Should sex between lawyers and clients be outlawed?

Family Law|November 28th 2016

It sounds like something out of a television drama or a film. A broken-hearted man or woman sits in a lawyer’s office as they consider their failed marriage and what possible hope for happiness they could have in the future. Then the lawyer walks in. Immaculate suit and hair styled just so. The lawyer exudes power, confidence and poise. Suddenly a light goes on in the heart of the client and, despite thinking this expensive lawyer is way, way, beyond reach, the lawyer suddenly flashes a smile. The two lock eyes. Something has begun.

This was the modus operandi of the great divorce lawyer Arnie Becker of LA Law. It used to be my favourite TV programme in the 80s and 90s. Becker had no qualms at all about having an affair with his clients. Just a flash of those teeth, combing back his blonde hair to perfection … and there they’d go again. But sometimes it wasn’t exactly love. Perhaps a client was ruthlessly using the lawyer to keep fees down. Or the lawyer was getting paid in kind. And often – predictably – it didn’t end well.

But it doesn’t happen in real life, does it? Well it seems it just might. The California Bar Association has just proposed a blanket ban on sex with clients.

Supporters of a ban claim that the relationship between a lawyer and their client is “inherently unequal”. Under those circumstances, any physical relationship could be seen as coercive. I suppose it’s possible that high legal costs might be one root of the problem for those who can’t otherwise afford to pay.

The measure has been proposed as part of an effort to update the ethics rules for solicitors. The last time these rules were updated in the state was back in 1987. Anyone who is caught violating these rules risks punishment which can include private censure or the loss of their legal licence.

Some California lawyers are trying to resist the ban. James Ham is a member of the commission responsible for updating the ethics rules. In a document submitted to this commission he wrote that those who proposed a blanket ban “cannot articulate why a lawyer should be disciplined for sexual relations with a mature, intelligent, consenting adult, in the absence of any quid pro quo, coercion, intimidation or undue influence”. That’s good. But … just go prove it, James.

In any event, this conversation will keep going in the state until March 2017. That is the deadline for the commission to submit its proposed changes to the California Supreme Court.

For what it’s worth, no such ban exists in England and Wales. The latest version of the Solicitors Regulation Authority’s Code of Conduct does, however, make it clear that a solicitor must at all times act in his or her clients’ best interests and be aware of the potential for conflicts of interest.

So is there something in the water in the Golden State? I know it’s the home of Hollywood but is there an epidemic of lawyers and clients really getting romantically involved?

Perhaps I’m just narked because the closest I ever came to something like this was when a wealthy client took me to lunch at a fancy restaurant in Leeds, right by the river. He asked me if he could pay me a compliment. Unsure where this was going, I took a deep breath and said he could.

I waited for the compliment.

“Marilyn, you have the most fabulous…  [drum roll] …brain.”

There were all kinds of ways that sentence could have ended. Luckily, I burst out laughing. It was just a truly lovely thing to say to a professional. No awkwardness required and sighs of relief all round. Sort of.

Truth be told, a woman does like a real compliment now and again, when like a swan gliding on the water, underneath there’s a terrible battle going on, year in year out, to stay a certain dress size.

So while romantic relationships do happen between clients and lawyers, and I do remember one divorce lawyer running off with a client this side of the pond, I am not sure they are common enough to require an outright ban. Even though you cannot legislate for human attraction, I imagine that most people, lawyers and clients alike, realise what a hornet’s nest they would be stirring up if they acted on it.

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Comments(2)

  1. Andrew says:

    Of course in California they don’t usually award adverse costs. In the year 1977 I was acting for the landlord of a block of flats where one of the tenants was making a nuisance of herself and I had to apply for possession.

    We got a suspended order with costs. In the lobby she offered to settle the order horizontally. She was a stunningly beautiful woman and I was a single man; in fact I met my wife some six weeks later. But I thanked her politely and declined, saying that I could not have brought it into account in the firm’s books.

  2. Mehul Desai says:

    Well you think it would be obvious, perhaps there is some substance…we have had a case here in England reported in 2015, please see: K v D (Parental Conflict) [2015] EWFC 49

    bailii.org/ew/cases/EWFC/HCJ/2015/49.html

    One of Justice Peter Jackson’s thrillers. Acrimonious private law children dispute where the Solicitor representing the mother started sleeping with her while proceedings were still ongoing, which no doubt added to the ante. The Solicitor self-referred himself to the Solicitors Regulation Authority… Justice Peter Jackson had “grave concerns” and in closing said: “the ends cannot justify the means if it is not proper for him to be acting. I direct the parties to refer these observations to the SRA and, if the solicitor continues to accept instructions, to any judge conducting future hearings.”

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