Krauss on Attorney Ethics
A prohibition on attorney sexual liaisons with clients "could discourage people from doing things they might otherwise have done," said Professor Michael Krauss. Despite the fact that most attorneys would recognize the potential for a conflict of interest in such a situation, Krauss believes that there could be a benefit to making the rules for attorneys more specific.
Virginia is one of 14 states that do not address the topic of sexual relations between attorneys and clients in their rules and guidelines. Twenty-seven other state bars have adopted a rule banning such attorney conduct, while bars in six other states have included a less stringent variation to their standards for attorneys.
While the Virginia Bar offers only a sentence of caution under the conflicts of interest rule, the ABA advocates that state bars specifically ban sexual relations between attorneys and clients, except in cases where the sexual relationship predates the attorney-client relationship, as in the case of legal representation of a spouse.
Va,. Tenn, Among States with No Attorney-Client Sexual Relations Ban, Bristol Herald Courier. March 16, 2009. By Daniel Gilbert.
"Banning sex between attorneys and clients would add important clarity to Virginia's standards for attorney conduct, some experts say.
"'The advantage of it is that everyone knows where the line is,' said George Cohen, a professor at the University of Virginia Law School.
"In family law cases, where clients might be emotionally vulnerable, 'there's a real concern that even if you don't realize it, you may be subtly taking advantage of these people,' Cohen said in an interview.
"As with any broad legal rule, it can be over-inclusive and might penalize 'some relationships that would be relatively harmless,' Cohen said, but added he would favor a rule along the lines of the ABA prohibition.
"'If there is a specific rule, could that make a difference for some people? Probably,' he said.
"Michael Krauss, a legal scholar at George Mason Law School, agreed.
"Though most attorneys recognize the potential of conflicts in a sexual liaison with a client, a prohibition 'could discourage people from doing things they might otherwise have done,' Krauss said last week.
"'Being a little more explicit' in the rules is a good thing, he said.
"But Jeffrey Geiger, of the University of Richmond Law School, questioned the impact of the ABA rule.
"'Would the existence of that rule stop this individual from engaging in that unethical behavior?' he asked.
"From a disciplinary point of view, however, a ban might make it easier for the Bar to penalize an attorney, Geiger said.
"Davis, the bar counsel, agreed.
"'It probably would be easier to prosecute a charge of misconduct or regulate the profession if there were specific acts prohibited,' he said."