Attorney Misconduct, Legal Ethics, Sex, Texas

Texas Tries to C**kblock Lawyers from Getting Their Freak on With Clients

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Today many people made time to talk about Texas legal ethics — specifically, a proposal in front of the Texas bar that would prohibit lawyers from having sex with their clients. It’s a rule most jurisdictions have in one form or another. It’s not obvious that getting this rule enacted in Texas would be a huge problem.

But to paraphrase Louis Gossett Jr., “only two things come from Texas, steers and [a horribly anachronistic term that rhymes with ‘steers’].”

Let’s deal with the steers first. It seems that the people against the new Texas Bar proposal are afraid that clients might just make up tales of affairs, and Texas lawyers — you know, people specially trained in methods of recognizing and producing evidence — will have no way to defend themselves…

The Dallas Morning News did a full report on the proposed rule, which prompted additional coverage from the ABA Journal and the WSJ Law Blog. The Dallas paper has this summary of the new rule:

As written, the rule states that lawyers (a) won’t condition representation on having a client engage in sexual relations, (b) won’t solicit sex as payment of fees and (c) won’t have sex with someone the lawyer is personally representing unless the sexual relationship is consensual and began before the attorney-client relationship began. It also excepts spouses.

Seem straightforward to you? Well, it seems like a straightforward invitation for more malpractice lawsuits, according to one Texas lawyer:

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Rich Robins, a Houston attorney, was quoted in Texas Lawyer last month stating that the new rule would lead to a slew of lawsuits from unhappy clients.

“How can a lawyer disprove potential accusations of amorous manipulations and the like unless all prior interactions are elaborately recorded through both audio and video means?” Robins asked in an e-mail to Texas Lawyer.

I’m not sure I fully understand Robins’s complaints, but it seems like Snoop Dogg and Ludacris once had a similar problem.

I mean, any number of state bars are able to have prohibit lawyer-client sex without being inundated by frivolous lawsuits claiming fictitious harassment. But maybe Texas lawyers just bring the freak out of their clients and therefore the bar can’t protect itself from amorous manipulations.

Meanwhile, the proposed rule has come under fire from another group of people who feel the rule doesn’t go far enough:

Ginny Agnew, an Austin attorney who has long been concerned about the lack of a rule to protect clients from the sexual advances of their lawyers, isn’t laughing.

Along with 11 other prominent female attorneys, she drafted a letter protesting the new rule, saying it simply isn’t restrictive enough.

“The proposed rule does not prohibit sex with clients – it prohibits only some sex with some clients by some lawyers. In fact, for two-thirds of the Bar, the rule would permit sex with clients. The rule would not adequately protect clients – male or female – from predatory lawyers,” the letter states.

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Well, some sex by some clients with some lawyers is probably the only way certain people are going to get a little something. Much as we want to pillory (or at the very least disbar) lawyers who make clients feel like the way to the courtroom is through the pants of an attorney, there’s nothing inherently immoral or unethical for a lawyer representing someone he or she used to bang. There’s nothing inherently immoral or unethical if a lawyer passes off a client to another firm partner after the lawyer and client start getting it on.

It seems that Ginny Agnew never learned an important lesson from Hannibal Lecter. How do we begin to covet? We covet what we see everyday. The people who lawyers see most on an everyday basis are other lawyers or their clients. It’s only natural that in some situations, those lawyers and clients will start coveting each other. And once that happens, there’s got to be a way for a lawyer and client to explore their personal relationship without causing the whole firm to lose the client or the client to lose trusted representation.

And if you tell lawyers and clients that they just can not under any circumstances have sex together… well, then all that’s going to happen is you’ll have more lawyers and clients lying to the bar and their partners, trying to keep relationships clandestine. Newsflash: people lie, especially when it comes to sex. All prudish sexual mores — from the Catholic Church’s prohibition against priests marrying to the current and ludicrous “abstinence only” arguments — fall prey to the same human impulse to have sex first and figure out how to lie about it later.

Why would you want to put lawyers and clients in situations where they consistently have to choose between their own sexual desires and whatever lawyer/client business they are trying to conduct? Because the sex is almost always going to win, and you’ve just created an incentive for lawyers to get really creative about keeping things secret and lying to their peers.

What happens when people are lying and trying to keep things secret? Abuse happens. The lawyer who says “I started banging this client so I need somebody else in my firm to take over the matter” is far less likely to be abusing his client than the lawyer who says “Sex with a client, I’d never think of such a thing! How dare you accuse me of such unethical behavior!”

So, let’s not get our panties all in a bunch over the mere thought of lawyer client sex. And let’s not act like lawyers are the prize and clients will be falling over themselves to falsely accuse them. In short, let’s all be a little bit more reasonable when it comes to this rule.

Reasonable + Texas = Possible? Let’s hope so.

Texas lawyers’ ‘sex with clients’ rule exposes rifts [Dallas Morning News]
On Lawyers and Clients and Sex, Deep in the Heart of Texas [WSJ Law Blog]
Proposed Texas Ban on Sex with Clients Is Subject of Hot Debate [ABA Journal]

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