There’s No Place for the Law Society in the Bedrooms of Its Members

The Law Society of Upper Canada’s Rules of Professional Conduct are necessarily ambiguous on the subject of sex with clients to allow for some flexibility, given the highly subjective nature of these conflicts. Such acts are not specifically prohibited, but are referenced in the commentary at rule 2.04 governing conflict of interest. The rule states that a lawyer shall not continue to represent a client where there is a conflict of interest, unless there is full disclosure and informed consent.

However, the wording of the commentary merely suggests that when a relationship with a client becomes intimate, a member should consider a number of factors before continuing with the retainer, and should recommend independent legal advice in some cases. The case of LSUC v Hunter provided some insight for reconciling the apparent disparity between the rule for avoiding conflicts and its commentary, which addresses intimate relationships specifically. The judge noted that it was “not the case or the forum to debate whether the existing Rule is sufficiently broad or inclusive”,[1] allowing for this writer to discuss how the rules in their current form are as broad and inclusive as they ought to be.

It is not the role of the Law Society to presume absolutely that clients are exploited from sexual relationships. Hunter referred to the case of LSUC v Joseph in detailing the inherent dangers of engaging in sexual relationships with clients. One such danger is the difficulty in evaluating a vulnerable client’s consent that may be rooted in their dependence on the lawyer’s representation and support.[2] Although it is an inherent danger, exploitation is a sexual harassment matter covered by Rule 5.03 and ought to be treated as separate and distinct from conflict of interest concerns.

Of particular relevance is subsection 5.03 (1)(b), which defines sexual harassment as arising “when submission to such conduct is made implicitly or explicitly a condition for the provision of professional services”. But harassment situations are more effectively evaluated on a case-by-case basis due to the relevance of circumstances in assessing whether there has been any wrongdoing. The power dynamic of a lawyer-client relationship is distinguishable from classic sexual harassment cases between employer/employee because it is the lawyer who works for the client. Lawyers can, in fact, be victims of a client’s exploitation where the power balance is perceived, by either party, to be in the client’s favour. An absolutist approach to policing intimate relationships can run the risk of punishing lawyers who do not effectively exploit their clients.

A sexual relationship with a client does not necessarily preclude their objectivity, and should not be viewed any differently from the experiences shared with a friend or family member whom the lawyer represents. A lawyer is not expected to sever ties with a client when a friendship is established over the course of their professional relationship, as is often the case. A friend with whom the lawyer has shared an intimate relationship in the past raises the same concerns as a friend who has never been intimate with the lawyer. To include the salacious details of these relationships within the Rules of Professional Conduct would only create an arbitrary distinction.

Lawyers have a duty to act in the best interests of their client regardless of their personal feelings towards them. To illustrate this point, an ancient Greek military unit known as the Sacred Band of Thebes consisted entirely of homosexual soldiers whose courageously ambitious efforts in battle were said to be motivated by their intimate relationships with one another. The same idea applies to the lawyer-client relationship, where the will to protect one’s client can even be strengthened by an intimate relationship. It does not necessarily conflict with the duty to provide independent and objective representation when it is in the best interests of one’s client to do so.

A lawyer compromises the objectivity and independence of their representation where, for example, a legal relationship is unnecessarily prolonged in order to extend a sexual one. But lawyers may be motivated to do so in the mere pursuit of an intimate relationship with a client. The Law Society is limited in its ability to police its members’ feelings towards their clients, and to create a distinction for actual cases of intimacy would be arbitrary and perverse.

Inevitably, one or both parties end up being hurt by the severance of an intimate relationship. But where relationships go awry and bitter feelings permeate, it is common sense on the part of both parties to sever professional ties with one another. It is also a reality of the profession that lawyers are required to work for unsympathetic clients whom they simply do not get along with. Setting one’s personal feelings aside can be a challenge for many lawyers, but not one that is unique to conflicts arising out of intimate relationships.

The scope of Rules 2.04 and 5.03 sufficiently address the dangers raised by intimate relationships between lawyers and clients without arbitrary distinctions and unnecessarily punishing lawyers. The Hunter case demonstrates that the rule is rightly concerned with a lawyer’s character more than an uncharacteristic moment of weakness. The fact that the relationship did not appear to affect Hunter’s legal duties played a factor in the court’s decision to impose a fairly reserved penalty.

In distinguishing the Hunter case from the prior case of Joseph, the court noted the importance of flexibility by stating, “…while the principles in the Joseph case do inform our decision here, we make the not uncommon observation that each case spins on its own facts”.[3] Law firms are ultimately better suited to handle the salacious matters of their partners and associates than the Law Society, who ought to be more concerned with policing conflicts of interest generally.

[1] Alice Woolley et al, Lawyers’ Ethics and Professional Regulation, 2d ed (Markham: LexisNexis Canada Inc., 2012) at 350.

[2] Ibid at 353.

[3] Ibid at 352.

The author is a first year student at the University of Ottawa Faculty of Law and wrote the essay for Professor Dodek’s course on Legal Ethics.

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