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Sex with clients: Echoes of the “fee couch” audible in attorney’s reprimand

By: David Donovan//April 18, 2018//

Sex with clients: Echoes of the “fee couch” audible in attorney’s reprimand

By: David Donovan//April 18, 2018//

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Once upon a time, the proclivity of male attorneys to make aggressive sexual advances against female clients was so pervasive that it garnered a name—the “fee couch,” implying that cash was not the only currency that such lawyers were willing to accept in exchange for legal services.

Fortunately, those days are mostly in the past. But not entirely, it seems. In March the South Carolina Supreme Court disciplined Hartsville attorney John Bledsoe, who told a client he was representing in a divorce and custody action that he was interested in a sexual relationship with her and asked her to show him her breasts. The client did so, “but felt ashamed and humiliated,” the Supreme Court said.

Bledsoe was publicly reprimanded for his conduct.

South Carolina’s Rules of Professional Conduct do not explicitly bar sexual relationships with clients. Rather, Rule 1.8(m) states that a lawyer shall not have sexual relations with a client “when the client is in a vulnerable condition or is otherwise subject to the control or undue influence of the lawyer, when such relations could have a harmful or prejudicial effect upon the interests of the client, or when sexual relations might adversely effect [sic] the lawyer’s representation of the client.” The prohibition is part of a broader rule governing conflicts of interest with current clients.

The court’s reprimand of Bledsoe notes that he and the client did not engage in a sexual relationship—which is only to say that the client declined his invitation to commence one, and even then defines the term somewhat narrowly. The court declined to say whether the existence of such a relationship would have had any effect on appropriate level of discipline. But if so, that would imply the existence of a somewhat awkward dynamic where a client’s refusal of sexual advances would be a mitigating factor in a disciplinary analysis.

Harvey Watson of Ballard & Watson in West Columbia represents attorneys in such ethical and licensing matters. (The firm represents South Carolina Lawyers Weekly in an unrelated legal matter.) Watson expressed the view that every client who engages a lawyer is essentially in a vulnerable position.

“I think the courts have appropriately interpreted [Rule 1.8(m)] as a bright-line rule notwithstanding the qualifiers,” Watson said. “I can’t think of a situation where I’d try to hang my hat on any of the qualifiers in that rule.”

Watson likened the dynamic of an attorney receiving a lesser discipline for clearly unwanted sexual advances to a criminal matter where circumstances beyond a defendant’s control have frustrated his attempts to commit an offense and thereby reduced his exposure to punishment. He also said that an actual sexual relationship with an attorney might harm a client’s interests in ways that unwanted sexual advances wouldn’t introduce.

“In one respect, if the client is consenting, it almost creates more of a conflict of interest, because there’s an incentive to continue with the relationship, and so you might be more concerned with keeping the relationship going,” Watson said. “The fact that a client consents to a relationship I think may actually lead you further down the wrong path.”

States handle these dilemmas in different ways. In North Carolina, the Rules of Civil Procedure have long contained a standalone Rule 1.19 which states that a lawyer shall not have sexual relations with a current client nor require or demand sexual relations with a client incident to or as a condition of any professional representation. The term “sexual relationship” is defined broadly to include any touching of intimate parts for the purpose of arousing or satisfying desires. Attorneys there said the rule helps blunt any argument by an attorney that his actions didn’t negatively impact the client.

Eric Bland, an attorney with Bland and Richter in Columbia who represents clients bringing malpractice claims against attorneys, said that the Bledsoe case was typical in some respects. Sexual harassment of clients is overwhelmingly more prevalent in family law matters, and Bland said he has yet to personally see a case where a female attorney is accused of harassing a male client. But he said he believed that in some ways the situation in the profession is improving.

“In law school there were two holy sins you could never cross. One was to dip into the trust account. One was sexual impropriety during the course of your representation,” Bland said. “I think [the courts] take a greater concern regarding money that I’ve seen in the disciplinary rulings. But lately, though, I think the pendulum is starting to move in the other direction that we’re going to be less tolerant of attorneys doing that.”

In many cases, pursuing attorney discipline will be the only avenue of recourse for clients who are sexually harassed. But Bland warned that such conduct would necessarily call into question whether an attorney was handling a case competently. If the conduct infects the relationship significantly enough, a client may have a case for legal malpractice—including, he theorized, a claim for damages for emotional distress.

“South Carolina has never adopted that you can recover emotional damages in a legal malpractice case, however we are all awaiting that case where the economic damages are so low, but the emotional trauma or exploitation is so large that we believe South Carolina will adopt what other states have adopted, that you can receive emotional distress damages in a legal malpractice suit,” Bland said.

When Lawyers Weekly asked John Nichols, the Disciplinary Counsel for South Carolina, whether the rules created a situation where a lawyer might be spared more serious discipline simply because the advances were unwanted, he said the question was a valid one.

“What happens in a lot of these situations, clients are vulnerable and the lawyer becomes essentially a predator. I think [the court] looks at the difference of power in the relationship,” Nichols said. “I believe our court views Rule 1.8(m) such that a lawyer is presumptively in a position of control or undue influence, and that it is harmful to the client’s case.”

Follow David Donovan on Twitter @SCLWDonovan

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