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Volume 19, Number 7
October/November 2002

SEX WITH A CLIENT: ALWAYS A VIOLATION?

When It Comes to Sex with a Client, Whom Do You Trust: Nanny or the ABA?

Lawrence J. Fox

Heather, by 30 a girl should be married."
"Nanny, aren't you proud of me?"
"And she should have children! Absolutely, by 30 she should have children. Besides, I should be a great-nanny already."
"You are a great nanny. But you're overlooking everything I've accomplished."
"Sure, sure. NYU. Cornell. Fancy-shmancy law firm, Lincoln & Washington, whatever. I know all about it. I've got lots to brag about. But it isn't about what I think. It's about your life, which you're wasting. Marriage is a wonderful thing!"
"I'm not against marriage, Nanny…"
"You work seven days a week. If I can't sleep, I can call you, 11:30 already, you're still at the office. Guess what? I shouldn't be able to call you that late! I should be leaving you alone."
"I want to make partner, Nanny. It's my priority. After that…"
"After that nothing! You'll work less when you're a partner? With your schedule, you'll never meet somebody! I told your mother, you're too smart for your own good."
"You're the smart one."
"So if you think I'm so smart, how come you won't listen to me?"

* * *

"I think we've accomplished all we can do tonight," Bryce Chambers, the head of Heather's practice group, announced to the crowded conference room. A heavy cloud of stress hung in the air. Outside, the cold light of dawn was starting to creep over the city skyline.
"Ten more minutes and it won't be 'tonight' anymore," Heather muttered under her breath.
"It's only thanks to you that we finished this early," Carl Susskind offered encouragingly. He was sitting next to her and leaned close enough to whisper. "So thank you, Heather, from Banque Industrial. Any time we can save a few billable hours-especially Cavendish & Wellington hours-we are quite pleased."
Then-and she might have been mistaken, but-it looked like he winked at her. Winked at her? Nah. He was a client. He was just being nice.
"Keep your voice down, Carl," she whispered back. "I'll be arrested by the Billable Hours Police if they hear you. Less than 250 hours a month and they put you in the stockade."
"That doesn't leave much time for a life," Carl opined.
"Only if you can bill your time on the treadmill. Or sleeping." She got up to walk to the elevator lobby and he followed her, as natural as could be. Maybe she'd imagined the wink.
"I don't suppose you ever find the time for a nonbillable dinner?" Carl asked, blushing ever so slightly and kicking the floor. Heather hesitated.
"You can say no," he backpedaled.
"Oh, it's not that. I'd like to say yes. But I've got this deal, and an IPO, and…" She trailed off, hating herself for fumbling. The elevator arrived and Carl armed it open.
"Well, you must eat?"
"Oh, sure. At the Cavendish cafeteria. It's open 20 hours a day. Pretty depressing, huh? We could share a romantic pair of egg salad sandwiches." She instantly wanted to suck the word "romantic" back in. How presumptuous! How inappropriate! Here she was, 30 years old, and she still hadn't learned not to stick her foot in her mouth. Talk about depressing.
Luckily, Carl seemed encouraged by it.
"I hate egg salad," Carl said. "I've got a better idea. Next Saturday night, 9 p.m., we'll go to Aquavit. It's right across from your office building. You can leave for an hour and be right back at your desk before anyone notices you're gone. Can I make it any easier than that?"
No, she thought. It's almost too easy. "That sounds perfect," she said, already nervous about what to wear. "I don't promise to be the best company, but…"
"Just try" were his parting words, as the elevator doors drew closed.

* * *

"So, your mother tells me you're dating someone."
"If you count three dates in five weeks as dating."
"He's dating someone else?"
"Nanny, no. I'm just so busy that I haven't had time for more than that."
"So, he's nice?"
"Yes, and handsome; he went to Princeton."
"Has he ever been married?"
"What is this, the third degree? No Nanny, he's never been married."
There was a long pause. "Ask it, Nanny."
"Okay. Okay. Heather, is he Jewish?"
"Yes, Nanny, he's Jewish."
"So you think you'll marry him?"
"Nanny, we haven't had a fourth date yet."
"Sweetheart, here's the thing: If you married him, you could get to see him!"

* * *

"What's this?" Heather shrieked, to no one in particular. She threw the complaint down on her desk, then picked it back up and raced out the door and down the hall into the office of Henry Sill, the firm's resident ethics guru and wild-haired, bow-tied eccentric.
"What do you have to say about this?" Heather launched the complaint in Henry's direction. He ducked to avoid being beaned in the head.
"I don't know," he said calmly, trying not to upset her further. "I haven't read it yet."
"The bar has started proceedings against me for, and I quote, 'having sex with a client.'"
"Well, is it true?"
"Is what true?"
"Did you have sex with a client?"
Heather wanted to crawl under the carpet. She wanted to throw one of Henry's stupid duck decoys at the wall. Instead, she took a deep breath and summoned up her best nonchalant, isn't-this-hilarious Katharine Hepburn voice.
"All our clients are companies, Henry. I can't have sex with a corporate entity." But it didn't come out sounding nonchalant. It sounded flippant, and, worse, it sounded guilty.
Still, Henry was diplomatic. "Any client representatives?" he probed gently.
"Let's put it this way. I have been seeing Carl Susskind of Banque Industrial outside the office in social situations for about two months." That sounded like double-speak, and she could tell that Henry saw right through it. "All right. All right. We've been dating," she admitted lamely.
"Was that before you started working for the bank?" Henry asked hopefully.
"Why? Does it matter?"
"Well, the new ABA rule on sex with clients says that if the sex came before the representation, it's okay."
"And otherwise?"
"It's prohibited."
"Prohibited? This is a travesty! My only chance at a social life and the ABA says it's unethical. Why is it their decision to make?"
"That's the rule. No other exceptions."
"Okay," she said, trying to sound logical and professional. "I know there must be situations where a lawyer could take advantage of a client. Clients can be vulnerable. Sex with a client could raise all kinds of problems with regard to confidentiality and conflicts. But Carl and me-if anyone's got the power, it's Carl! He's the one who hired our firm!"
"The rules are the rules, Heather. And before the rule was passed, many people argued, obviously in vain, that there should be no rule because a fair rule would have too many exceptions. The ABA already had an excellent opinion that warned lawyers when sex with clients could amount to an ethical violation.1 But the ABA couldn't leave well enough alone. So PC. Once that Ethics 2000 Commission proposed the new rule, the ABA delegates were scared to death the headlines would read 'ABA Endorses Sex with Clients.' So they decorated the Model Rule Christmas tree with this stupid rule that makes no distinction between the benign and the unethical."
"What should I do now?"
"Let me worry about the bar. Maybe we can get you a private reprimand. As for you, you'd better worry about which of your backstabbing colleagues turned you in. Imagine using an ethics rule to knock one of your competitors out of the partnership chase! What the hell was the ABA thinking?"
"I don't know, but I'll tell you this much: There's something wrong when the ABA says I should be disciplined and my Nanny congratulates me for taking her advice-for the exact same conduct!"

Notes
1. See ABA Formal Op. 92-364. The duty of candor requires the author to admit he was also the principal author of this opinion. Cf. ABA MODEL RULES OF PROF'L CONDUCT R. 3.3.

Lawrence J. Fox is with Drinker Biddle & Reath in Philadelphia, Pennsylvania.