, to get their clients into bed, according to a search of the N.C. State Bar’s disciplinary orders.
The orders include one censure, nine suspensions and one disbarment – and they paint sordid, sometimes cringe-inducing pictures:
A Fayetteville lawyer sent a text message to his client asking, “Can I hold your [breasts]?” He also told her in another text to “be nekked.”
A lawyer in Ahoskie asked a client how much each button on her blazer would cost to unbutton before he stepped behind her and tried to kiss her neck, prompting her to move away.
A Spruce Pine lawyer masturbated in front of a client.
An Elizabeth City lawyer advised a client he was representing in a child custody matter connected to a domestic violence case that she ought to “do some yoga” because she was going to “need to be flexible.”
And a Charlotte lawyer was suspended for sleeping with a woman he’d sued on behalf of a client in a personal injury case. In other words, he was having sex with the defendant. Not only that, he also agreed to represent the woman in several unrelated legal matters while he was engaged in a relationship with her and while he was still representing the personal injury plaintiff.
The lawyer now sells office equipment.
Similar disciplinary stats were not readily available in South Carolina. But Lawyers Weekly has reported on a handful of lawyers in the state who have gotten into trouble for flings with clients over the last few years.
One Palmetto State attorney also made headlines – and was privately admonished in 2010 – for sleeping with a client’s wife. The attorney, whose name was withheld in the disciplinary order, had been an “upstanding member” of the bar for 37 years and had a clean record before the indiscretion, according to the state Supreme Court, which handed down the punishment.
‘How does a drunk person know they’re intoxicated?’
Unsurprisingly, lawyers who have been disciplined for getting frisky with clients are not eager to publicly discuss the indiscretions. Only one of the lawyers named in the North Carolina disciplinary orders responded to an interview request, and he declined to comment.
However, an attorney in South Carolina agreed to speak on the record under the condition of anonymity. He described a devastating and humiliating experience. Still, he remained a staunch supporter of the rule against sleeping with clients. He said the rule is important because it “avoids the appearance of impropriety and the appearance of any conflict of interest that an attorney might have in giving candid advice to their client.”
When asked if he – or any lawyer – could have sex with a client and still manage to provide appropriate legal representation, he equated the question to one that a cop would pose to a suspected drunk driver during a traffic stop.
“If an officer asks someone pulled over for intoxication whether they think they’re drunk, how does a drunk person know they’re intoxicated?” he said. “I liken it to the same thing.”
Gregory Forman, a Charleston divorce lawyer with a popular family law blog – he wrote about the aforementioned lawyer who was busted for sleeping with a client’s spouse – said in a phone interview that getting too close to a client is always a bad idea as “it’s hard to give good legal advice to someone you’re having a sexual relationship with, because a lot of times it’s going to be advice they don’t want to hear.”
‘Not a moral provision’
In South Carolina, the ethics rule that addresses sex with clients is found under the provisions in 1.8, which concerns conflicts of interest.
The rule states that lawyers “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.”
Lesley “Lee” Coggiola, who heads the state Supreme Court’s Office of Disciplinary Counsel, said the rule is “not a moral provision.”
“People get all excited about the rule because it’s prurient or something,” she added. “But the bottom line is there are so many provisions about conflicts between a lawyer and a particular client and this happens to be one of them. In my mind, it isn’t any more significant [of a violation] than having a business transaction with a client.”
The rule in North Carolina, 1.19, essentially mirrors the American Bar Association’s model rule on the issue, stating simply: “A lawyer shall not have sexual relations with a current client of the lawyer.” The rule also prohibits lawyers from demanding sex in exchange for legal services. (The rules in North Carolina and South Carolina both make exceptions for pre-existing relationships, as do many other states.)
The North Carolina State Bar’s chief attorney, Katherine Jean, said a client’s vulnerability plays a significant role in determining the appropriate disciplinary action that is ultimately taken in these types of cases.
“The degree of vulnerability depends upon the specific circumstances,” Jean wrote in an email. “For example, a client who is a victim of domestic violence and whose lawyer is representing her in a domestic case would be particularly vulnerable.”
‘The status quo is awful’
Back in California, lawyers can have sex with clients without facing disciplinary repercussions as long as they can prove that the relationship did not hinder their ability to provide competent legal services, which, in light of data obtained by the Los Angeles Times, seems to set a relatively low standard.
While the state bar investigated 205 sex-related complaints against lawyers between 1992 and 2010, only one case resulted in an attorney being disciplined.
The proposed sex-with-clients ban, which is part of a larger effort to overhaul the state’s ethics rules for the first time since the last comprehensive revisions in 1989 and 1992, would mirror the ABA’s – and North Carolina’s – model rule.
Supporters say an outright ban on having sex with clients, spouses not included, would clear away the fog of subjectivity that defines the current rule.
But opponents of the proposal, which include the Los Angeles County Bar Association’s ethics committee, contend that the ban is unnecessary and would be an unconstitutional violation of privacy rights, according to the LA Times.
James Ham, a member of the bar commission that is revising the ethics rules, wrote in a dissent that he filed in opposition to the proposed rule change that there is “no empirical or even reliable anecdotal evidence that a complete ban on sexual relations is needed to protect the public or regulate the legal profession effectively.”
“The proposed rule also vests entirely too much discretion in prosecutorial authorities, who may apply the complete ban rule against some, but not others, in an unfair, arbitrary or capricious manner,” he added.
Another California attorney, Nicholas Grossman, commented: “Why is it anyone’s business who an attorney sleeps with? There is nothing wrong if an attorney wants to date a client, provided legal work is not done in exchange for sexual services, which the current rule already covers.”
But ban supporter Kevin Thomas said, “The status quo is awful. Disallowing sex with a client is a cost-free way to protect our most vulnerable citizens.” Another proponent, Irene Thomas, told the commission: “It’s shocking that this rule does not already exist. Attorneys having sex with clients? Are you kidding? What could possibly go wrong?”
The Golden State proposal – and the rift that it has created – is not without precedent. In 2011, lawyers in Texas considered a similar ban proposal and more than 70 percent of those who voted on the issue opposed the rule change.
The California bar is expected to finish the proposed rule revisions by March. The state’s Supreme Court must approve any of the changes before they can take effect.
Follow Phillip Bantz on Twitter @SCLWBantz