Sexual Ethics Affect Lawyers' Professionalism, Panel Says

October 30, 2002
Smith and Dudley
Law professors Stephen Smith (left) and Earl Dudley participated in a Phi Delta Phi panel,"Sex in the Legal Profession: An Ethical Perspective," Oct. 28 in Caplin Pavilion.

The prevalence of sex in law firms shown in TV shows like "L.A. Law" may or may not be accurate depending on the office, but the sexual ethics of real lawyers deserve to be on trial — or at least be addressed, according to members of a panel sponsored by Phi Delta Phi at the Law School Oct. 28.

The panel, moderated by law professor Earl Dudley, also included law professor Stephen Smith, U.Va. Patent Foundation executive director Robert MacWright, and Phi Delta Phi executive director Tim Wheat. All agreed that sex between clients and lawyers, lawyers and employees, or even between two lawyers can create considerable ethical, professional and legal risks for those involved.

Sex between a client and lawyer "can pose significant dangers to both the client and the lawyer," Dudley said. The client is often the vulnerable person in the relationship and can even personally depend on the lawyer, especially in family law or domestic relations cases. The lawyer "needs a certain amount of emotional distance" to keep his client's interests in mind as well.

Dudley said he knows of some happy lawyer-client marriages, but often sex between lawyers and clients can strain the professionalism of the lawyer and even those around him. He recalled a case that happened over 20 years ago in which a senior partner in a firm represented a client who brought substantial fees to the firm. The partner learned that a younger lawyer also on the case had a "torrid affair with the client." He considered this an obvious breach of professionalism and took him off the case. But the client stormed in and demanded that he be put back on the case or the senior partner was off the case. In the end the younger lawyer was restored to the case.

Robert MacWright (top) said different office environments can affect how office relationships are accepted. Tim Wheat said lawyer-client relationships may enforce negative views of lawyers.

Wheat, who said he saw first-hand the perils of lawyers who engage in sexual relations with clients, said it's "always an invitation to disaster." He added that it's against the canon of ethics in most areas, and can give ample supporting evidence to those who have negative views of lawyers.

"Lawyers are often seen as takers rather than givers" Wheat said, and the perception of a lawyer taking advantage of a client through sex only supports that opinion. As a lawyer, "you literally have the power to change someone's life forever," he said, especially in family law cases. "It is incumbent upon the lawyer never to abuse that supreme position."

Smith drew a connection between what he saw as an overall lack of professionalism in big law firms and the lack of regulation of lawyers' behavior, in comparison to the regulation of doctors' behavior. Unlike medicine, law is a "business, plain and simple, and it's a shame," he said, noting that the emphasis in big firms is on the billable hour. He requires students taking his seminar to watch The Devil's Advocate, a film starring Al Pacino as the devil, who chooses a mega law firm as his vehicle for ruining all humankind.

Sex between lawyers and clients has been called "'our business's dirty little secret,'" Smith said. Clients "are people who tend to be vulnerable to lecherous lawyers."

Smith noted that the Hippocratic Oath forbids doctors from engaging in sexual relations with patients, and it was installed over 2,000 years ago. Today in California a doctor-patient sexual relationship warrants a $10,000 fine and up to three years in prison.

"Our business, of course, has lagged far behind," he said. New York, for example, limits the rule barring sex to clients in domestic relations cases. California laws are vaguer, but do forbid coerced sex. At least 20 states have flat prohibitions against lawyers having sex with clients, he said. Similarly, some universities prohibit professors from having sex with students, but others, like the Law School, say professors can't have sex with students who are in their class or who are under their power in some way.

"Are we doing the right thing … or is this just sexual McCarthyism run amok?" Smith asked about such regulations. Smith said lawyers should make a choice about which is more important — representing the client, or having sex with the client. "You don't get to screw the client twice," he said. "If you want to sleep with somebody, don't represent them."

He said banning sex is "not just a paternalistic exercise." If clients have sex with lawyers, they won't be able to exercise control over their representation. "How do you separate pillow talk … from official lawyer-client discussions?" He pointedly looked at students in the audience, "you all need to know that the B-pluses you get [are] because you deserve them."

While it doesn't pose as many ethical questions as lawyer-client relationships, sex between lawyers "can provide both strains on the professional as well as the personal relationship," Dudley said. Charges of jealousy or favoritism are more easily lobbed by other lawyers in the firm who are aware of such a relationship. If lawyers from different firms or lawyers on opposing sides of a case have a relationship, "confidentiality can be compromised."

Relationships between a lawyer and non-lawyer in the firm could invite exposure to harassment or liability suits if the relationship sours. "This is not to say that all sex involving lawyers is bad," Dudley said. About a year after former Supreme Court Justice William J. Brennan's wife died of cancer, he married his secretary of over 20 years. Dudley said both marriages were happy.

MacWright said he has seen examples of relationships between lawyers in good and bad situations. When he was an associate in Kenyon & Kenyon in Manhattan, it was a male-dominated workplace with no female partners. There was also a "high incidence of sexual relations between women who worked at the firm and the male lawyers who had all the power." One female associate at the firm was having an affair with her boss, the most respected lawyer in the firm, although both denied it. MacWright said the associate felt the affair gave her a stronger voice and lorded her power over the other associates; for example, she often tossed her colleagues' draft briefs in the trash. Two years later, the relationship ended and her abusive behavior became grounds for her dismissal.

At the same firm, lawyers felt strangely about a senior paralegal who had had affairs with two partners at different times; both partners had gotten brain cancer during the affairs. She ended up choosing to leave the firm after working there for 20 years.

MacWright suggested the closed environment of Kenyon gave rise to more unhealthy relationships. When he worked at Skadden, Arps, the power structure was open to women, and it wasn't unusual for some of the partners to be gay. There were all kinds of sexual relationships going on, he said, but because it wasn't a power tool, it didn't have the same impact on the workplace environment.

With the long hours and travel that are often involved in the profession, MacWright said, "there's much more of an opportunity for sex between lawyers in the legal environment."

Although some firms may frown on in-office dating, Smith said he opposed a flat ban. "Even if you can enforce it, I think it's unwise," he said, although he jokingly criticized the idea of two lawyers in a relationship together. "You should have one real person in every relationship," he said.

Even the appearance of impropriety can impact your case, MacWright said. During a trial in Delaware, MacWright and his team went to a restaurant and saw the defendant's team walk in and eat with the court clerk, who handles the jury during the case. The appearance that she had a relationship with the lawyers, although she did not, got her fired when MacWright's team brought it to the judge's attention. The judge cited the defense's ill behavior — including the court clerk outing — in his opinion in favor of MacWright's team.

So what do you do if you find yourself in such an ethical dilemma? Keeping it quiet "knowing it may not be the right thing to do" is worse than airing a private relationship, Wheat said. But even if you disclose to a judge a relationship with the client, there's no guarantee you'll be excused from the case, he added. If you represent the client alone and have a relationship, MacWright said, you may be liable for malpractice, but handing the case over to a more senior lawyer if you work on a team may mitigate your risk.

"If it's true love, you'll gladly surrender the billable fee," Smith said. "If we want to be a profession, we have to behave like a profession."

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