Many years ago, before I was admitted to practice law, I worked for someone who was, even back then, considered an old time criminal defense lawyer. He didn’t know much about the law. He was a “trial man,” a rough and tumble kind of lawyer who was full of bravado and not much else.
He had a blue collar type of practice, with an emphasis on numbers, small-time drugs and prostitution, the basic vices of uptown Manhattan at the time which provided the primary source of his income.
Every once in a while, a female client would walk into his office, the door would close, and he would emerge a short time later all sweaty and disheveled. Even now, the image is revolting.
At Bennett’s Defending People and Lat’s Above the Law, the question was posed whether lawyers should be permitted to have sex with their clients. It arises because of a proposed new rule in Texas prohibiting such conduct, with California close behind. On the one hand, there is the problem of freedom of association, a lawyer being as entitled to exercise constitutional rights as real people. On the other, it’s an opportunity for a person in a position of trust to take advantage of vulnerable people, to abuse that trust.
Over the past 25 years, I’ve had the occasional offer of sex in lieu of payment. I’ve declined. I use it as a teaching moment for clients about the duty of a lawyer toward their clients. Some appreciate the lesson. Others would prefer to save the money. Neither has persuaded me to change my view.
Like Bennett, I’m not in favor of a regulation governing even minute aspect of the lawyer/client relationship. But then, I naively hope that lawyers would behave professionally and honor the trust given them by clients just because it’s the right thing to do. Perhaps there is an epidemic of lawyers having sex with clients which compels changes to clarify the lawyer’s duty. If so, I’m not aware of it, but then there are many things that happen out there that don’t touch my practice. There’s no regulation that says lawyers shouldn’t give clients a wet willy, but I want to believe that such a regulation isn’t needed.
When my former boss closed his office door, it was wrong. He took advantage of people who needed him, relied on him, for his own gratification. This had nothing to do with his right of association or privacy, and had everything to do with violating trust. It’s true that some of the women who were behind that closed door took no issue with what happened there, but that’s because abuse of trust, abuse of their bodies, was common to their lives.
I have no doubt that others closed their eyes and thought of anything other than being with that old, disgusting man. But they lacked the money to pay, and did what they had to do. Sometimes, these women were the spouses or girlfriends of clients, rather than the client themselves. This took it to an even lower depth of abuse, but didn’t seem to alter my former boss’ willingness to take advantage of the situation. He rationalized his conduct as doing them a favor. It’s amazing how people can lie to themselves to justify doing wrong.
There is no circumstance, no situation, in which a lawyer should engage in sexual conduct with a client, or on behalf of a client. If there’s true love behind the impulse, then wait until after the case is over. This doesn’t threaten any right of the lawyer, and there is no legitimate argument against precluding lawyers from trading sex for a fee, or using their position of trust to persuade someone to engage in sex with them. The rule should be clear and absolute.
That we need to have a rule, or have a discussion about having a rule, is a sorry reflection on lawyers and humanity. But lawyers are people, and often people who take a very flexible view of their duty to allow them to do whatever they please no matter how obviously wrong it is. And so a need arises for rules to prohibit lawyers from doing things they know they shouldn’t do. So be it.
There are plenty of people out there in the world to love and lust. Keep your hands off your clients. Keep your hands off your clients’ wives, girlfriends, mothers, sisters and friends. That’s the price of holding a position of trust, and if it’s too high for you, then you shouldn’t be a lawyer.
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The lawyer takes advantage of their position of power and trust and charges fees which are very high and often non-negotiable. Rational female clients perhaps would rather save their money for sexually non-negotiable goods and services like mortgage payments and groceries and save sexual barter for car salesmen and lawyers.
It’s kind of presumptuous that the lawyer is in the power position of a sexual barter with a beautiful woman.
Never having been a lawyer, a criminal defendant, nor a hot (or, for that matter, unhot) woman, I can’t speak from personal experience, but it seems to me that anybody in a situation where, say, she has good reason to fear being locked up for at least many months and who is not heavily endowed with bucks isn’t exactly in a position of power in a negotiation with the one person who has given her what may look like an out.
You are right, it is presumptuous. Yet we indulge certain presumptions for the greater good and because the presumption is more likely true than not. For those instances in which the rational beautiful woman prefers to barter sex for legal services, entirely independent of any abuse of trust on the part of the lawyer, she’ll just have to pay or find a cheaper lawyer. We do this to protect those who are neither as fortunate nor rational, and who are subject to an abuse of trust.
Texas and California are a bit behind the curve, I guess. Washington enacted such a rule back in about 2000. Notably, the rule was enacted right *after* the Supreme Court disbarred a lawyer for engaging in the conduct–a fairly high-profile type lawyer at that.
