Couch Fees in Texas

Rule 1.13. Prohibited Sexual Relations [new, renumbered]
(a) A lawyer shall not condition the representation of a client or prospective client, or the quality of such representation, on having any person engage in sexual relations with the lawyer.
(b) A lawyer shall not solicit or accept sexual relations as payment of fees.
(c) A lawyer shall not have sexual relations with a client that the lawyer is personally representing unless the lawyer and client are married to each other, or are engaged in an ongoing consensual sexual relationship that began before the representation.

That’s right: “new.” This is not currently the rule in Texas; the Supreme Court is proposing that it be adopted. I have mixed feelings about this.
On the one hand, this would be a new law, and I’m in favor of fewer laws rather than more.

On the other hand, why is this even an issue?

A lawyer can’t enter into a business transaction with a client without full disclosure and written informed consent (Tex. Discip. R. Prof. Cond. 1.08); who could possibly think it anything other than a monumentally bad idea for a lawyer to charge or accept a “couch fee”? To begin a sexual relationship with a client?

The mere fact that something is a bad idea, even a monumentally bad idea, doesn’t mean that it should be illegal. Life, especially that part of life that involves growing, is about making mistakes—even monumental mistakes—and then learning from the mistakes while trying to fix them. For most mistakes, even monumental mistakes that hurt other people, criminal liability is grossly disproportionate. (For example, the person who negligently causes an auto accident that happens to kill someone is still only negligent, and nobody gains from making him a felon.)

But we’re not talking about criminal liability here; we’re talking about disciplinary liability. The worst-case scenario is disbarment, not prison or death. So we can rationally set the bar lower on conduct that merits discipline than on conduct that merits prosecution.

Also, we’re not talking about the general public, but about an elite subgroup with a great deal of education and a government-issued franchise to wield terrific power. In other words, we’re talking about people who a) can do great harm with a small slip; and b) ought to be more careful. It’s grievable for a lawyer to neglect a legal matter (where “neglect” means inattentiveness involving a conscious disregard for the responsibilities owed to the client), but it’s not a crime.

We’ve got these clients, and it’s our job to protect each of them. They are in vulnerable positions, and we are in positions of authority. We are the insiders, trusted with power over life, or freedom, or financial security.

Our clients don’t know the arcane rules that govern us and protect them. I often have potential clients who are thinking about changing lawyers ask me, “can my old lawyer do something to harm my case?” The answer is “well, not ethically,” but as a practical matter, yes, a lawyer can do a good deal to harm a client or ex-client who hurts the lawyer’s feelings. And sometimes lawyers do.

Abuse of positions of trust; vulnerable victims: in criminal law, these would be “aggravating factors.” And while the proposal before us is not to criminalize couch fees, these aggravating factors are the sort of thing that should be considered when deciding whether to attach a sanction to a monumentally bad idea.

Speaking of abuse of trust and vulnerable victims, a teacher who has sex with a student at his school commits the second-degree felony of Improper Relationship Between Educator and Student—even if the student is above the age of consent and otherwise consents.

For that matter, a mental health services provider or a health care services provider or a clergyman who causes a patient or former patient to participate in sex by exploiting his emotional dependency on the professional commits the second-degree felony of Sexual Assault—again, even if the patient is of age and doesn’t say “no.”

Health care services providers include doctors, nurses, and chiropractors.

So a chiropractor can go to prison for exploiting his patient’s emotional dependency. But a lawyer exploiting a client’s emotional dependency can’t even get grieved? (You can tell the chiropractors aren’t the ones writing the laws.)

That health professionals can’t legally do it doesn’t mean that lawyers should be able to ethically do it—maybe it is ethical (and therefore should be legal) for all sorts of professionals to have sex with those who depend on them.

Does any lawyer really believe that it’s ethical for a lawyer to trade sex for services? If so, then that may be the strongest argument for the proposed change to the rules—this is one of those things that, if it doesn’t go without saying, probably ought to be said.

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0 responses to “Couch Fees in Texas”

  1. Not only is this a good idea, but take it further and add in no relationship with judges that you appear before or try cases with.

  2. Okay, so a client walks into a lawyer’s office, and hires him for legal services. In the course of that professional relationship, the two of them get emotionally involved, and end up (consensually, and all) on the couch, bumping uglies. It’s not a:, (not being swine, the lawyer doesn’t make it conditional) but c:, and he, feeling that it would be a bit strange to also send his new girlfriend/FWB/whatever a bill, decides that, all things considered, he’d rather not, so he violates b:.

    Does his conduct necessarily merit discipline? Sure, it might — if he’s deliberately exploiting her emotional or financial vulnerability. But, nah, in this case — it’s a speeding ticket, and she can easily afford his fee, and it’s really mutually consensual.

    Maybe I’m missing something, but in the hypo, while he’s violated both b: and c:, I don’t see how either of them has been harmed, or done anything wrong. And even if we change it so that they’re not emotionally involved — they both just like a little couch time — I don’t see how either’s behaving in a way that they ought to answer to others for.

    • So a very mature 16-year-old walks up to a guy in a bar, and they wind up on the couch at his place. . . .

      I think (c) might be reasonable based on the same rationale as statutory rape: while there may indeed be 16-year-olds who are competent to consent to sex, protecting those who aren’t requires restricting the freedoms of those who are (and of those who love them).

