Posted by Eugene Volokh:
Things Lawyers Argue About:
http://volokh.com/archives/archive_2007_10_21-2007_10_27.shtml#1193336634
Does having sex with a current client's girlfriend, while he is also
having sex with her, count as having sex "with a current client" (a
practice forbidden by state bar rules)?
From [1]Office of Lawyer Regulation v. Inglimo, decided last week by
the Wisconsin Supreme Court (paragraph break added):
¶57 The relevant language of SCR 20:1.8(k) is as follows:
(k)(1) ... (i) "Sexual relations" means sexual intercourse or any
other intentional touching of the intimate parts of a person or
causing the person to touch the intimate parts of the lawyer....
(2) A lawyer shall not have sexual relations with a current client
unless a consensual sexual relationship existed between them when
the lawyer-client relationship commenced.
¶58 The referee found that Attorney Inglimo engaged in sexual
relations with L.K.'s girlfriend while she was doing the same with
L.K. The OLR essentially argues that the word "with" in SCR
20:1.8(k)(2) connotes a temporal and spatial connection. According
to the OLR, as long as the lawyer and the client are both
participating in a sexual act at the same time in the same place,
they are having sexual relations "with" each other....
¶59 On this issue, we concur with the referee's conclusion [that
Inglimo did not violate the rule]. The definition of sexual
relations in SCR 20:1.8(k)(1) connotes conduct directly between the
lawyer and the client. When the definition refers to touching, the
rule speaks of the lawyer intentionally touching the intimate parts
of "a person," but the subsequent alternative definitional phrase
uses the more definitive "the person" when referring to a situation
in which the lawyer causes the touching to be done to him/her. In
addition, to the extent that sexual intercourse also qualifies as
"sexual relations" under the definition, such conduct is likewise
done intentionally (i.e., not by accident).
Further, SCR 20:1.8(k)(2) prohibits a lawyer from having "sexual
relations" "with a current client." Thus, the definitional language
of SCR 20:1.8(k)(1) and the prohibition of SCR 20:1.8(k)(2)
together clearly indicate that the prohibited "sexual relations,"
whether intercourse or touching, must be intentionally done between
the lawyer and one particular person, namely the client....
[B]ecause it does not appear that the definitional elements of
"sexual relations" have been satisfied, the simple term "with" in
the prohibitional phrase in SCR 20:1.8(k)(2) cannot transform this
situation into a violation of the rule.
Note that Mr. Inglimo was found guilty of a good deal of other
misconduct, involving sex, drugs, and money, and was suspended from
the practice of law for 3 years.
References
1.
http://www.wicourts.gov/sc/opinion/DisplayDocument.html?content=html&seqNo=30664
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