Monday, October 4, 2010

Texas lawyers' proposed 'sex with clients' rule exposes rifts

Lawyers and their love lives have made for pretty good television over the years, but the state's real-life failure to regulate sexual relationships between lawyers and their clients is becoming one of Texas' longest-running legal dramas.

For seven years, lawyers working on behalf of the Texas Supreme Court have been drafting new rules of conduct for state-licensed attorneys.

Now, with a draft of those rules finally on the table, the biggest sticking point has been the innocuously named Rule 1.13, or as it is more interestingly known, the "sex with clients" rule.

Unlike the large majority of other state bars, the State Bar of Texas' rules of conduct do not include any prohibitions against an attorney engaging in a sexual relationship with a client – a common restriction for licensed professionals from doctors to social workers to massage therapists.

Such a rule might seem simple to put on the books but, in fact, has been under discussion for decades in some legal circles.

"Right now, we have no such rule at all. It's just been kicked around and kicked around," said Tom Watkins, an attorney who has headed up the task force on disciplinary conduct for the Texas Supreme Court.

At last, a proposed rule has been written. But getting the state's lawyers to agree on it is another story altogether. Before any rules are adopted, the Supreme Court must review them, and they must be approved in a vote of the entire state bar.

A date for the vote has not yet been set, but when it is, approval of the rule is far from certain.

Some lawyers have argued against adopting a rule regulating sex between lawyers and clients, saying it could lead to frivolous malpractice charges.

Others say the lack of a rule opens the door for lawyers to manipulate vulnerable clients into unwanted sexual relationships without fear of reprisal from the bar.

While the bar's proposed rule would largely restrict sexual relationships, it wouldn't preclude them entirely.

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.

To the layman, that might seem like a fairly straightforward prohibition. But to legal minds on both sides of the issue, the rule is rife with shortcomings and potential abuses.

"It's like the old lawyer's joke that a good settlement of a lawsuit is where everybody is unhappy, so this must be a good rule," Watkins said.

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.

Particularly troubling to Agnew is the loophole in the rule that she says would permit an attorney to begin and continue a sexual relationship with a client so long as the client is transferred to another attorney in the same law firm. That provides no protection at all to vulnerable clients, she said.

"When you have a situation where lawyers are the ones who hold the keys to the courthouse for many people ... that is a potential situation of abuse," Agnew said.

Meanwhile, 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.

Efforts to reach Robins were unsuccessful, but Watkins said his concerns are common among the rule's opponents.

Agnew said that the state bar actually needs to adopt a stricter rule that would forbid any sexual relationship between lawyers and clients. It should also prohibit a lawyer from transferring a client to another lawyer in the same firm once a relationship begins, she said.

Linda Eads, a professor at Southern Methodist University's Dedman School of Law, disagreed that the rule isn't strict enough.

The rule "provides notification to the lawyers of Texas that they cannot engage in this behavior and have sex with clients," said Eads, a former chair of the state bar committee on disciplinary rules.

"The only exception is if you are already married or have a pre-existing relationship. ... We don't want people [in existing relationships] to be prevented from helping [a partner] with legal advice," she said.

Eads said the proposed rule is adequate as written, but added she would have no problem if it were amended to prohibit a lawyer who begins a relationship with a client from transferring that client within the same firm.

In many ways, the state bar's proposed rule is similar to the American Bar Association's model rule, which states that a lawyer will not engage in a sexual relationship with a client unless the relationship began before the attorney-client relationship.

Agnew said that the model rule is a good start and that it would be better to adopt it or something close to it than to let the rules be approved without including any prohibition of sex between lawyers and clients.

Despite her concerns over the strength of the proposed rule, it's important to get something in place to protect clients, she said.

"I would like it to be the strongest possible rule, but I would be deeply disappointed if once again we vote down a no-sex-with-clients rule," she said.

Attorneys working on behalf of the Texas Supreme Court and State Bar of Texas have proposed the state's first rule prohibiting lawyers from engaging in sexual relationships with clients.


• Lawyers won't condition representation on having a client engage in sexual relations.

• Lawyers won't solicit sex as payment of fees.

• Lawyers 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 or if the attorney and client are married.

Why it's controversial: Opponents say it could lead to frivolous lawsuits. Proponents say a stricter rule is needed to close loopholes in the proposed rule.

What's next:

The State Bar of Texas board of directors will submit a final draft of the rule to the Supreme Court on Wednesday.

The court will review the proposed rules of conduct for state-licensed attorneys and release them for a vote of the entire state bar on a date to be determined.

By RUDOLPH BUSH,, The Dallas Morning News

Source: Dallas Morning News

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