Fatal attraction

THE US IS CRACKING DOWN ON LAWYERS WHOSE professional judgement MAY BE CLOUDED BY AFFECTION FOR PARTICULAR CLIENTS.

yet IN THE UK SOLICITORS ARE TRUSTED TO behave, MICHAEL GERRARD finds

The solicitor/client relationship has always been a tricky one - and usually problems refer to a client's unhappiness with a bill, rather than matters literally closer to home.

Sexual relationships between solicitors and professional contacts undoubtedly do occur, but there are no overt Law Society conduct rules banning the practice.

The issue has resurfaced after recent allegations that Yorkshire solicitor Julie Allott was having an affair with a prosecution witness in a murder trial at which she was acting for the defendant (see [2002] Gazette, 20 June, 3).

Ms Allott says she was not having an intimate relationship at the time of the trial, and that the witness was far from crucial, as has been claimed in the newspapers.

Far more common, though, is the solicitor having a relationship with a client.

In terms of ethical considerations, such an arrangement might arguably compromise solicitors' ability to give independent and impartial advice, or alternatively give them the opportunity to take advantage of vulnerable clients and skew matters in their own favour.

As employment specialist Alison Wallace, a partner at M4 corridor firm Morgan Cole, says, sometimes such matters will influence how clients choose their legal counsel.

She knew of a successful businesswoman who changed her solicitor after finding that a male lawyer's interest in her was becoming unsettling.

'The client felt that his conduct was both unprofessional and could have led to her getting poor advice, so from then on she felt more comfortable consulting women solicitors.'

Likewise, there is a possibility that an over-amorous client might make life uneasy for his or her solicitor.

In this situation, Ms Wallace says the sensible solicitor will talk with colleagues about the matter and if necessary transfer the case to one of them.

Nigel Shepherd, a partner at Addleshaw Booth and Co, Manchester, and a member of the national committee of the Solicitors' Family Law Association, admits that relationship do happen and sometimes with nasty effects.

A well-known example is the court case in which a female client's husband announced that she was sleeping with her lawyer.

He says: 'As a family lawyer you have to be aware that people who are seeing you will often be in a emotionally distressed/ vulnerable condition.

'The SFLA trains members to recognise the signs of clients transferring their emotions to them and vice versa.

My view is that getting into a relationship in these circumstances one should be extremely aware of the dangers.'

Mr Shepherd adds that however a relationship starts, a solicitor should immediately stop acting for that person in a professional capacity, as it could cloud professional judgement.

Though solicitors appear largely edgy about talking about this subject, many appear relaxed about the issue, at least among themselves.

As one solicitor points out: 'A senior partner at a City firm once told me that if there were a ban on sex between his colleagues and clients, then there would be no clients.'

However, this is still an issue with some profile.

Unsurprisingly, the US is most preoccupied with this subject, not just because of the fictional exploits of divorce lawyer Arnie Becker in 'LA Law', who sized up clients for their potential in bed before checking whether they could afford his fees.

Last year, the American Bar Association (ABA) was sufficiently concerned that its ruling House of Delegates approved a conduct rule that states: 'A lawyer shall not have sexual relationships with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.'

Notes to the rule change explain: 'The relationship between lawyer and client is a fiduciary one in which the lawyer occupies the highest position of trust and confidence.

The relationship is almost always unequal; thus, a sexual relationship between lawyer and client can involve unfair exploitation of the lawyer's fiduciary role.'

The rule applies regardless of whether the relationship is consensual and regardless of the absence of prejudice to the client, because of the significant danger of harm to client interests and because the client's own emotional involvement renders it unlikely that the client could give adequate informed consent.

It also prohibits an organisation's in-house or external lawyers from having a relationship with a member of that organisation who supervises, directs or regularly consults with the lawyer on legal matters.

But it appears that the Law Society is not about to follow this lead.

Its standards and guidance committee - now the standards board - investigated the issue a few years ago and found insufficient reason to introduce such a rule.

Ed Nally, the board's present chairman and a partner at Bolton-based Fieldings Porter, says little has changed to alter that view.

He explains that the US situation is different because of much stricter barriers there between a lawyer's private and personal conduct.

He says: 'The professional conduct rules are directed at the solicitor's relations in a professional capacity, so the Law Society has to draw a line between professional conduct and private behaviour.

'The reason we tread carefully on a general ban is that at the end of the day a solicitor is a private individual and entitled to private relationships.'

Mr Nally argues that new sexual conduct rules are unnecessary, as any untoward behaviour by a solicitor is already covered by more than one of the existing rules.

These already outlaw a solicitor taking advantage of a vulnerable client and bring censure if lawyers find that their personal relationships are clouding their ability to provide independent advice.

Quentin Poole, managing partner of leading Birmingham firm Wragge & Co, agrees with the board's stance.

He knows of occasions when lawyers have become involved with clients, but maintains that this is not necessarily a cause for alarm.

He says: 'This is not an issue if solicitors conduct themselves properly and with decorum.

'But if there is going to be any grey area, it is likely to come not in corporate/commercial law firms like ours, but with those dealing with private client, family and matrimonial matters.'

However, the ABA decided that although 'most egregious behaviour of lawyers can be addressed through other rules', those rules may not be sufficient.

A report accompanying the proposal to the House of Delegates explained: 'Given the number of complaints of lawyer sexual misconduct that have been filed, the [ABA's ethics] commission believes that having a specific rule has the advantage not only of alerting lawyers more effectively to the dangers of sexual relationships with clients but also of alerting clients that the lawyer may have violated ethical obligations in engaging in such conduct.'

Undoubtedly, the conduct of some divorce lawyers has been a factor in the ABA's decision to introduce its conduct ruling, but beyond this it appears the professional body has found itself responding to a growing national mood on this issue.

The House of Delegates debate was a feisty one, and the rule change only got through by the thinnest of margins.

Professor Nancy Moore, a legal academic at Boston University, is a former member of the ABA ethics commission.

She says that before last summer's decision, the authorities in ten states, including California, Minnesota, Wisconsin and North Carolina, had already introduced legislation banning lawyer/client sexual relationships.

In 1999, New York adopted conduct rules banning lawyers from making sexual relations a condition of representation.

Sex with clients was previously only banned where it clouded professional judgement or represented an abuse of position, but it was considered necessary to spell out specific circumstances where this could occur.

This reflects the principal concern - the possibility of female clients being coerced into sexual activity by unscrupulous attorneys.

Professor Moore says the ABA's actions - which are only persuasive on individual states - were aimed at providing a general template for other states considering the issue.

She says: 'A number of federal and state commissions have been looking at the status of women within the court system, and it was felt that the lack of an explicit mention of sexual relations within the existing rules was stopping clients from bringing it up.

The new specific rule now makes it easier to deal with lawyers.'

As Professor Moore is quick to point out, such tales of sexual intrigue might gain press attention, but as in Britain the subject currently throws up only a small number of cases.

However, she adds that now the ruling is in place, the number of reported incidents could grow.

Back on this side of the Atlantic, some regard the US initiative to be something of a hysterical reaction.

Wragge's Mr Poole says: 'The US has rightly been seen to lead the way when it has come to feminist issues, but at times they can appear to go over the top and appear a little paranoid.'

The consensus appears to be that solicitors are deemed by the Law Society to have the necessary sense of professionalism and maturity to handle responsibly affairs of the heart that originate in the consultation room.

In addition, it is maintained that sufficient conduct rules exist to handle miscreants.

That said, should complaints take off in the US, there can be no guarantee that - as with many other aspects of the legal profession - US practices might not eventually be transferred over here.

Michael Gerrard is a freelance journalist