Why you shouldn’t sleep with your clients

January 20, 2008 § Leave a comment

News that Bay Street law firm Borden Ladner Gervais, and partner George Hunter are being sued by Mr. Hunter’s former client over a “romantic/sexual” affair he had with her in 2003 raises, once again, the thorny ethical issue of whether lawyers should be allowed to maintain this type of relationship with a client.  Mr. Hunter plead guilty to charges of professional misconduct in February 2007, and was suspended from practice for 60 days.

What makes this case interesting is that at the same time he carried on the affair over which he is now being sued, Mr. Hunter sat on a disciplinary panel for the Law Society of Upper Canada that also dealt with allegations of sexual involvement between another Ontario lawyer and that lawyer’s client.  That lawyer was disbarred.

Now, I am not privy to the particular facts before each committee.  There may well be very good reason for the vastly disparate treatments.  Indeed, the news reports indicate that the disbarment case is still before the courts.

The case did, however remind me of this paper that I wrote back in 1995-96, when I was in my third year in law school at the University of Alberta.  This paper is over 10 years old, and the writing is that of a third year law student so it isn’t my to my standard for an academic publication, and the authorities are not up to date.

The basic premise, however, stands.  Back then, I argued that the Canadian Bar Association ought to adopt a specific rule prohibiting sexual involvement between lawyers and their clients.

At the time, neither the Canadian Bar Associations Rules of Professional Conduct, nor the American Bar Association Model Rules of Professional Responsibility contained specific rules.  In 2001, the American Bar Association adopted Rule 1.8(j), which provides 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.

The last time the Canadian Bar Association debated the question was in 2004, at a divisive meeting where the majority shouted down the recommendations of its Standing Committee on Ethics and Professional Issues, calling them “paternalistic”.  The Committee offered 2 options: the first was a rule based on the American Bar Association’s approach, while the second was based on the approach taken by the Nova Scotia Barristers’ Society.

Nova Scotia was the first Canadian province to institute a rule dealing with sexual relations between lawyer and client.  Nova Scotia’s rule 7.5 from the Barristers’ Society Legal Ethics Handbook contains the standard wording that prohibits a lawyer from acting in a conflict of interest.  The commentary to the rule provides as follows:

Sexual Relations with Client
7.5  Rule 7(a) is intended to prohibit, inter alia, sexual exploitation by a lawyer in the course of a professional representation.  Often, based upon the nature of the underlying representation, a client exhibits vulnerability.  The lawyer must not take advantage of that vulnerability.  The solicitor-client relationship frequently creates an imbalance of power in favour of the lawyer where a client exhibits dependence upon the lawyer.  A lawyer owes the utmost duty of good faith to the client.  The relationship between a lawyer and client is a fiduciary relationship of the very highest character and all dealings between a lawyer and client that are beneficial to the lawyer will be closely scrutinized with the utmost strictness.  Where lawyers exercise undue influence over clients to take unfair advantage of clients, discipline is appropriate.  In all matters, a member is advised to keep clients’ interests paramount in the course of the member’s representation. [footnotes omitted]

This is substantially the same approach taken by Ontario and British Columbia.  The remaining Canadian provinces do not deal have a rule that specifically addresses this topic.

For all the allegations of paternalism, the approach taken by law societies of Nova Scotia, Ontario and British Columbia remains permissive, leaving it open to a lawyer facing disciplinary proceedings to argue that the relationship was not exploitive.

The difficulty with this approach is that it necessitates an inquiry by the disciplinary panel into the nature of the relationship and the dynamic that existed between the lawyer and client both in their professional relationship and in the romantic one.  This inquiry detracts from the primary issue – the lawyer’s conduct.  This is intrusive, and will tend to discourage clients from reporting inappropriate conduct by their lawyers.  This leaves the impression of an opaque disciplinary regime that protects its own.  In the end, the profession pays the price with the erosion of the public’s trust.

In addition, as my paper argued back in 1996-1997, the lack of a specific prohibition leads to uneven disciplinary results, as exemplified in the Hunter case.

Historically, the professions have excluded all vocations except the clergy, medicine and the law, yet the medical and clerical professions have not objected to far more prohibitive restrictions than even the approach taken by the American Bar Association.

In the medical profession, all jurisdictions strictly prohibit sexual relationships between doctor and patient.  Indeed, this proscription is seen even in the Hippocratic Oath.

The Ethics Manual of the American College of Physicians is explicit:

Issues of dependency, trust, and transference and inequalities of power lead to increased vulnerability on the part of the patient and require that a physician not engage in a sexual relationship with a patient. It is unethical for a physician to become sexually involved with a current patient even if the patient initiates or consents to the contact.

Even sexual involvement between physicians and former patients raises concern. The impact of the patient-physician relationship may be viewed very differently by physicians and former patients, and either party may underestimate the influence of the past professional relationship. Many former patients continue to feel dependency and transference toward their physicians long after the professional relationship has ended. The intense trust often established between physician and patient may amplify the patient’s vulnerability in a subsequent sexual relationship. A sexual relationship with a former patient is unethical if the physician “uses or exploits the trust, knowledge, emotions or influence derived from the previous professional relationship”. Because it may be difficult for the physician to judge the impact of the previous professional relationship, the physician should consult with a colleague or other professional before becoming sexually involved with a former patient. [footnotes omitted]

While Canadian Medical Association’s Code of Ethics is somewhat vague, all of the provincial Colleges of Physicians and Surgeons contain prohibitions not unlike that seen in the Policies and Guidelines of the College of Physicians and Surgeons of Nova Scotia:

The therapeutic relationship is not to be used to further the physician’s own needs, nor is it ever appropriate for the physician to attempt to meet a patient’s sexual needs. Sexualizing the physician-patient relationship has no therapeutic value. Patient consent is never an acceptable rationalization. Even when the patient has made sexual advances, it is the physician’s responsibility to reassert the appropriate boundaries. Because the physician holds the more powerful position in the relationship, the physician must set and control the limits.

Similar proscriptions are seen in the ethical codes of all medical disciplines.

The clergy are well known for prohibiting sexual contact between clients and pastors, as can be seen in the code of ethics for both the American Association of Pastoral Counselors and the Canadian Association of Pastoral Counselors.

It might be argued that many of the lawyer’s clients are not in as vulnerable a position as a doctor’s patients or a clergyman’s parishioners.  While that may be true in certain circumstances, what must be at all times at the forefront of a lawyer’s mind when conducting the affairs of his or her clients are the client’s best interests.

Proper legal representation requires the exercise of clear and dispassionate judgment.  That judgment necessarily becomes clouded when dealing with close personal relations.  Even the somewhat vaguely worded proscription in the Canadian Medical Association’s Code of Ethics requires that physicians refrain from treating themselves and members of their immediate families, except in emergencies or when no other care is available.

Members of the legal profession suffer from the same human frailties.

The approach taken by the American Bar Association strikes an appropriate balance of the particular nature of legal practice and the human frailties that are at play in all professional relationships.  Members of the legal profession in Canada would be well served by adopting a similar rule.

See also:
National Post – Saturday, January 05, 2008

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