What harm is there in lawyers having affairs with their clients?
The Louisiana Supreme Court addressed this interesting question when a lawyer was reported to the Disciplinary Board by an angry husband.
The Court discussed six separate cases where the lawyer in question, who specialized in family law, ended up in a sexual affair with a client or former client. It is not known how the Court knew about the other five affairs since nobody had filed any specific complaints, but they ended up all being part of the disciplinary proceedings against this one lawyer. It took four days to get through the testimony.
Each affair was analyzed by the Court to see whether there was an ethical breach or not. In each case, the woman was not named except by initials. In each case, the women had no complaints about the lawyer and, in fact, reported that they had a positive experience.
Client #1 The woman actually never became a client, but she did consult the lawyer about wanting a divorce and ended hiring another lawyer. Regardless, lawyer and almost client started dating and had a sexual affair that lasted about a year.
Client #2 The client’s divorce was finalized and the sexual affair started a few months later. After the affair started, the lawyer performed one further small legal service that was indirectly related to the completed divorce.
Client #3 The client was in the six-month waiting period between the filing for the divorce and the finalization of the divorce. The client invited the lawyer to her house for a drink and a “sexual encounter” occurred.
Client #4 During the pendency of a divorce, the client suggested to the lawyer that they start dating. The lawyer declined saying he could not date a client whereupon the client fired the lawyer, the lawyer withdrew from representing her, and then they started an affair. The lawyer was “of counsel” in a firm and referred her to another lawyer in the firm to continue with her divorce.
Client #5 The client hired the lawyer to handle her divorce. While the divorce was pending, client and her husband reconciled and the lawyer withdrew from the representation. The following year former client and her husband split again, but former client hired a different lawyer. Former lawyer and former client started an affair a couple of months later.
Client #6 Lawyer files for a divorce on behalf of his client. Client calls lawyer one evening and asks to come to his house because her husband is following her. Client and lawyer see husband outside lawyer’s house taking pictures. This is the husband who files the complaint against the lawyer with the Disciplinary Board. Lawyer informs the husband’s attorney the next day that he is withdrawing as client’s lawyer. The motion to withdraw is signed on June 16 and the affair between lawyer and client starts on June 21 when they take a trip to Houston together.
Two other woman There were two others in this case involving the same lawyer that we know about where sexual relationships were not established. In one case the lawyer took the client out to dinner and then hugged and attempted to kiss her. The other client claimed that the lawyer made inappropriate comments during the initial consultation and she decided not to hire him. The lawyer denied the attempt to kiss and the inappropriate comments. It is interesting that only the two who did not have an affair with the lawyer seemed unhappy with the encounter.
The Disciplinary Board, which takes evidence and makes recommendations, had different views on the ethics violations and the appropriate punishment. We will look only at the decision of the Louisiana Supreme Court, which is all that really matters.
Client #3 was the easiest case to decide. The sexual encounter took place during the waiting period between filing for divorce and confirming the divorce. This was clearly an ethical breach. The case of Client #4 was a bit more difficult. Even though the Disciplinary Board found that being of Counsel insulated the lawyer, the Court determined that being “of counsel” to a firm is nearly the same as being a member of the firm. Therefore, having an affair with a client represented by another member of the same firm is a clear ethical breach. The Disciplinary Board and the Hearing Committee felt that having an affair with a former client or a person who consults the lawyer but no client-lawyer relationship is established is also a breach of ethics, but the Court disagreed and found no ethics breach as to Clients #1, #2, #5, and #6. Nor did the Court find fault as to the additional two woman, although the Disciplinary Board thought that the attempted kissing, but not the hugging, of the client he took out to dinner was a problem.
The Supreme Court suspended the lawyer for six months, but deferred three months of the suspension.
The takeaway: it may be OK for a lawyer to have a sexual affair with a client as long as the person is not a current client of the lawyer or of the lawyer’s law firm -even if the lawyer is only “of counsel” to the firm. Additionally, to be safe, hugging is OK while kissing a client apparently might not be OK. Also, it may help if the client considers the experience to be “friendly and positive” or “positive and beneficial” as two of the women put it.