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Let’s talk about sex. You may not think sex and law practice belong in the same sentence. If you’re logging 2,000 plus billable hours per year, sex and law practice may even seem mutually exclusive. But the New York Code of Professional Responsibility mentions “sex” or “sexual relations” eight times. In addition, sexual harassment is illegal. This column explains why you shouldn’t mix sex and law practice. What is “sex”? Do we really need to answer this question? The Code of Professional Responsibility thinks so. DR 5-111(A) provides that “sexual relations” means “sexual intercourse or the touching of an intimate part of another person for the purpose of sexual arousal, sexual gratification, or sexual abuse.” In other words, it’s not just Intercourse, Pa. SEX WITH CLIENTS Is sex with a client okay? The Code of Professional Responsibility didn’t say anything about sex with clients until 1993, when the courts added a new paragraph to DR 1-102 making it professional misconduct for a lawyer to begin a sexual relationship with a domestic relations client during the representation. Until 1999, only domestic relations lawyers were subject to the rule prohibiting sex with clients. In 1999, however, the courts added a new DR 5-111 entitled “Sexual Relations with Clients.” That rule continues the ban on initiating sexual relations with domestic relations clients but adds two new restrictions that apply to all lawyers. One new restriction, DR 5-111(B)(1), provides that a lawyer shall not “[r]equire or demand sexual relations with a client … as a condition of any professional representation.” Of course, most lawyers would never dream of requiring or demanding sex from a client, especially as a condition of legal representation. The provision is mainly designed to prohibit lawyers from accepting sex instead of cash from clients too poor to pay legal fees. The other new restriction applicable to all lawyers, DR 5-111(B)(2), provides that a lawyer shall not employ “coercion, intimidation, or undue influence in entering into sexual relations with a client.” This provision may see more action. The problem isn’t coercion — few lawyers will coerce clients into having sex. Rather, the problem will arise out of consensual sexual relations with clients. When a consensual sexual relationship with a client breaks off, the client may complain that the sex occurred only because the lawyer exercised “undue influence,” or even “intimidation.” In hindsight, the client may feel that she was under the lawyer’s spell, or that she got sexually involved with the lawyer only because she feared that the lawyer would stop providing adequate legal services if she resisted the lawyer’s advances. The client may have a point. As lawyers, we urge clients to “trust us” because we have only their best interests at heart and would never hurt them. We often develop immense power over our clients. Many clients are intimidated by our education, our confidence, and our status. Thus, even seemingly consensual sexual relations with clients carry tremendous risk. And under the Code, anything that goes much beyond a good-night kiss may enter the realm of “sexual relations.” New York is not alone. About a dozen other states, including California, Florida, Minnesota, North Carolina, Oregon, Washington State, and others, restrict sex with clients by rule. Pennsylvania has disapproved sex with clients in an ethics opinion. The Illinois Supreme Court suspended a lawyer for three years for having sex with a client — even though Illinois has no specific rule on the subject — because the court said that no lawyer could reasonably have considered sex with a client to be acceptable under the existing rules. (See In re Rinella, 677 N.E.2d 909 [Ill. 1997]). And more states are likely to adopt rules limiting sex with clients because on Aug. 7, the ABA House of Delegates tentatively approved a new Model Rule of Professional Conduct providing that a lawyer “shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.” CONFLICT OF INTEREST Even if the Code didn’t expressly restrict sex with clients, the conflict of interest rules probably would. See Horaist v. Doctor’s Hospital of Opelousas, 2001 WL 709269 (5th Cir. July 11, 2001) (“A sexual relationship with a client that arises during the course of the representation may create a conflict between the professional and personal interests of the lawyer and interfere with the lawyer’s professional judgment.”) In New York, DR 5-101(A) prohibits a lawyer from accepting or continuing a representation if the lawyer’s exercise of professional judgment will be or reasonably may be adversely affected by the lawyer’s personal interests. Sex with a client is likely to cloud the lawyer’s judgment, and a lawyer who is getting sex from a client may be inclined, consciously or subconsciously, to drag out the matter so he can see the client more often. Conversely, a lawyer who wants to end a sexual relationship