An Upstanding Member (Of The Bar)

The South Carolina Supreme Court has issued an anonymous admonition to an attorney who had sex with the spouse of a current client:

Respondent has been an upstanding member of this bar for thirty-seven years, and before this action was filed, had never run afoul of the Rules of Professional Conduct.  Nevertheless, the Commission on Lawyer Conduct received a letter from an individual (Client) alleging an inappropriate sexual relationship between his wife, (Wife), and Respondent, whom he claimed was representing Client in three on-going legal matters at the time...Respondent admitted to having a social relationship with Wife, and also informed ODC that upon learning of Client's suspicions, Respondent had sent a letter to Client informing him of his intent to withdraw as counsel and enclosing three consent orders relieving him of further representation. 

Thereafter, ODC replied to Respondent's response by requesting additional information, including the following:  "Your letter states that you have socialized with Client's estranged wife beginning after your attorney-client relationship with her ended.  Please provide this date."  In answer, and upon the advice of counsel, Respondent stated that he had socialized with Wife sometime earlier that year.  Subsequently, ODC sent a further letter, asking the more direct question:  "Have you had sexual relations with [Client]'s wife."  In reply, Respondent submitted a signed affidavit attesting that he engaged in sexual relations with Wife on one occasion, but had informed Client two days later that he could no longer represent him and had terminated all further communication with Wife.  One week later, ODC gave Respondent notice that it had been authorized to conduct a full investigation into Client's allegations, specifically finding Rules 1.7, 1.8, and 8.4, SCRPC, Rule 407, SCACR relevant to its investigation. 

The court's analysis of the ethics of the situation:

The Panel specifically stated it did not condone Respondent's conduct in this case, noting:  "we find it morally inappropriate and ill-advised at best."  However, the Panel found that sleeping with the spouse of a client did not constitute a per se violation of the Rules of Professional Conduct, and that in viewing the totality of this case, it did not believe Respondent's conduct rose to the level of a Rule 1.7 violation.  We disagree.

The circumstances and facts of this case come dangerously close to an outright conflict of interest under Rule 1.7(a)(1).  ODC maintains the Panel erred because it found Respondent's conduct to be morally inappropriate and ill-advised, yet still found the conduct did not rise to the level of a Rule 1.7 violation.  We feel Respondent's actions, at the very least, created a "significant risk" that his representation of Client could be compromised due to his personal interest and interaction with Wife.  Indeed, that significant risk was realized in this case when Client objected to the relationship between Wife and Respondent, and Respondent ended the attorney/client relationship. 

The practice of law is a laudable profession that should be held to the highest of standards; practicing law is a privilege.  Respondent admits to a serious lapse in judgment in these circumstances, and rightly so.  Sexual involvement with the spouse of a current client, while not expressly proscribed by the language of our Rules of Professional Conduct, unquestionably has the propensity to compromise the most sacred of professional relationships:  that between an attorney and his or her client.  Attorneys who engage in a sexual relationship with their client’s spouse do so at their professional peril.  Consequently, this Court alerts the bar, in addition to admonishing Respondent, that a sexual relationship with the spouse of a current client is a per se violation of Rule 1.7, as it creates the significant risk that the representation of the client will be limited by the personal interests of the attorney.

The court found that the hearing panel erred in rejected the conflicts charge and issued the opinion to provide guidance to those who would venture into this "treacherous area for attorneys."  (Mike Frisch)