There’s roughly 1-2 minutes of any professional responsibility course that livens the classroom into relative alertness. It happens when the professor (or bar exam lecturer, let’s be real), notes a comment under the provision that requires an attorney to charge fees that are fair and reasonable. The comment underneath requires an attorney to refrain from sexual intercourse with a client; and, if sexual intercourse begins during the attorney-client relationship, the attorney should withdraw if possible. The noise you just overheard was Michael Scott screaming, “That’s what she said,” from Scranton, Pennsylvania.
Everyone usually laughs – a few don’t, and those are the ones we should be really concerned about. Apparently, attorneys charged sexual favors for legal services at a sufficiently numerous rate that the ABA decided it was necessary to include as a comment under that rule. Even with that in mind, it’s just one of those things you don’t think anyone would really attempt. Aside from it being a form of prostitution, it also threatens to sacrifice a lawyer’s professional judgment for all the emotions and turmoil consistent with a sexual relationship with another human. Against all odds, lawyers don’t take rejection easily.
With all that said, bizarre does not even begin to describe an Indiana former public defender’s breach of that ethics rule – and the law. He texted a phone he knew to belong to a prostitute while law enforcement possessed the phone. Come on, man. That’s a law enforcement officer’s dream. A public defender – the attorney charged with the task of carefully scrutinizing and analyzing the constitutionality of police conduct – texted a prostitute’s phone in police possession.
Naturally, law enforcement set up a sting operation where an officer responded to the public defender’s texts as if she was the prostitute, and set up a meeting. At the start of the meeting, the public defender attempted sexual advances on the law enforcement officer. Whoooops.
The ethics rule is primarily concerned about the lack of professional judgment an attorney might provide when intermingled with a sexual relationship. The ABA does not have law enforcement powers – it’s most powerful threat is the ability to strip an attorney of his license to practice law. Once this attorney faces the gauntlet of criminal charges dealing with prostitution – it might be wise to hire an attorney – he most likely will not come back to his license to practice, though the market for his services might sufficiently take care of that on its own.