Personally, I’ve never seen the attraction of dating out of the waiting room, but I have other oddities too.
Sir, (Bad Lawyers) with good intentions. Your right, it kind of makes you want to puke.
But Bad Lawyers have been screwing clients for centuries, you’d think it would have caught up to them by now. I can’t get the image of the fat, sweaty slob out of my mind. I hope your point sinks in on a massive scale. Cash is king but herpes trumps it ever single time. Thanks.
Given your remarkable good looks and suave personality, it’s obvious why such improprieties would never appeal to you.
Is it more ethical to accept money earned via prostitution than directly accepting sex in trade?
Other than the sex bartering being tax fraud, I don’t see the difference.
Of course you’re completely correct. Many criminal defense lawyers here, fighting some systemic wrongs, yet the American puritanical ethos that eschews human sexuality as worse than gun violence apparently resides in posters here as well.
The distinction is the same as defending a person against an accusation of a crime and participating in the crime. Not to mention, you neglect to recognize the entire abuse of trust aspect. So to answer your question, yes it is, and the failure to understand the distinction is quite unfortunate.
I remember when I first heard that argument, when advocates for NAMBLA argued for the right of adult men to have sex with young, consenting boys. Somehow, I imagine that lawyers can find an outlet for their insatiable sexual appetites without preying on their clients. If it makes you feel better to call it the Puritanical ethos, that’s fine with me.
And the second time you heard that argument was to justify Nazi Germany?
Obviously you recognize the difference between young boys and consenting adults.
Would you say a attorney trading representation with a dentist for a root canal is really that different from sex from a prostitute?
That’s the point, when there is an abuse of trust, there is no consenting adult. There is a lawyer abusing his position to obtain sex.
Is it that difficult to find someone willing to engage in sex that you need to have sex with clients? There are plenty of fish in the sea. Find one you don’t represent.
If I concede it’s that difficult to find willing partners than my argument is justified from a standpoint of evolutionary biology?
No, my comment was facetious and certainly not targeted at you personally. My point, Puritan though I may be, is that this doesn’t foreclose the universe of sexual encounters. Just one very small bit fo the universe that is particularly subject to abuse. The rest of the universe is yours for the taking (within limits, as any good Puritan would agree).
The beauties never barter
Imagine being such a failure at life that your only opportunity for sex occurs when desperate people come into your office for help.
Sometimes I do. Oh, that not what you meant, is it?
Interesting though it is to debate the nuances of sex and ethics, the aspect of this that I find most interesting is one Scott put some emphasis on: whether or not the issue in question reguires a law.
Most people agree with Scott, I think, that the issue is at least partially one of trust. Anytime you have legislate matters of trust (or ethics, or character), I imagine a little nail getting hammered into the coffin of said trust (or ethics, or whatever). Once you take it into the realm of the legal, it takes on a whole ‘nother feel.
I’d far rather see the issue get called out in forums like this; to have it debated within the profession so as to develop a social sense of conscience and of how, and how strongly, one’s peers view it.
If the profession can generate its own sense of social propriety, such that laws are not needed, that seems far preferable to the alternative.
I’m a lawyer. I’m representing my fiancee in a case. Would such an ethical rule preclude that representation? Or require cessation of intimate relations while the representation is ongoing? I think such a rule would have to be carefully drafted.
I think there would have to be an exception for pre-existing relationships, though you might wonder whether representing your fiance is a great idea given the consequences of losing. After all, you may never have sex again. Oh wait, that’s marriage. Never mind.
I find your anecdote extremely hard to believe. Your argument smacks of the worst kind of paternalism — that men need to make special rules to protect delicate women from their own bad judgment.
The worst kind of paternalism? I wouldn’t say the worst. This isn’t about protecting women at all, but about clients. I realize that its unfashionable to concern oneself with ethics toward clients, but I’m old fashioned that way.
How is it not about protecting adult women from their own decisions? Rape is already illegal, isn’t it?
Abusing a position of trust means that it’s not their own decision, a choice made knowingly, voluntarily and intelligently. Rape is forcible. Abuse of a position of trust undermines the ability to make a free choice.
Since marriage places each partner in a position of trusting the other, why not make all sex inside of marriage illegal? After all, the relationship is one of trust and sex might be an abuse of that trust. It is in fact in a relationship based on trust that sex normally belongs. Sex among people who trust each other is the healthy kind of sex.
You’ve now reached the point of total irrationality. It’s time to stop.
Don’t blame me for the consequences of your argument.
Of course you’re to blame. It’s all about you. All of it. Whoever you are.
And sex between people who just need what the other person is offering for sex is not the healthy kind of sex. Seems fair enough to me.