Allegations of lawyers indulging in intimacies with clients have been around since long before millionaire divorcee Linda Sarofim Lowe alleged she was laid by lawyer Earle Lilly. In confronting those issues, the State Bar of Texas has not been slow to act -- it has yet to take any forceful action at all.
While the bar's ethics code has relatively detailed lists of improper conduct for attorneys, sexual hanky-panky is nowhere to be found.
"It is a no-brainer," said attorney Larry Doherty, a renowned legal malpractice specialist. "We all know that the 'standard of care' with a client is to keep your penis in your pants. There are Texas statutes prohibiting sex for doctors, mental health providers -- even preachers. Everybody knows lawyers belong in a statute as well, but the Legislature is dominated by lawyers."
Defenders of the State Bar of Texas status quo say disciplinary actions can still be filed against attorneys for violating the conflict-of-interest section of the ethics code. But Doherty said a bar grievance committee in Houston refused to act on the complaint of a woman who pursued discipline against her attorney for that very reason.
"Saying that we wouldn't dare want to have two rules on conflicts is so much sophistry -- that's a cleaned-up word for 'horse shit,' " Doherty said.
Legal scholars estimate that more than ten states now have specific ethics rules barring sex with clients.
For the most part in Texas, clients who feel sexually victimized by counsel can do what lawyers like them to do -- hire attorneys and sue the offending lawyers for malpractice. But the odds of prevailing are uncertain, and especially uncertain are the odds of gaining meaningful damages, critics said.
In 1994, the Women in the Profession Committee of the state bar proposed a modest ethics rule against sex if there is a reasonable likelihood of the activity hurting the client or the client's interest. Supporters of the proposal saw it shelved by the bar's hierarchy, and blamed the defeat on male domination of the group.
Professor Robert Schuwerk of the University of Houston Law Center chairs the Professional Conduct Committee of the state bar, which earlier this year proposed an attorney referendum on banning sex as a condition for representing a client. That, too, was shot down by the bar's General Counsel Oversight Committee.
Some attorneys believe the state bar should not be involving itself in what is essentially a romantic venture between two consenting adults.
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"But once you have that relationship mixed with the professional relationship, you have a very explosive mixture," Schuwerk said, speaking in general and not about the Lilly case. "It is almost impossible to not have the lawyer's judgment clouded and the client's interests compromised."
It is very easy for such relationships to go wrong, with the fallout lingering on indefinitely, he said. "It is not only the legal interests of the client, but the client's personal well-being," Schuwerk said. "Once the professional relationship of trust is breached, there can be long-lasting damage on the part of the client."
"The issue has been studied to death by the bar," Doherty said. "Sexual addiction is as real a diagnosable addiction as those for alcohol, drugs or even food. It happens all the time, and it is time for a change. But these [bar officials] are the same addictive personalities who refuse to protect the public from 'us.' "
-- George Flynn