Sex With Clients is Verboten. What About Sex with Former Clients and Prospective Clients?

give rosesOn December 9, 2014, the Supreme Court of Louisiana considered the propriety of sexual relationships involving a lawyer and various present, current and former clients. See In re Randy J. Fuerst, No. 2014-B-0647 (La. Dec. 9, 2014). The court held that lawyers are not prohibited from engaging in consensual sexual relationships with former and prospective clients—but cannot engage in such relationships with present clients.

Lake Charles lawyer Randy J. Fuerst engaged in multiple consensual sexual relationships with women who had retained him to handle their divorces. The court found that all but one of the relationships were permissible because they did not occur during the existence of an attorney-client relationship. Said the court:

[T]he ODC … argues that the ethical prohibitions against attorney-client sexual relationships should be extended to former clients, and should likewise apply in instances in which the lawyer has been consulted by a prospective client but no attorney-client relationship is ultimately formed. We find no support for this position in the Rules of Professional Conduct.

The court did find that one of the relationships, which took place during the mandatory six-month waiting period to confirm the woman’s divorce, violated Rules 1.7(a)(2) and 8.4(d) because the woman was technically still Fuerst’s client. The court suspended Mr. Fuerst for six months, with all but three months deferred. Two judges concurred and noted that they would have found Fuerst’s relationships with his former clients to be in violation of the Rules of Professional Conduct as well.

The takeaway? Although presented with the opportunity to do so, the court in Fuerst refused to extend the prohibition against lawyer-client sexual relationships to former clients and prospective clients.1

  1. Note that in 2004, the court followed the recommendation of the LSBA Ethics 2000 Committee and declined to adopt the ABA’s per se prohibition against lawyer-client sexual relationships. That rule, Model Rule 1.8(j), provides as follows:

    (j) A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.

    Those members of the LSBA Ethics 2000 Committee who voted against adopting Rule 1.8(j) did so for the following reasons: (1) they felt that the court’s existing case law adequately addresses the complex and variable issues associated with “unethical” sexual conduct; (2) they felt that a bright-line rule could serve as a safe harbor sheltering lawyers engaged in sexual conduct that is inappropriate, but that comports with the letter of Rule 1.8(j); and, (3) they felt that there may be situations in which sexual conduct should not be treated as per se sanctionable.

    On the other hand, those committee members who voted for adopting ABA Model Rule 1.8(j) did so for the following reasons: (1) they felt that a refusal to adopt Rule 1.8(j) could be misconstrued by the bar and the public as indicating that Louisiana has opted for a more permissive attitude with respect to sexual relations with clients, when that is clearly not the case; (2) they felt that the proposed rule is not inconsistent with existing jurisprudence in Louisiana; and (3) they felt that even if a sexual relationship predates the representation–and thus is not covered by the proposed rule–the lawyer is nonetheless constrained by other rules, including Rule 1.7(b), which the court already has interpreted to prohibit sexual misconduct adversely affecting the client.

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