Paralegal Hell reports on a proposed amendment to the Texas Disciplinary Rules of Professional Conduct that would prohibit lawyers from having sex with their clients which is, believe it or not, dividing the Texas bar at public hearings on the proposal.
According to her post,
The State Bar of Texas held the hearings at nine locations around the state. With regard to the proposed no-sex-with-clients rule, there was a marked difference of opinion among lawyers who spoke at the hearings.
Houston attorney Rich Robins, speaking at the Sept. 1 hearing in Houston, said that proposed Rule 1.13 — the no-sex-with-clients rule — makes lawyers susceptible to grievances if a client dissatisfied with a settlement makes a false accusation. Robins said that he “doesn’t engage in it” but that he doesn’t think there should be a disciplinary rule banning sex with clients.
“If it’s consensual, what’s wrong with it?” Robins asked during the hearing, which was attended by approximately 50 people.
But Susan Morrison, a partner in The Fowler Law Firm in Austin, told State Bar officials at the Sept. 10 hearing in Austin, “We’ve got to bring our level of professionalism at least up to the level of massage therapists. They have a rule; we need one.”
Morrison says in an interview that when lawyers have a grievance filed against them for having sex with clients, their defense often is “show me the rule that tells me I can’t do this.”
Well, first of all let’s be clear: When one person is in an unbalanced relationship with another, where one is dependent on the other, when one is in a stressful situation, the decision can never be truly consensual – or at least we can never be sure it is. If my client decides to leave me her house in her will, I can’t draft the will because of the danger that the gift is not truly consensual. That’s why there is a presumption of undue influence in such relationships. If the attorney does not have those basics down, they should be spending their time in CLE, not having sex with their clients.
But that’s attorneys you say. This is a blog for paralegals. Well the same considerations apply. As I stated in a previous post any kind of “social relations” is suspect when it occurs between a member of the law office part of the legal team and the client. It is likely to be ethically wrong even when there is no specific rule of conduct prohibiting it:
One reader of this blog arrived here as a result of a Google search that asked, “can paralegal see client socially after legal relationship ends?” Here are some thoughts on the topic:
It is likely that you will not find a direct answer to this question in any of the various professional association Codes of Ethics such as the NFPA Model Code of Ethics and Professional Responsibility, but the answer can be derived from such codes as it can be derived for attorneys from the ABA Model Code. In general, since there are no paralegal code of ethics enforceable in the same way as the attorney’s bar rules are enforceable against attorneys, regulation of paralegal conduct is derivative of the rules governing attorneys. So, it is appropriate to look to rules governing attorneys and the advice given to them on issues such as this based on those rules.
Certainly both attorneys and paralegals must refrain from becoming engaged in an intimate relationship with a client during the course of the professional relationship. There are several reasons for this, including:
- Such a relationship can affect the objectivity of the members of the legal team
- The lawyer and paralegal may be taking advantage (even if not consciously) of the already existing special relationship with the client – on in which the client is dependent upon the lawyer or paralegal
- In most instances legal proceeding are stressful and traumatic placing the client in the position of not being able to make objective decisions about intimate relationships with others involved in those proceedings
- Such a relationship can affect the expectations of the client
For these reasons and others dating clients during the professional relationships is not permitted as it violates the Code provisions requiring objectivity and the like. For example, the American Academy of Matrimonial Lawyers advises :
D. Lawyers and Clients Should Maintain an Appropriate Professional Relationship.
Sometimes friendships and even romances develop between lawyers and clients. Many lawyers have close personal friendships with former clients. But because of the intense emotional nature of a divorce, it is usually best for lawyers and clients to defer establishing a social relationship until after the case is over. Romantic relationships are not advisable as they interfere with a lawyer’s objectivity and affect a client’s expectations. A divorce lawyer and a client should never have a sexual relationship during the case.
This does not, however, settle the question as to whether a paralegal can ethically date a client once the professional relationship is over. While the issue of objectivity may be eliminated, there is still the question of whether the client has gained enough distance from the professional events to make a free, knowing and independent decision to enter into the romantic relationship. Keep in mind that the lawyer and paralegal must not only avoid a direct violation of the specific rules of conduct, but also ” avoid impropriety and the appearance of impropriety.” NFPA Model Code EC-1.3(b).
Finally, keep in mind that whatever the rules of conduct may provide, your employer’s vision of what constitutes “the appearance of impropriety” should be considered. Should the client again need legal services make sure you advise your attorney of the romantic relationship before the client engages the services of the attorney. It may affect the lawyer’s decision on whether or not to take the matter, and whether to assign you as a paralegal on that matter.
Much of professionalism involves doing the right thing even when the rules do not say you have to.
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