  3. Mr. Fredrick you are “dead on”. Instead of a lawyer trying to come up with a loophole or exception to the “Rule” that doesn’t even exist – YET, why can’t we as a PROFESSION agree that it is absurd to think any of these other professions could or should even go to jail for the same conduct, but lawyers don’t even have a mere “bright line” ethical rule prohibiting such conduct as a simple conduct rule of behavior. Like Mark said, we “ain’t even talking crime here”.

    When a client comes into your office why are they there? What is their problem or need and can you help them? What is at stake? Who has the most to gain or lose – the client or you? Who is vulnerable, stressed out, and in a foreign place and who is the person being sought out to navigate these strange waters? Come on lawyers! It’s NOT RIGHT TO F_ _ K your clients period! The fact that the ABA Model Rules of Professional responsibility adopted a standard rule on this very issue 9 years ago and Texas STILL has no such rule is an abomination.

    Why is it important to have such a rule? It’s simple – because now the State Bar of Texas “Police” have to get creative to make one of these type complaints stick by trying to “carve out’ of the existing rules some shadow of a violation IE: Conflict of interest, or unconscionable fee, neglect, etc.

    Family Court and Criminal Courts are the fertile grounds for such unethical conduct and happening it is! Have you ever been a defendant? Ever faced the humiliation of losing your life, liberty, family, job, property, kids, DIGNITY and then have the very person you reached out to turn around and hit on you? This is a VERY, VERY, serious matter and to change the topic to judges, or change the Hypo to a traffic ticket situation, ‘hardy, har, har, – just begs the question of how serious this matter is and do any of us as members of the PROFESSION want to step up to the plate and stop being obtuse and truly CHANGE the way things have always been done. I applaud Mark for posting this issue and for Twin Cities for hitting the nail on the head!

    I leave you with this question; Remember all the rubber bracelets people wore / wear that say W.W.J.D.? For our purpose here lets change it to: W.W.A.F.D.? What would Atticus Finch do? When the time comes I encourage every member of the Texas Bar to vote FOR this very important lawyer Ethical Rule.

    PS: To truly trade sex for ‘legal’ representation IS a crime. It’s called PROSTITUTION!

  4. I agree with Mr. Fredrick in the sense that the lawyers are not people that should be involved in sexual business on a professional level but rather people that ethically should display some respect in the manner that the lawyers might be the only way the defendant could get out of jail, or in some cases out of death. Hence they would naturally feel very strongly connected to the lawyer (at least in some cases). This being said it would not only be totally unethical but also extremely inappropriate for a lawyer to take advantage of the client in a sexual manner. I personally agree with this law although both sides of this argument have valid points.

  5. OK, let’s take this a little differently:

    Picture, say, AR, a young lawyer working for Big Law. She works 16-18 hour days, six or seven days a week.

    She meets 2 types of people: law firm employees, and clients. The law firm discourages fraternization amongst employees.

    One of Big Law’s clients is Megamart Distribution. XY, Assistant Director of Global Operations at MegaMart Distribution catches AR’s eye. She and XY start talking, and soon, an attraction develops; coffee leads to coitus.

    Should AR lose her license? Does she, a Junior Associate, have more “power” in the relationship than Assistant Director of the World??? Is XY particularly VULNERABLE in the relationship?

  6. Let us assume she is having sex with the person who makes decisions for MegaMart, the person who signed the contract with her firm, and the person who speaks for MegaMart in the litigation.

    Let’s look at it another way: Donald Trump is the client. She’s bedding Trump. (Those big firm lawyers aren’t known for their taste…) Is there any chance she is taking advantage of Mr. Trump’s vulnerabilities and powerlessness here?

    Basically, this rule makes sense in a family/criminal/PI context. It makes far less sense in a corporate/transactional context.

    • Actually, at a mere bank or an accounting firm the person involved with the client’s agent would be expected to withdraw and pass the client on to another person within the firm, at a minimum. For a lawyer, the same would apply.

      Getting into the sack with clients is a conflict of interest in any business where fiduciary rules apply, whether it’s illegal or not. There are too many opportunities for deals to be cut that aren’t in the institution’s interest.

      And don’t forget that the tort system is always watching, whether or not the cops or the state bar turn a blind eye.

      • Sure. And that seems — from this remove — to be a better (not, by any means, great) solution, as for a tort to be properly prepared — err, for a tort to become a legal issue, somebody involved has to think/feel he or she was harmed in some way, as a necessary (although not sufficient) condition. At the least, that distinguishes between the folks who just happened to meet because one was representing the other from the sleazoid who decides that his couch is an ATM.

  7. To Patrick on your comments: Touché!

    Texas Lawyers, my GAWD! How hard is this concept for you to grasp? To be a member of the Legal Profession, one must first and foremost be PROFESSIONAL. For a refresher course in what is minimally expected of you, view the following item from the University of St. Thomas Web Page:

    These new rules will only affect those “bad apples” that need to be shaken away from the Profession’s tree anyway. To the rest of you: “ Keep up the good work”!

  8. Thank you for asking the question. I have to say that I agree with you even though there are several others making very good points. I would like to say in addition that ethical rules govern conduct that may or ma not be wrong on its face (such as the case where consenting adults just happen to fall into “bumping uglies” as one poster commented) but conduct that would lead to the appearance of impropriety and tend to tarnish (maybe further tarnish) the reputation of the profession. Further, as we lawyers well know, there is almost always the tendency to try and find the exception to the rule which will allow us to perform the prohibited conduct…

    Ultimately, what I find most entertaining is the idea that one might be engaged in a non-prohibited pre-representation consentual relationship for which we would later send the object of our affection a bill… Honey, that was wonderful… Now, about your legal bill…

    Again, thanks for asking such a good question.

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