Let’s face it, there is something essentially predatory about a lawyer having sex with a client.
And no apologies to those who may be hypersensitive about sexual stereotypes: the real problem is male attorneys sleeping with female clients.
Sure, there are exceptions, but the basic fact pattern involves a male attorney taking advantage of a vulnerable female client facing a divorce or criminal charges.
Whether it’s a true sex-for-services arrangement or something less sinister, it is wrong plain and simple.
Now, some states are still wrestling with the issue. For instance, members of the Texas state bar just recently rejected an ethics rule that would have prohibited sex with clients.
And covering the state court beat every day leaves me with the distinct impression that this ethical problem isn’t taken seriously enough by other state bar associations and state supreme courts.
Take a decision by the Florida Supreme Court yesterday
A referee found Jaime Roberto guilty of professional misconduct and placed him on probation for one year.
Roberto was admitted to the Florida Bar in 2006. A solo practitioner, Roberto crossed the line in January and February 2008.
The ethical charges stemmed from Roberto allegedly having sex with two female clients during those months. He represented the clients in separate and unrelated criminal matters.
According to the court, Roberto later admitted to sleeping with the clients. The referee found that Roberto never entered into a written fee agreement with either client and he never received any payment from them.
No, Roberto actually provided both clients with financial assistance from his own pocket.
Roberto helped one client obtain a business-purpose driver’s license, paying the licensing fee. When the client went to jail, Roberto deposited $130 into her commissary account.
Roberto allegedly gave the second client $250 to buy clothes and groceries. When she went to jail, Roberto deposited $60 into her commissary account.
The referee for some reason found that these weren’t the typical sex-for-services relationships, so she declined to find that Roberto violated Florida’s ethical rule that directly prohibits such conduct.
Instead, the referee simply decided that Roberto violated ethical rules that prohibit providing a client with financial assistance and using a client to solicit further business.
Given that Roberto was an inexperienced attorney, had fully cooperated in the disciplinary proceeding and — according to the referee — did not act with a dishonest or selfish motive, the referee recommended that the lawyer be placed on probation for one year.
The Florida Bar rightfully thought that Roberto was getting off easy, so it appealed to the Florida Supreme Court.
In particular, the Florida Bar was concerned that the referee decided that the Roberto hadn’t operated under a conflict of interest in violation of the state’s professional rules of conduct.
The Florida Supreme Court agreed that Roberto had violated the ethics rules in this regard.
“The record is clear that Roberto engaged in sexual relations with these clients during the time he represented them. Moreover, the referee’s factual findings in this case support the conclusion that Roberto’s sexual relationship with his clients impaired the exercise of his professional judgment, which in turn led to additional unethical conduct. …
“While Roberto did not trade legal services for sexual favors, his conduct undoubtedly gave the appearance of impropriety. Roberto never entered into a written fee agreement with either client, he never received any monetary fees from either client, and he repeatedly met both women at their homes or in restaurants to discuss their cases, rather than in a professional office setting,” the court said.
Given its finding that Roberto violated an additional ethical rule, the court decided that one year of probation was an insufficient penalty.
“In this case, any sanction less than a suspension that requires Respondent to prove rehabilitation would not be consistent with the seriousness of the rule violations found in this case,” the court said.
“Although the referee found that Roberto was an inexperienced lawyer, he should have known that it was improper to use his client to solicit business from other potential clients, even buying her a cell phone to assist with this impermissible scheme. Similarly, Roberto’s inexperience does not excuse the breach of ethics in providing financial assistance to clients outside of the scope of litigation. The ethical prohibition on this type of activity could not be more clear.” (Florida Bar v. Roberto)
So the court suspended Roberto for one year.
But is this really severe enough?
There are some lines that lawyers cross where disbarment should be the presumptive punishment.
Steal from clients?
Boom! You’re out!
Sleep with clients?
Boom! You’re out!
That lawyers often escape a professional death penalty for these kinds of fundamental transgressions is matter of shame for all members of the bar.
– Pat Murphy