Last night’s episode of TV’s smartest legal drama since the 1960’s, CBS’s “The Good Wife,” dealt with the “no sex with clients” ethics rule adopted by most states (but not Washington, D.C.!) in a continuing subplot about the budding romance between firm tigress-partner Diane Lockhart (Christine Baranski ) and ballistics expert Kurt McVeigh, played by Gary Cole. In the episode, entitled “Silver Bullet,” Lockhart decides to represent McVeigh when he is sued for millions.
That’s her first ethics mistake. While the rules don’t prohibit a lawyer from representing someone whom you are romantically attracted to, Rule 1.7 Conflict Of Interest: Current Clients declares it unethical to accept a client when
(a) (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
And, of course, when you are simultaneously trying to do what is in your client’s objective best interest and trying to escalate the personal relationship between you, the two objectives can easily get in each other’s way. Rule 1.7 allows the representation to take place anyway with the client’s consent and as long as…
(b)(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client.
…despite the romantic inclinations of the lawyer.
It can’t be reasonable, of course. Still, the lawyer’s judgment, or lack of it, in such matters is almost never questioned. It is a mistake, though, and that was demonstrated in the next ethical crisis involving the two would-be lovebirds, when after a conference about McVeigh’s case, he puts the moves on his lawyer. “I can’t sleep with you, ” she sighs. “It’s unethical.”
Indeed it is. Rule 1.8 j states…
…A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.”
But Kurt is something of a lawyer himself. “I haven’t signed the retainer,” he reminds her. The next thing you know, she is leaving his apartment, looking tussled and ravished and glowing with the inner Scarlet O’Hara ecstasy that can only come from the love of a manly N.R.A., er, member.
This is a gaffe by the usually impeccable “Good Wife” writers, and my guess is that they knew it: it was just too cute to pass up. The attorney-client relationship between Lockhart and McVeigh began the second she gave him legal advice, and she had already given him plenty. The signing of the retainer was only a formality…indeed, most states don’t require a signed retainer. The attorney-client relationship, therefore, had started, and there was no way Diane could have sex with manly Kurt for the first time without violating the letter of Rule 1.8 j. Diane knows, like any experienced lawyer, that she has a client as soon as she gives someone legal advice.
Then the show really jumped the legal ethics rails. As Scarlett-Diane is stumbling out the door, she asks Kurt if he has the signed retainer for her. He says he hadn’t signed it yet…and back they go to bed. What?
- If Diane believed that their sexual bliss occurred before the representation commenced (it didn’t, but we’ll adopt the show’s view, wrong though it is), then his signature means nothing now: the rule, which Diane obviously knows, says that a sexual relationship with a client is ethical if it begins prior the attorney-client relationship. It (supposedly) did: he can sign away, and they can, well, you know, to their hearts’ content.
- “The Good Wife’s” version of the rule against sex with clients is now clearly bizarre: you can have sex with your potential client, but once he signs, it’s Celibate City. The point of the real rule is to stop lawyers from abusing their position of trust to get sexual favors and then to wield undue influence with the client. Once the boinking has begun, those objectives are officially moot.
But it was a terrific episode anyway, as usual.
For a jaw-dropping (no pun intended) real life “sex with clients” story that got the lawyer suspended, go here.