with a client may be tempted to recommend a quick settlement in order to get the client off his back. (That might not be exactly the right metaphor.) And if the lawyer falls head over heels in love with the client, the lawyer’s professional objectivity may evaporate. A lawyer needs some distance from a client to give the client candid, honest advice. A lover may therefore have difficulty being a good lawyer. Some of you may be saying, “My firm mainly represents corporations. Who ever heard of having sex with a corporation?” DR 5-111 doesn’t address sex with corporate clients, but the ethics rules in some states do, and New York is likely to follow their approach. For example, Rule 1.8(k) of the Wisconsin Rules of Professional Conduct provides that when your firm’s client is an organization, then “client” means “any individual who oversees the representation and gives instructions to the lawyer on behalf of the organization.” If a sexually attractive in-house lawyer is working with you during your review of documents on one of those long out-of-town trips to respond to a subpoena or discovery request, be careful; she may be a “client.” SEX AROUND THE OFFICE What about sex around the office, with other lawyers or with secretaries, paralegals, or other members of the support staff? Is that ethical? Maybe so. It’s certainly less risky than sex with clients, and it doesn’t violate DR 5-111. But it may well violate DR 1-102(A)(6), which provides that a lawyer or law firm shall not “[u]nlawfully discriminate in the practice of law, including in hiring, promoting or otherwise determining conditions of employment.” Sexual harassment is a form of unlawful discrimination. There are two kinds of sexual harassment: quid pro quo, and “hostile environment.” Lawyers need to understand both kinds. Quid pro quo sexual harassment means, in essence, “If you give me sex, I’ll give you a promotion” (or a raise, or better assignments, or whatever), or “If you don’t sleep with me, I’ll fire you.” Most lawyers aren’t that crude, but even consensual sexual relationships with the lawyers or nonlawyers that you supervise or evaluate can lead to a lawsuit. If the relationship works out and you promote your paramour, those who don’t get promoted may claim sex discrimination. If the relationship doesn’t work out — especially if your subordinate breaks off the relationship — look out! If you are angry or hurt, you may start giving your former lover negative evaluations or undesirable assignments. The former lover may then file a quid pro quo suit against your law firm alleging that you stopped giving her favorable evaluations or assignments when she stopped giving you sex. How will your law firm evaluate you if you cause the firm to get sued? The other kind of sexual harassment, “hostile environment” sexual harassment, refers to working conditions that are sexually offensive. This can even happen without any touching. For example, the New York Law Journal reported last week that the law firm of Weitz & Luxenberg has agreed to pay $175,000 to settle a “hostile environment” lawsuit filed by a former female employee because an image of actress Pamela Anderson engaging in sex appeared on the employee’s computer screen. More often, hostile environment suits are based on unwanted advances by uncouth male lawyers. In Sier v. Jacobs, Persinger & Parker, 714 N.Y.S.2d 283 (1st Dep’t 2001), for example, a 39-year-old male partner made unwanted verbal and physical sexual advances toward a 24-year-old first-year associate at the firm. The associate was eventually told she would be terminated, and the partner told her that she should not worry about her situation because: “You’ll take care of me and I’ll take care of you.” The trial court awarded $250,000 in damages for emotional distress and $50,000 in punitive damages. (The 1st Department agreed that the partner’s conduct “clearly established a hostile work environment,” but remanded on damages issues.) Finally, looking for a moment through the other end of the telescope, if you are an associate at a law firm and are being subjected to sexual harassment, you don’t have to take it. Sexual harassment is unethical and illegal. THE BEST POLICY The best policy is, keep your love life separate from your law life. Lawyers are people. People like sex. But lawyers have to be more careful than most people. Starting a sexual relationship with a domestic relations client is absolutely forbidden. Starting a sexual relationship with any other client, individual or organizational, is fraught with risk. And fooling around with subordinates in the office, whether lawyers or nonlawyers, is a minefield. The best policy is to treat clients and subordinates like paintings in a museum: you can look, but don’t touch. Roy Simon is a professor at Hofstra University School of Law, where he teaches Lawyers’ Ethics and serves as director of Hofstra’s Institute for the Study of Legal Ethics.

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