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A proposed disciplinary rule barring lawyers from having sex with their clients isn’t likely to be submitted to State Bar of Texas members until after the 2003 session of the Legislature, participants in an April 15 program at the University of Texas School of Law were told. The proposed addition to the Texas Disciplinary Rules of Professional Conduct probably won’t be put to a vote until state lawmakers have considered a recommendation to repeal the 51 percent rule, Lubbock appellate attorney Ralph Brock said. The State Bar Act currently requires at least 51 percent of the Bar membership to vote for a referendum to be counted. As proposed, Rule 5.07 would prohibit lawyers from having a sexual relationship with clients under certain circumstances. The rule would specifically ban quid pro quo behavior, barring a lawyer from making an agreement for a sexual relationship with any person a condition of representation. Another provision would prohibit a lawyer from beginning a sexual relationship that exploits a client’s emotional dependency on his or her legal adviser. The provision wouldn’t apply to a lawyer and client who are married to each other or in a consensual sexual relationship. Legal ethics experts participating in panel discussions for the April 15 event disagreed about the need for such a rule. Teresa Collett, a South Texas College of Law professor, said the Bar can discipline lawyers under disciplinary Rule 2.01, which requires a lawyer to provide independent advice, and Rule 1.06, which prohibits conflicts of interest. Collett said there are perils in trying to draft a rule addressing sexual relationships. For example, sometimes it doesn’t pay to be too specific. A California rule that specifically prohibits a lawyer from having physical contact with a client may have prevented the Bar in that state from disciplining a lawyer for exposing himself to a female client, she said. The rule was so specific that because the lawyer had not actually touched his client, he had not violated a disciplinary rule. Linda Mischler, a former professor at the Roger Williams University School of Law in Bristol, R.I., said the overwhelming number of lawyer-client sexual relationships involve male lawyers with female clients. She said the rationale for rules to ban sex with clients boils down to two assumptions — that the emotional intimacy assumed to go along with a sexual relationship impairs an attorney’s decision-making, and the client is so vulnerable that she can’t make decisions about her sexual relationships. “We’re saying a client, just because she is a client, is so incapacitated she can’t make a decision about her sex life,” Mischler said, adding that she doesn’t think that the assumption can be made. “What I’m seeing in family law is vulnerability,” said Ellen Elkins Grimes, a Houston family law practitioner. Clients in those situations often have gone through emotional turmoil and are depending on lawyers to make crucial decisions, she said. Grimes said it’s an attorney’s duty to find out if there is a chance for reconciliation when a couple has separated. An attorney having a sexual relationship with a client going through a divorce may not want the woman to reconcile with her husband, she added. Mischler said she believes the lawyer-client relationship is different than the relationship between a psychoanalyst and patient, a teacher and student or a guard and prisoner, which involve more control. She suggested more research be done before sexual relationships between lawyers and clients are regulated. But a majority of the panelists said rules addressing the sexual relationships of lawyers and clients are needed. “It seems to me there ought to be a strong presumption that a sexual relationship between an attorney and client is exploitative,” said Stephen Pepper, a professor at the University of Denver College of Law. Catherine Stone, a justice on San Antonio’s 4th Court of Appeals, said a rule prohibiting lawyer-client sexual relations is needed to protect consumers and prevent the appearance of impropriety. Robert Schuwerk, a professor at the University of Houston Law Center, said banning quid pro quo behavior would be “a prudent first step” and would benefit lawyers as well as their clients. “One of the benefits of a rule is that a lawyer can read and understand, ‘I can’t do that,’” Schuwerk said. Walter Steele, emeritus professor at the Southern Methodist University Dedman School of Law, said he finds it embarrassing that lawyers don’t have a rule prohibiting sexual relationships with clients when other professions do. “Here we are rule-makers, and we don’t have a rule,” he said. “Dietitians are prohibited from having sexual relations, but lawyers aren’t, at least not in Texas,” Brock said. The legal profession is “on the verge of becoming the laughingstock,” he said. Several panelists said they would prefer a “per se” rule that prohibits sexual relations between a lawyer and a client unless they are married. An earlier version of the rule would have applied such a prohibition, but it was tabled by the Bar board in January 2001. Schuwerk said the rule as proposed needs to be “tweaked” one more time. One of the elements missing from the proposal is a prohibition against creating a significant risk of prejudicing or damaging the client or the client’s interest, he said. The panel discussions were put on by the Review of Litigation at the UT law school.

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