Lawyerly Liaisons

According to the state bar, attorney privilege apparently extends beyond clients' briefs

"It just happened," says Houston attorney Mitch Gaspard, sounding like a teenager who lost track of time or kissed someone other than his steady. But Gaspard is talking about the much more serious matter of having sex with his client, something that some attorneys say should never "just happen."

It's hard to say exactly how it did happen. Gaspard says that he and Diane Beadle were bunked in separate bedrooms at his lake house until Beadle climbed into his bed in the middle of the night. Beadle scoffs at that, saying she was emotionally and financially vulnerable, beleaguered by a difficult divorce, when her attorney seduced her. Either way, the relationship would wreak havoc on both their lives and highlight an ongoing debate about the ethics of attorney-client sex in Texas.

Beadle met Gaspard in September 1993, six months before the lake house liaison, when she and her husband hired him to represent them in a real estate matter. Shortly thereafter, Beadle's husband skipped town and left her to raise their four kids without much in the way of child support. Gaspard was not her attorney in the resulting divorce, but he did offer to handle a usury claim during the divorce proceedings in 1995. By then, the lawyer and his client were boyfriend and girlfriend. But the love didn't last. Beadle thought that Gaspard was going to marry her, but Gaspard was spending time with his ex-wife. In February 1997 he ended the relationship.

The bill arrived - after the romance ended.
Scott Gilbert
The bill arrived - after the romance ended.

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It might have been just another sad story of romance gone awry. But after the breakup, Gaspard sent Beadle a bill for a few thousand dollars for legal work he had done on the usury claim two years earlier. Beadle was shocked and hurt.

"If you're gonna have a relationship with somebody while you're representing them, Jesus, don't bill them for it later, after you've told them you were working for free," says her attorney, Kenneth Lupo. "The sending of the bill itself was extremely emotionally distressing to her." Beadle gained weight, lost sleep, contemplated suicide and started taking Prozac.

When Beadle didn't pay the late legal bill, Gaspard sued her for the fees. And Beadle sued him right back, for fraud, misrepresentation and the emotional distress caused by the bill and Gaspard's lawsuit. Gaspard then sued Lupo for perjury, slander, defamation and filing a frivolous counterclaim. Gaspard's pleadings accused Lupo and Beadle of conspiring with the devil and asked that they be "horse whipped" by the court. His incendiary pretrial interrogatories also demanded that Beadle answer intimate questions, such as whether her sex drive was higher than his and whether she would have sex with Gaspard at any time and place.

"I guess conduct like this is sort of like a plane crash," says University of Houston law professor Robert Schuwerk, speaking in general about sexual relationships between attorneys and clients. "There may not be a lot of them, but if they ever happen, they're really disasters."

Schuwerk chairs the State Bar of Texas Professional Conduct Committee, which just weeks ago proposed a rule that would ban "quid pro quo" sex between attorneys and clients and prohibit lawyers from beginning sexual relationships with those they were personally representing.

That's right: It's against the law for such professionals as doctors, psychiatrists, psychologists and preachers to sleep with their patients or parishioners. But there is not even a disciplinary rule to keep attorneys, who can be in positions just as powerful, from screwing their clients -- literally.

"It's a practice that can be tremendously devastating to the client," says Schuwerk. "It can be extremely dangerous to the quality of the representation." Typical sexual abuse cases, he says, involve a male lawyer and a divorcée, a female criminal defendant or even a widow involved in a personal injury or probate case -- any situation in which the client is particularly vulnerable.

Larry Doherty, an attorney specializing in legal malpractice cases, agrees. "It is an absolute distortion of reality to think that a person in an inferior position can ever effectively consent … to that kind of relationship," Doherty says.

The most common argument against such sexual ethics rules is that attorneys who sleep with clients are already subject to discipline under the bar's code against conflicts of interest. But Schuwerk and Doherty, who have both served on bar grievance committees, say that sex-offending attorneys are rarely, if ever, punished for it. Doherty has another explanation for the bar's failure to enact a no-sex rule: "I think it's because there are a lot more perpetrators than the bar wants to admit, and that the very people trying to obstruct the initiation of a rule are the offenders."

A jury certainly didn't like the fact that Gaspard was screwing his client. Jurors awarded more than $80,000 in damages to Beadle, finding that Gaspard had indeed defrauded her and intentionally inflicted emotional distress. The judge even assessed a $20,000 sanction against Gaspard for filing a frivolous counterclaim against Lupo.

But the First Court of Appeals reversed the jury's findings, somehow surmising that no reasonable jury could have concluded that Gaspard had agreed to work for free. The court also found that Gaspard did not intend to cause Beadle emotional pain because his behavior failed to meet the legal standard of "extreme and outrageous" conduct.

The appellate decision came in a ruling by Chief Justice Michael Schneider, Justice Tim Taft and retired Justice Jackson Smith. Their opinion describes a happy relationship between the attorney and his client, noting that Gaspard met Beadle's friends and played with her children and generally treated her well. It also includes such platitudes as "Couples will often promise to do things for their partner while they are involved in a romantic relationship" and that "in today's society, individuals need to have thick skin."

"The court ruled that the law allows a lawyer to fuck his client as long as she likes it, and if she complains later that she didn't like it, then tough," says Doherty. "I think this case has come up at this time in order to give us, the bar, an opportunity to see how wrong we've been."

Lupo hasn't decided if he will appeal to the Texas Supreme Court, although several attorneys have called him to offer their assistance. Doherty hopes that the Supreme Court responds to this opinion and initiates a rule against attorney-client sex, whether or not the case is appealed.

Hopes aren't as high for attorneys themselves to ban lawyerly liaisons. In 1994 the state bar's Women in the Profession Committee proposed a rule against attorney-client sex if it was likely to hurt the client or the client's interests. It was tabled and forgotten by the bar. History seems to be repeating itself. Just last month the bar voted to table the Professional Conduct Committee's no-sex proposal as well.

"Anybody who could read our quid pro quo rule and defend that," says Schuwerk, "probably should turn in their ticket."

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