Lawyers Ethics: Sexual relationship with their clients

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It is one of the most vital issue of professional conduct and a sensitive one too. There is no specific provision in Legal Profession Act 2004 that has specific binding rule which prohibits sexual relations between lawyers and clients in Australia. I have discussed few important points in my presentation which are relevant and need to be discussed in this context. Though, there is no specific rule so I had to go through different case law and judge’s view on this topic. I have organized my presentation with different opinions and different view of couple of person who are involved in law arena for many years like Law Institute’s President Chris Dale, Attorney General Rob Hull, NSW Law Society’s former President, John Marsden and Social Worker Louise Akenson. They gave their own view and logic on the alleged topic. Moreover I have given some example of some recent cases which involves client and lawyer’s relation and the approach taken by the court. Apart from Australia’s view I also wanted to portray some pictures of different country on this issue whether they have adopted this matter in their country and how they deal with it. Keeping that in mind I have given example of USA, New Zealand, and Great Britain etc. and discussed their law accordingly in this regard.

In conclusion of this topic, It can be said that, being in any profession means that we should all act professionally and maintain our integrity if we are to be regarded as professionals. It does not matter in which profession we are in, our duty to serve clients keeping their trust on us intact and keeping our personal life completely separate from our professional life should be our first priority. Our commitment to professionalism and common sense are the only guides we need to conclude that lawyer-client sex creates an inconsistent conflict of interest.

Presentation:

In absence of any law, preventing lawyers from having a sexual relationship with their clients inevitably raises the question whether it is ethical. This has been an issue of debate in legal profession for a long time all over the world and the matter is still undecided in Australia.

There is no specific provision in Legal Profession Act 2004 that has specific binding rule which prohibits sexual relations between lawyers and clients. If any problem arises it would normally be dealt under the broader category of “Conflict of Interest”. In Law society of NSW V Harvey,[1] the NSW court of Appeal identified some important elements which mainly focused on the lawyer’s duty to act in good faith. The Court of Appeal stated that, “the lawyer must not permit their own interests to override those of the clients; the clients’ interests are paramount”[2]

Attorney General Rob Hulls in considering this issue raised a lot of important questions. The question was made to Law Institute of Victoria to investigate whether a professional practice rule is needed to deal with this ethical dilemma and these kind of involvement are a blatant abuse of professional ethics and there should be a specific rule.[3]

A barrister from Melbourne, Paul Reynolds’ certificate was suspended for 6 months after he asked a client for sex. Considering this incident Law Institute’s President Chris Dale said that a lawyer-client relationship is a complex one and in some cases this relation can be regarded as appropriate, such as a lawyer-client getting involved while dealing with Conveyancing matters but stricter ethical rule should be drawn in Family law matters.[4]

Louise Akenson[5] did not support the idea that a strict rule should only apply to situations where lawyers dealt with family law matters. He thinks that client can be vulnerable who are bankrupted or in criminal law matters someone who is dependent on drugs can also be vulnerable.[6]

In 2010, a lawyer from Canberra was found guilty[7] of professional misconduct over allegations that he developed a sexual relationship with a client. The ACT Law Society alleged the legal practitioner had a sexual relationship with the client while representing her. Although the lawyer alleged that the relationship began before he was her solicitor, the Legal Practitioner’s Disciplinary Tribunal found him guilty regardless.

When a client comes to a lawyer he is required to be giving the client a totally neutral and objective view of the case regardless of how the client feels about his/her case. If the lawyers get sexually involved it can be generally assumed that the lawyer gets emotionally involved as well. “Being involved in a sexual relationship with a client inevitably means that the lawyer has the most basic own interests at jeopardy. And no matter how flawless the relationship, human experience teaches that there will be times when the lawyer’s feelings and desires are in turmoil and his/her interests in the relationship at risk. Inevitably, during those times the client’s interests will suffer.”[8]

