Sex With On-and-Off Paramour Who Became Client Wasn’t Unethical

By Joan C. Rogers

A public defender’s sexual relationship with a client wasn’t unethical given their on-again/off-again relationship beginning more than 10 years earlier when the lawyer was in junior high school, a sharply divided West Virginia Supreme Court of Appeals ruled Nov. 17.

The lawyer’s resumption of intimacies amounted to a preexisting sexual relationship and therefore didn’t violate the ethics rule against sex with clients even though the sexual relationship was in a dormant phase at the time she was appointed to represent the man, the court decided ( Lawyer Disciplinary Bd. v. Campbell , 2017 BL 413673, W. Va., No. 16-1036, 11/17/17 ).

West Virginia, like many other states, forbids sex with clients unless the sexual relationship began before the attorney-client relationship did. This case applies the preexisting-relationship exception in a factually unusual context.

West Virginia Rule of Professional Conduct 1.8(j) states: “A lawyer shall not have sexual relations with a client whom the lawyer personally represents during the legal representation unless a consensual sexual relationship existed between them at the commencement of the lawyer/client relationship.”

Sarah Campbell said she knew the rule but believed her conduct wasn’t forbidden because she had been sporadically intimate with the man for more than 10 years before she began representing him.

Preexisting Although Dormant

The majority concluded that “for purposes of Rule 1.8(j), a longstanding and continuous, albeit intermittent sexual relationship, though dormant at the commencement of an attorney-client relationship, is a preexisting relationship.”

“Not only does the evidence fail to support a finding that Ms. Campbell took advantage of Mr. H., but the type of longstanding relationship between the two simply does not present the same concerns associated with new relationships that truly begin after representation begins,” Justice Elizabeth D. Walker wrote for the 3-2 majority.

However, the court admonished Campbell for misleading her supervisor about the relationship in violation of Rule 4.1 (false statement of material fact or law to third person) and Rule 8.4(c) (dishonesty, fraud, deceit or misrepresentation).

Justices Robin Jean Davis and Menis E. Ketchum II joined the majority opinion.

Dissent: ‘Not a Dating Service’

Chief Justice Allen H. Loughry II, joined by Justice Margaret L. Workman, argued in dissent that Campbell should be suspended because she had sex with a client during the legal representation and their sexual relationship did not exist at the beginning of the lawyer-client relationship.

“The practice of law is not a dating service,” Loughry said.

Chief Lawyer Disciplinary Counsel Rachael L. Fletcher Cipoletti, Charleston, W. Va., represented her office. Sidney H. Bell, Beaver, W. Va., and M Timothy Koontz, Williamson, W.Va., represented Campbell.

To contact the reporter on this story: Joan C. Rogers in Washington at jrogers@bloomberglaw.com

To contact the editor responsible for this story: S. Ethan Bowers at sbowers@bloomberglaw.com

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