Hello everyone and welcome to this JACPA Ethics Alert which will discuss the recent media reports of a Connecticut lawyer who stated to a state lawyer disciplinary panel (and wrote in a brief to the statewide grievance committee) that lawyers who have romantic relationships with their clients provide better representation and that disciplinary rules which limit or prohibit such relationships are counterproductive and violate the U.S. Constitution.
According to the media reports, including the Norwich Bulletin, Connecticut’s lawyer discipline system began investigating the lawyer when it received a complaint alleging that he began representing and having a personal romantic relationship with a woman he was representing in an ongoing divorce proceeding. The discipline complaint was made by the former (or soon to be former) spouse.
The lawyer apparently told the disciplinary panel investigating the matter: “My advice to a woman going through a divorce is, find a competent trial lawyer and make him your boyfriend.” He is also quoted as saying: “There is not a conflict of interests. It’s a coincidence of interests. I know that’s not what they want to teach at Sunday school. But I live in the real world.” The lawyer said he has been representing his fiancée in the divorce for the past five years.
The lawyer (who maintains primarily a bankruptcy practice) recently filed a 75-page brief with the Connecticut statewide grievance committee appealing a decision made by a two-person disciplinary panel that he violated Connecticut lawyer discipline rules by engaging in the relationship. The lawyer argued that the panel’s report was “replete with errors”. Further, “(t)he panel has no business making such a recommendation” for him or any other lawyer. “This is aggressive judicial paternalism versus freedom of association”.
The lawyer was also quoted as saying: “There are fundamental constitutional ramifications here. This is the type of fight I live for” and that he believes that lawyer discipline rules limiting or prohibiting such personal relationships are unconstitutional and infringe upon a lawyer’s freedom of association and also are evidence of an unnecessarily “aggressive judicial paternalism.” He said that he is prepared to testify before the statewide grievance committee and also to request that the ACLU appeal the case further, even possibly to the U.S. Supreme Court.
Bottom line: The various state Bar Rules prohibiting or limiting romantic (i.e. sexual) relationships between lawyers and clients are designed to protect the client, the legal profession, and lawyers since such relationships may arguably cloud judgment, create conflicts of interest, and become exploitative, particularly if the client is vulnerable. Florida has been wrestling with the disciplinary rules (and the constitutional questions) related to such relationships for years.
Current Florida Bar Rule 4-8.4(i) does not prohibit such relationships outright but contains a presumption that the client’s interests are exploited or adversely affected when the relationship starts after the representation begins. The Bar Rule states as follows:
A lawyer shall not: (i) engage in sexual conduct with a client or a representative of a client that exploits or adversely affects the interests of the client or the lawyer-client relationship.
If the sexual conduct commenced after the lawyer-client relationship was formed it shall be presumed that the sexual conduct exploits or adversely affects the interests of the client or the lawyer-client relationship. A lawyer may rebut this presumption by proving by a preponderance of the evidence that the sexual conduct did not exploit or adversely affect the interests of the client or the lawyer-client relationship.
The prohibition and presumption stated in this rule do not apply to a lawyer in the same firm as another lawyer representing the client if the lawyer involved in the sexual conduct does not personally provide legal services to the client and is screened from access to the file concerning the legal representation.
…be careful out there!
| As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.
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