How not to practice law: have sex with client's wife

Continuing our on-going list of things you should not do while practicing law, here is a report on two cases in different states reported on the same day last week involving attorneys having sex with their clients' wives.

In one of the cases, the South Carolina Supreme Court found that the circumstances came "dangerously close to an outright conflict of interest" holding that "Respondent's actions, at the very least, created a "significant risk" that his representation of Client could be compromised due to his personal interest and interaction with Wife. Indeed, that significant risk was realized in this case when Client objected to the relationship between Wife and Respondent, and Respondent ended the attorney/client relationship."

How this description of the case is not a per se conflict of interest is beyond me! The court's position shows its misunderstanding of the concept of a conflict of interest in the first place. For a court to find a conflict of interest it is not required that there be a certain "effect" or "harm" to the representation. The rules regarding conflicts of interest are there precisely to prevent a lawyer from finding himself in a situation where his representation of a client might be threatened by the lawyer's interest in, or duty to, someone or something else.

It seems obvious to me that the moment the attorney began his relationship with the client's wife, the representation of the client was in danger, and the lawyer was operating under a conflict. And this is just the "legal" analysis. Add to that the notion of the betrayal of the client's trust and it seems to me an anonymous admonition is a bad joke.

Interestingly, the court then goes on to hold that from now on a sexual relationship with the spouse of a current client will be considered per se violation of Rule 1.7 (on conflicts), "as it creates the significant risk that the representation of the client will be limited by the personal interests of the attorney."

If that's the case, I don't see why the court could not have held the same thing in this case and imposed a harsher sanction. The court made a point of saying the anonymous lawyer had always been "upstanding member of the bar" up to this point. I wonder who he is? Oh, yeah, I don't know because the order was anonymous! See the order here.

In contrast, in the other case, the Michigan Attorney Discipline Board suspended the attorney for three years while a dissenting opinion argued for disbarment. See the ruling here

In this case, the client was suspicious that his spouse was having an affair and sought his attorney's advice. The attorney, not surprisingly perhaps, did not tell the client it was him (the attorney) who was sleeping with the client's wife.

Eventually, the client discovered the affair and demanded a refund of the fees he had paid to the attorney. The attorney refused, "stating that he had worked on the case and had earned his fees" !! He also earned a suspension.

Thanks to the Legal Profession blog for the information and links.