SEX AND THE BAR: AN UPDATE ON MALPRACTICE LIABILITY
© 1998 National Legal Research Group, Inc.
Court decisions and ethics opinions in state after state have affirmed that while there may be no specific ethical rule forbidding a sexual relationship between a domestic relations attorney and his/her client, the more general rules against engaging in conduct that is prejudicial to the client and in conduct that adversely reflects on the attorney's ability to practice law encompass a prohibition against an intimate relationship between an attorney and his/her client. People v. Good, 893 P.2d 101 (Colo. 1995); People v. Bergner, 873 P.2d 726 (Colo. 1994); People v. Crossman, 850 P.2d 708 (Colo. 1993); In re Goldsborough, 654 A.2d 1285 (D.C. 1995); In re Tante, 264 Ga. 692, 453 S.E.2d 688 (1994); In re Rinella, 1997 WL 68573 (Ill. Feb. 20, 1997); Iowa Disciplinary Board v. Hill, 540 N.W.2d 43 (Iowa 1995); In re Howard, 912 S.W.2d 61 (Mo. 1995); In re Gould, 207 A.D.2d 98, 620 N.Y.S.2d 491 (1995); In re McClure, 204 A.D.2d 853, 612 N.Y.S.2d 265 (1994); Disciplinary Counsel v. DiPietro, 70 Ohio St. 3d 391, 643 N.E.2d 1145 (1995); In re DiSandro, 680 A.2d 73 (R.I. 1996); In re DiPippo, 678 A.2d 454 (R.I. 1996); In re Hawkins, 320 S.C. 57, 463 S.E.2d 92 (1995) (sex with client's wife); Musick v. Musick, 192 W. Va. 527, 453 S.E.2d 361 (1994); In re Kraemer, 200 Wis. 2d 547, 546 N.W.2d 186 (1996); Kansas Bar Association Ethics Advisory Opinion 94-13 (1995); Oklahoma Bar Association Legal Ethics Opinion 308 (1994); Legal Ethics Committee of the Oregon State Bar Opinion 1995-140 (1995).
Moreover, more states have adopted specific rules prohibiting a sexual relationship between an attorney and his/her client. Fla. Sup. Ct. R. 4-8.4(i) (adopted 1995); Minn. Sup. Ct. R. 1.8(k) (adopted 1995); Or. Code of Professional Responsibility DR 5-110 (adopted 1995); Wis. Sup. Ct. R. 20:1.8(k) (adopted 1995). See generally Howard W. Brill, Sex and the Client: Ten Reasons to Say "No!", 33 Santa Clara L. Rev. 651 (1995); Margit Livingston, When Libido Subverts Credo: Regulation of Attorney-Client Sexual Relations, 62 Fordham L. Rev. 5 (1993); Annotation, Sexual Misconduct as Ground for Disciplining Attorney or Judge, 43 A.L.R.4th 1062 (1986 & Supp. 1996).
While there is now no question that a sexual relationship between an attorney and his/her client is an ethical violation, the question remains open as to whether the same conduct gives rise to an attorney malpractice action. See generally 2 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice 14.20 (4th ed. 1996).
A number of cases have sought to address the question, with varying results. The most recent case is Vallinoto v. DiSandro, 688 A.2d 830 (R.I. 1997). In that case, a domestic relations client, Maria Del Rosario Vallinoto, sued her former attorney, Edmond A. DiSandro, and his law firm for legal malpractice, intentional infliction of emotional distress, battery, deceit, and negligence. She alleged that during the course of the attorney's representation of her in her divorce she was compelled to comply with the attorney's demands for sex, fearing that his representation of her would be compromised if she refused. A jury found in favor of the plaintiff, and the attorney appealed.
The Supreme Court of Rhode Island reversed and remanded. The evidence showed that DiSandro's representation of Vallinoto was well performed and successful: He increased child support from $30 per week to $200 per week; Vallinoto was awarded custody of her daughter; Vallinoto was awarded 60% of the marital estate, as well as several valuable paintings and heirlooms; and Vallinoto was awarded attorney's fees. Vallinoto could not prove the essential elements of malpractice that she had suffered actual damages resulting from the attorney's breach of duty to represent the client competently.
A very strong dissent stated that the jury was entitled to conclude that at the time the attorney and his client began their sexual relationship, i.e., when the client was in the midst of divorce proceedings, the client was ill-equipped "to fend off the sexual rapacity and fraudulent cunning of her own lupine lawyer-turned-Lothario." Id. at 847. Thus, the attorney breached his duty to his client, and this breach was actionable. Other cases have reached the same conclusion. In Tante v. Herring, 264 Ga. 694, 453 S.E.2d 686 (1994), the Herrings retained Tante to pursue Social Security disability benefits for Mrs. Herring. Tante appeared before the Social Security Administration and an administrative law judge and was ultimately successful in obtaining the benefits requested. During the course of representation, Tante had an affair with Mrs. Herring.
