The Lawyer-Client (Sexual) Relationship

Image via ATL Blog

Q: What’s the difference between a lawyer and a prostitute?
A: A prostitute will stop screwing you when you’re dead.

Zach Needles at the Daily Report writes about a Pennsylvania lawyer who decided on an unconventional compensation arrangement:

The Pennsylvania Supreme Court has issued a one-year suspension to a Bucks County attorney who agreed to represent a female client in a DUI case in exchange for oral sex.

In a one-page July 17 order, the justices, adopting the recommendation of a three-member panel of the Disciplinary Board of the Supreme Court, granted a joint petition in support of discipline on consent in which attorney David H. Knight admitted to trading legal work for sexual favors and asked for a one-year suspension.

…

According to the petition, Doe was arrested for driving under the influence in November 2010.

In February 2011, Doe met with Knight, an attorney with Doylestown, Pa.-based criminal defense firm Fioravanti & Knight, at his offices in Levittown, Pa., the petition said. They had never met before.

During the meeting, Doe told Knight that she had received an Accelerated Rehabilitative Disposition for a previous DUI and Knight quoted her a fee of $1,000 to assist her in entering a plea agreement, according to the petition.

Doe told Knight she did not have much money and eventually agreed to perform oral sex on him, which she did after Knight locked his office door, the petition said.

A few weeks later, according to the petition, Knight entered his appearance as Doe’s attorney in the DUI case and remained her lawyer through the remainder of the case, according to the petition.

The petition said Doe performed oral sex on Knight on at least two more occasions following their first meeting but before the conclusion of the DUI case.

Well, at least Knight wasn’t greedy, as “[a]ccording to the petition, Knight never billed Doe nor collected any payment for his legal services.”

The Pennsylvania Disciplinary Board and the Pennsylvania Supreme Court appear to think that a one-year suspension is an appropriate deterrent.  Apparently, Pennsylvania has never heard of the concept of a lawyer as a fiduciary. Black’s Law Dictionary defines a fiduciary as:

The term is derived from the Roman law, and means (as a noun) a person holding the character of a trustee, or a character analogous to that of a trustee,in respect to the trust and confidence involved in it and the scrupulous good faith and candor which it requires. Thus, a person Is a fiduciary who is invested http://thelawdictionary.org/with-rights/”>with rights and powers to be exercised for the benefit of another person. Svanoe v. Jurgens, 144 111.507, 33 N. E. 955; Stoll v. King, 8 How. Prac. (N. Y.) 299.As an adjective it means of the nature of a trust; having the characteristics of a trust; analogous to a trust; relating to or founded upon a trust or confidence.

The operative word is “trust”. When a lawyer engages in sex with a client, or even arguably a former client, the lawyer not only breaches, but shatters the inherent trust  between lawyer and client and demeans the entire legal profession. To argue that the sexual relationship between the lawyer and client is “consensual” is a non-sequitur of epic proportions. Yet, if we believe the Pennsylvanian approach to legal ethics and professional discipline, this is an isolated incident:

According to the petition, there are no other documented cases in Pennsylvania involving a violation of Pennsylvania Rule of Professional Conduct 1.8(j), which became effective January 1, 2005, and prohibits sexual relations between a lawyer and a client regardless of whether it’s consensual and whether it prejudices the client.

“It’s a relatively new rule,” Philadelphia ethics attorney Stuart Haimowitz, who is not involved in Knight’s case, said Thursday.

Haimowitz explained that, prior to Rule 1.8(j), sexual relationships between attorneys and clients were covered, albeit not as well, under Rule 1.7, which states that “a lawyer shall not represent a client if the representation involves a concurrent conflict of interest.”

Are you kidding me? Um, yeah, asking your client for oral sex in exchange for legal representation is a conflict of interest, writ large. If one takes the report at face value, the reason there are no other reported cases of sexual misconduct involving lawyers is that consenting adults do not report their consensual sex conducted under consensual lawyers’ office desks. Gimme a break. Wait, there’s more:

Michael B. Hayes, an attorney ethics lawyer at Montgomery McCracken Walker & Rhoads in Philadelphia, agreed, adding that, when a relationship between a lawyer and a client is consensual, it’s rare for either party to even make a complaint to the Disciplinary Board in the first place.

I wonder if Hayes’ partner, McCracken’s first name is “Phil”. A similar banal quote from the ABA Journal story:

These are very, very difficult cases to prove in that they involve a consensual sexual relationship involving two people,” said attorney Stuart Haimowitz, who is not involved in the Knight case. “The Disciplinary Board would need to prove a case like this by clear and convincing evidence.”

Doing so is difficult or impossible, Haimowitz explained, in such a he-said, she-said situation.

 Newsflash. Ethics is not about informed consent or the hackneyed “he-said, she-said” false dichotomy The reason a client may not report having sex with their lawyer is not because they consented to the sexual acts. They may be in legal or financial jeopardy and feel pressured to engage in sex due to the apprehension that, if they don’t comply or acquiesce, the lawyer will abandon them and they will end up in jail, lose custody of their children, or go bankrupt.

Is a one-year suspension an appropriate punishment for a lawyer having sex with a client? It depends. Knight’s professional reputation, which took 27 years to build, is ruined. Will this deter other like-minded lawyers from seeking “glory hole retainers”? Doubtful. For every Anthony Weiner regaling young women with sexts and Twitter pics festooned with his male genitalia, or Eliot Spitzer doing the hotel rounds with hookers, there is a lawyer who thinks that clients are fair game.

I recall one former Ontario lawyer who was disbarred for sexual harassment of a client.  I always knew he would end up in trouble. He was a what 70′s feminists used to call a “male, chauvinist pig”. The only reason he was disbarred is because the client had the courage to complain about the sexual harassment. Not every vulnerable client has the wherewithal to speak out. Consider the historical sexual abuse covered up by the Catholic Church and Vatican officials, or doctors  sexually assaulting patients. Breaches of trust where the word “consent” does not rear its apologetic head.

If legal ethics are to mean anything, then it”s high time to replace the use of the word “consent” with “trust” when discussing legal ethics.

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