Coming at this point of the discussion, it can be said that lawyers’ professional independent judgments get seriously hampered when their personal interest gets inside their work. It then gets to a point where they can breach their fiduciary relationship and can abuse their position of trust. A similar situation happened with practitioner Ms. Morel, who was struck off for entering into several personal relationships with the prisoners whom she represented.[9] The Supreme Court concluded that “the technical competence of Ms. Morel is not the subject of complaint. What makes her unfit to practice is an apparent and continuing failure to discern the barrier between professional and personal relationships, to the detriment of her clients and her integrity as a legal practitioner.”[10]

A good number of people involved in this profession do not consider this issue to be unethical. According to NSW Law Society’s former President, John Marsden, a lot of his sexual partners have been his clients and he feels there is nothing unethical about that.[11]

In 1996, NSW Council of Law narrowly rejected (by 11:9 vote) to adopt a specific professional conduct rule under which legal practitioners could be disciplined. Having failed this, the Council published a non-binding resolution.[12] The move to adopt a specific professional conduct rule resulted from a report by Keys Young, “Gender Bias and the Law”)[13] which showed wide spread sexual harassment and discrimination against women. The NSW Bar took a similar resolution in 1995, later adopted by the law society. Various women legal groups also put pressure to have binding rules. Victoria Bar Association in 1999 accepted sexual harassment regulations. Queensland Law society wanted to insert regulations against sexual harassment in the codes of conduct for lawyers which were later rejected.[14] Law Council of Australia in March 2004 issued a “Model Equal Opportunity Briefing Policy for Female Barristers and Advocates” to overcome the bias against female lawyers. Although all these attempts were taken in Australia to come up with a rule/regulation to prevent sexual relations, it was never clarified or mentioned whether these preventions should form as a strict code of conduct.[15]

On the other hand, USA is vigorously trying to tackle this issue by taking stricter approach. US bar Association (ABA) approved Formal Opinion 92-364 in 1992 and in 1989 California Bar Association inserted a regulation in their Professional Conduct Rule 3-120. Other states like Minnesota and Wisconsin also adopted strict measures. In Tante V Herring, an Us lawyer were suspended for 18 months where an he used client confidential information to convince a client to have sexual relation.[16] Moreover in New Zealand sexual relation with client is considered as a breach of ethics according to commentary (3) to r 1.01. [17]

In conclusion, It can be said that being in any profession means that we should all act professionally and maintain our integrity if we are to be regarded as professionals. It does not matter in which profession we are in, our duty to serve clients keeping their trust on us intact and keeping our personal life completely separate from our professional life should be our first priority. Our commitment to professionalism and common sense are the only guides we need to conclude that lawyer-client sex creates an inconsistent conflict of interest.

[1] [1976]2 NSWLR 154

[2] [1976]2 NSWLR 154

[3] “Hulls considers lawyer-client sex ban” By Law reporter Fergus Sheil, 15 June 2004

[4] “Hulls considers lawyer-client sex ban” By Law reporter Fergus Sheil, 15 June 2004

[5] Lawyer and Former Social worker

[6] “Lawyers Who sleep with Their clients” a radio programme by Radio National (http://www.abc.net.au/rn/talks/8.30/lawrpt/stories/s1441926.htm)

[7] ACT reporter Katherine Paul (http://www.abc.net.au/news/stories/2010/03/09/2840451.htm)

[8] “Lawyers-Client sex: A per se Violation of Rule 1.7(b)” By the NHBA Ethics Committee, Aug 18, 1993

[9] “Ethics in Law” By Ysaiah Ross, 4th Edition, Butterworths

[10] Ethics in Law” By Ysaiah Ross, 4th Edition, Butterworths

[11] Sydney Morning Herald,17 June 2000, Page-3

[12] “Sex, lawyers and ethics” an article written by Stan Ross in Law Institute Journal(Oct,1998) page 38.

[13] Department for women, NSW Govt.,1995

[14] Courier-Mail, Brisbane, 4 September 1998

[15] Ethics in Law” By Ysaiah Ross, 4th Edition, Butterworths

[16] Tante vs Herring 264 Ga 694,453 S.E 2d 686(1994)

[17] “Ethics in Law” By Ysaiah Ross, 4th Edition, Butterworths

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