I wrote a previous blog about the ethical rule that indicates that an attorney in Wisconsin is prohibited from having a sexual relationship with a client.
SCR 20:1.8 Conflict of interest; prohibited transactions in part, reads as follows; ” (j) A lawyer shall not have sexual relations with a current client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.
(1) In this paragraph, ‘sexual relations’ means sexual intercourse or any other intentional touching of the intimate parts of a person or causing the person to touch the intimate parts of the lawyer.
(2) When the client is an organization, a lawyer for the organization (whether inside counsel or outside counsel) shall not have sexual relations with a constituent of the organization who supervises, directs or regularly consults with that lawyer concerning the organization’s legal matters.”
In this morning’s paper, a local Milwaukee attorney, Othman M. Atta was disciplined by our Wisconsin Supreme Court relating to his having had a sexual relationship with a client he was representing in a divorce and immigration matters.
The attorney received a public reprimand. The attorney’s former client filed a grievance with the Office of Lawyer Regulation alleging that the attorney had purposely delayed the filing of certain divorce documents when she broke off the relationship with the attorney.
Apparently, the attorney initially denied the allegations and told OLR investigators that the former client had threatened to accuse him of inappropriate conduct if he did not agree to marry her. The former client also apparently has filed a legal malpractice case against the lawyer.
The issues raised are (a) what is the logic that prohibits an attorney from having a sexual relationship with a client, and (b) is a public reprimand enough of a discipline for such conduct?
The American Bar Association comment to the rule prohibiting a sexual relationship between an attorney and a client reads as follows:
“The relationship between lawyer and client is a fiduciary one in which the lawyer occupies the highest position of trust and confidence. The relationship is almost always unequal; thus, a sexual relationship between lawyer and client can involve unfair exploitation of the lawyer’s fiduciary role, in violation of the lawyer’s basic ethical obligation not to use the trust of the client to the client’s disadvantage. In addition, such a relationship presents a significant danger that, because of the lawyer’s emotional involvement, the lawyer will be unable to represent the client without impairment of the exercise of independent professional judgment. Moreover, a blurred line between the professional and personal relationships may make it difficult to predict to what extent client confidences can be protected by the attorney-client evidentiary privilege, since client confidences are protected by privilege only when they are imparted in the context of the client-lawyer relationship. Because of the significant danger of harm to client interests and because the client’s own emotional involvement renders it unlikely that the could could give adequate informed consent, this Rule prohibits the lawyer from having sexual relations with a client regardless of whether the relationship is consensual and regardless of the absence of prejudice to the client.”
“Sexual relationships that predate the client-lawyer relationship are not prohibited. Issues relating to the exploitation of the fiduciary relationship and client dependency are diminished when the sexual relationship existed prior to the commencement of the client-lawyer relationship. However, before proceeding with the representation in these circumstances, the lawyer should consider whether the lawyer’s ability to represent the client will be materially limited by the relationship.”
Not only is it prohibited under the ethical rules, it is just not a good business practice for an attorney to even remotely consider having a romantic relationship with a client. What happens when the relationship breaks off? What happens if the client’s case goes bad? What happens if the client switches lawyers? What happens when other attorneys or staff in the office start talking about the lawyer and the client behind their backs? What happens when people in the courthouse start talking about the lawyer and their client? What happens if the lawyer is married and their spouse finds out that they have been cheating? I think the answer to all of these questions spells the easy answer. You shouldn’t need an ethical rule that prohibits a lawyer from having a sexual relationship with a client. It is ill advised from a business perspective, emotional perspective and best interests of the client’s perspective. The rule prohibits it, so why would a lawyer do it?
There are several different levels of lawyer discipline in the state of Wisconsin. (a) a private reprimand (b) a public reprimand (c) a suspension of the law license for a set period of time and the most severe (d) disbarment, where you are forever barred from the practice of law. This least severe is a private reprimand. The next level is the public reprimand, where the public and others learn of the unethical infraction. That is what occurred in this particular case. If you read the rule carefully and the ABA comments, it appears a pretty serious infraction. You would think the lawyer would know better and know what they are facing by violating the rule. What’s your opinion? Is a slap on the wrist and the lawyer being told not to let this happen again, even if made public, severe enough of a punishment for violating the ethical rule of conduct that makes it clear that you can’t sleep with a client. I know my thoughts on the issue. What do you think?
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