Sex With Ex-Clients, Potential Clients Isn't Unethical Under Louisiana Rules

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By Joan C. Rogers

Dec. 19 — A Louisiana lawyer didn't violate any ethics rules by having sexual relationships with several former divorce clients and a prospective divorce client who decided not to hire him, a divided Louisiana Supreme Court held Dec. 9.

The majority rejected the argument that the ethical prohibition against attorney-client sexual relationships should be extended to former clients and prospective clients. “We find no support for this position in the Rules of Professional Conduct,” the per curiam opinion states.

However, the lawyer got a six-month suspension from practice, with three months deferred, for having sex with one current client during the waiting period before her divorce became final, and for shifting another client's case to someone else in his firm when the client expressed interest in dating him.

In separate concurrences, Justices Jeannette Theriot Knoll and John L. Weimer contended that it's unethical for lawyers to begin an intimate relationship with a former client whose legal case is still pending and could be harmed.

Chief Justice Bernette J. Johnson concurred without a written opinion.

‘Professional Boundary Issues.'

Disciplinary charges against Randy F. Fuerst were lodged after a former client's ex-husband filed a complaint against him.

During the disciplinary proceeding, it came out that in the years after Fuerst and his wife divorced, he became involved in consensual sexual relationships with six women who had at one time either retained his services or consulted with him about their divorce cases.

The hearing committee found that, with one exception, these sexual relationships did not occur while the attorney-client relationship was ongoing. Some of the women described their relationship with Fuerst as positive or beneficial and said they did not feel he had taken advantage of them. The relationships typically ended amicably, according to the court.

An evaluation that Fuerst underwent at an addiction treatment center indicated that he “is neither a sex addict nor a sexual predator but does have professional boundary issues,” the court said.

Violations in Two Matters

The court found no misconduct in Fuerst's relationships with five women who were not his current clients when he had a sexual relationship with them.

Contrary to disciplinary counsel's argument, Louisiana's ethics rules do not forbid attorney-client sexual relationships with former clients, or with prospective clients where no attorney-client relationship is formed, the court found.

However, the court held that Fuerst committed misconduct by engaging in a sexual relationship with one woman who was a current client at the time. With regard to that client, the hearing committee found that Fuerst violated Rule 1.7(a)(2) (conflict of interest with current client) and Rule 8.4(d) (conduct prejudicial to justice). The board also found that Fuerst violated Rule 2.1 (duties as advisor) in that matter. Louisiana does not have any specific rule on sex with clients.

The court also found that Fuerst violated Rule 1.10 (imputation of conflicts) when he referred a client's matter to another lawyer in a law firm with which he had an of counsel relationship, after the client decided to change counsel when Fuerst told her that he could not date a current client.

When Fuerst was discharged by that client, he was obligated to refer her divorce case to a lawyer outside his law firm before becoming involved in a personal relationship with her, the court said.

The court decided that a six-month suspension, with half of it deferred, was the appropriate sanction for Fuerst's misconduct. “While respondent's misconduct did not cause actual harm, the potential for harm was great,” the opinion states.

The court deferred all but three months of that sanction in light of what it said were significant mitigating factors: clean disciplinary record, no dishonest or selfish motive, full disclosure and cooperation, character and remorse.

Harm to Ex-Client

In her concurrence, Knoll agreed with the decision to suspend Fuerst but gave different reasons. “I strongly disagree with the majority's finding respondent committed no misconduct with regard to his relationships with his former clients,” she wrote.

A lawyer's specific duties to former clients under Rule 1.9 are premised partly on a duty of loyalty that includes an obligation not to actively harm the former client's best interests after the professional relationship ends, Knoll said.

Knoll pointed out that Fuerst commenced a sexual relationship with two clients after his representation ended but before the underlying proceedings were concluded.

Doing so, she said, can create a range of problems that may harm the client's best interests, such as raising fault issues, impairing the ex-client's ability to seek support, transforming the lawyer into a witness, influencing financial issues and increasing acrimony between the spouses.

“Considering these factors, I would find respondent had a duty to refrain from entering into a sexual relationship with his former clients until the underlying proceedings are concluded,” Knoll wrote. By not doing so, she said, Fuerst put his personal interests ahead of his professional obligations, potentially jeopardized his clients' legal matters and burdened them by forcing them to find new legal representation.

“The frequency of respondent's sexual involvement with numerous female clients evidences a pattern of conduct by means of his practice which degrades his obligations to the client and demeans our time-honored profession,” Knoll stated.

Harm to Legal System

In a separate concurring opinion, Weimer said he agreed with Knoll's concurrence but added his view that an attorney's duty to refrain from entering into a sexual relationship with a former client stems from the prohibition against conduct prejudicial to the administration of justice in Rule 8.4(d).

“This duty would terminate when the underlying proceedings are concluded or when the sexual relationship would pose no adverse legal consequences to the client,” Weimer said.

Here, Weimer said, “the respondent was required to refrain from post-representation sexual conduct with the client that could foreseeably and negatively impact the legal proceeding for which the client had retained the respondent's representation.”

Fuerst was represented by Fuerst & Godley; Law Offices of James E. Boren; and Vamvoras, Schwartzberg & Hinch LLC.

Chief Disciplinary Counsel Charles B. Plattsmier and Deputy Disciplinary Counsel G. Fred Ours, Baton Rouge, La., represented their office.

Full text at http://www.bloomberglaw.com/public/document/In_re_Fuerst_No_14B0647_2014_BL_349720_La_Dec_09_2014_Court_Opini.

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