Mrs. Herring then sued Tante for legal malpractice, breach of fiduciary duty, and breach of contract, all relating to Tante's adulterous relationship with Mrs. Herring. In refusing to allow the claim to proceed, the Supreme Court of Georgia stated:
There is no evidence that Tante's conduct of which the Herrings complain had any effect on his performance of legal services under this agreement with the Herrings. Indeed, Tante obtained for Mrs. Herring precisely the results for which he was retained, the recovery of Social Security benefits.
453 S.E.2d at 687. Thus, the Herrings could not proceed on a claim for malpractice.
The Tante court continued, however, by stating that the Herrings did state a claim for damages for breach of fiduciary duty. This claim is viable, the court stated, because Tante misused, to his own advantage, confidential information contained in medical and psychological reports concerning Mrs. Herring. Moreover, the Herrings also may have stated a claim against Tante for assault and battery, intentional infliction of emotional distress, or negligent transmission of an infectious disease. See alsoMerenda v. Superior Court, 3 Cal. App. 4th 1, 4 Cal. Rptr. 2d 87 (1992) (client stated cause of action against attorney with whom she had an affair for fraud and deceit when she became pregnant after attorney assured her she could not); Owen v. Pringle, 621 So. 2d 668 (Miss. 1993) (when plaintiff's attorney became sexually involved with plaintiff's wife, the attorney's breach of his fiduciary duty was actionable even though he did not mishandle the negligence case on behalf of the plaintiff); Ott v. Smith, 413 So. 2d 1129 (Ala. 1982) (attorney could breach fiduciary duty to client by having an affair with opposing party); Logan v. Hyatt Legal Plans, 874 S.W.2d 548 (Mo. Ct. App. 1994) (attorney might be liable under theory of respondeat superior for conduct of secretary having affair with firm's client's estranged husband); Nobes v. Earhart, 769 S.W.2d 868 (Tenn. Ct. App. 1988) (female attorney breached duty to female divorce client by having an affair with client's husband during representation).
Also, quite interestingly, the court did not foreclose the possibility that legal malpractice could occur where an attorney has sex with his/her client during the course of representation:
It is conceivable that Tante's improper conduct might have affected his performance of legal services in another context, e.g., had he been retained to represent Mrs. Herring in a divorce or child custody action.
Tante v. Herring, 453 S.E.2d at 687 n.1 (emphasis added). Thus, the court was receptive to the idea that a sexual relationship that compromises the client's legal position can, in fact, constitute malpractice. Such would clearly be the case where an attorney represents a divorce client. It is therefore quite possible that the Tante court would have found malpractice in the Vallinoto case.
This position, however, was not accepted in Suppressed v. Suppressed, 206 Ill. App. 3d 918, 565 N.E.2d 101 (1990). In that case, the client alleged a breach of fiduciary duty arising from the attorney's alleged coercion and seduction of her during her divorce case. The court concluded that the client had failed to state a claim for legal malpractice or breach of fiduciary duty because the breach of duty, i.e., the coercive sex, must be clearly linked to deficiencies in the attorney's representation. In other words, in order to state a claim, the client must show that the legal representation of the client was, in fact, adversely affected by the sexual relationship. Moreover, the client had failed to prove any damages stemming from a loss suffered in the client's underlying legal action or that the client's legal position was somehow compromised by the breach of duty alleged. Emotional damage alone was insufficient to sustain the malpractice action.
The high standard for legal malpractice set out in Vallinoto v. DiSandro, that the sexual relationship actually affect the quality of representation, was found in McDaniel v. Gile, 230 Cal. App. 3d 363, 281 Cal. Rptr. 242 (1991). In that case, the attorney involved withheld legal services, gave substandard legal service to the client, and delayed rendering legal services whenever his requests for sexual favors went unanswered. As a result, the client lost her one-half interest in a pension plan and was forced to settle her divorce case without the advice of her attorney. The client's position clearly suffered as a result of her refusal to comply with her attorney's requests for sex. See also In re Pump, 120 Wis. 2d 422, 355 N.W.2d 248 (1984) (although a disciplinary proceeding, the opinion noted that the attorney's liability insurer had paid to compromise a claim for legal malpractice where attorney had sex with client).
It is clear, therefore, that when an attorney engages in a sexual relationship with his or her client, the attorney is not only engaging in unethical behavior, the attorney is also opening up himself or herself to civil liability for malpractice, breach of fiduciary duty, fraud, deceit, and battery. The simple solution is to refrain from any intimate relationship with a client during representation.
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