10 March 1995
AT LEAST one High Court judge has condemned the practice, a Queen's Counsel has spoken out against it, and now the Legal Services Ombudsman has called for action.
But still the Law Society refuses to ban its members from sleeping with clients.
Unlike doctors who are governed by strict ethical rules, solicitors in England and Wales remain free to romance their clients. According to professional guidelines a lawyer can take a client to bed and to court, so long as he or she can differentiate between the two.
The society appears to believe love or lust will not automatically alter a solicitor's per- ception of a case, although the latest Guide to the Professional Conduct of Solicitors, due next year, will say it "may" abuse the professional relationship.
The Law Society conceded some ground following pressure from ombudsman Michael Barnes, agreeing to alter its rules to advise lawyer/lovers of the risks they run. But its Standards and Guidance Committee has not outlawed the practice.
In a letter to Barnes, dated 20 March 1995, committee chair Paul Venton says it would not "necessarily be improper" for a
solicitor to start a sexual relationship with a client or continue to act for someone they become involved with.
"However, it was agreed the guide should contain an explicit reference to the question of taking unfair advantage in entering into a sexual relationship with a client," says the letter.
"Explicit" amounts to the introduction of a clause that, "whilst it may not necessarily be so", the development of a sexual relationship between a lawyer and a client "may be an abuse of the solicitor/client fiduciary relationship". Commentary on the principle, which says "a solicitor must not abuse his or her position to exploit a client by taking advantage of a client's age, inexperience, ill-health or want of education or business experience" has also been extended to include "emotional or other vulnerability".
Barbara Eastgate, policy executive with the society's professional ethics division, says the committee decided against Barnes' call for a prohibitory rule specific to family cases as all clients, not just those in matrimonial cases, are vulnerable.
"Although the ombudsman referred specifically to matrimonial clients, there are all sorts of non-matrimonial clients to whom the guide ought to equally apply," says Eastgate. "The new provisions are adequate to deal with any situation which might arise."
The committee's stance is backed by leading family lawyer Eileen Pembridge, former chair of the Law Society's family law committee, who said solicitors are already forced to operate under strict constraints and a prohibitory rule could further deprofessionalise the practice of law.
"But I still think it's bad practice to get involved," she says. "If that looks like happening then solicitors should think carefully about whether they should continue to act. It clouds the issue and it could be genuinely taking advantage. I certainly think it's something people should steer clear of."
But Barnes says this is not enough and prohibitory rules should be enacted. Vulnerable clients, in particular those involved in family law, need protection, he says, and solicitors should remain impartial.
In his 1994 annual report, Barnes recommends the Law Society introduces a prohibitory conduct rule "to the effect that solicitors must not act for a client in matrimonial matters if they are, or become, involved in a sexual relationship with the client".
The report says that the number of complaints referred by the Solicitors Complaints Bureau are comparatively small. Only one case came to the office last year which, after examining the evidence, Barnes sent back to the SCB for further consideration.
The bureau found in favour of the lawyer, whom an ex-husband alleged had orchestrated the handling of the wife's case - through another solicitor - after withdrawing as her adviser.
But Barnes, who has the support of the Solicitors Family Law Association, warns the problem may be understated because of the nature of the matter. He said the fact a great number of cases cannot be drawn on as evidence may indicate the reluctance of embarrassed former clients to come forward, rather than a lack of actual misconduct.
"It seems to me it's not good enough to leave it to the individual solicitor to consider whether this may place his or her own interests in conflict with those of the client," says Barnes. "In respect of matrimonial cases there should be a clear rule which states that solicitors must not act or no longer act if they become involved in a sexual relationship with the client. I don't feel that the changes to the guide which the Law Society is proposing to introduce really do much. I find them disappointing.
"As soon as a solicitor enters into a sexual relationship with a client in a divorce case that solicitor's professional judgement is bound to be clouded because of a personal and emotional involvement with the client."
Barnes is not alone in his argument. In a 1993 address to the American Inns of Court Association, Mr Justice Mathew Thorpe, a High Court judge sitting in the Family Division, warned that one of an advocate's most "vital" qualities was detachment and "any emotional, psychological or physical intimacy imperils that detachment".
Thorpe, who echoed the sentiments expressed in The Times by David Pannick QC, went further to suggest that while barristers, and particularly QCs, were protected by the indirect nature of their relationships with clients, this formed no basis for distinguishing between rules for the Bar and solicitors. "I believe the proscription is needed for the protection of clients and, to a lesser extent, for the protection of lawyers."