Friday, September 19, 2008

Exotic dance and the lawyer-client relationship

A Chicago-area lawyer has been suspended following complaints by a client, who happens to be an exotic dancer. The Chicago Tribune provides this lead for the story:
A DeKalb lawyer was suspended for 15 months Thursday for arranging to have a female client perform nude dances for him in exchange for credit on her legal fees, a state commission said.
Puzzlingly, only in the latter half of the article is it mentioned that this same client also made allegations of sexual assault against the lawyer. (A grand jury failed to indict him.) It is not at all clear from the article to what extent the disciplinary action was taken on the basis of the assault allegations vs. the exchange of dances for legal services. Sexually assaulting or even sexually harassing a client would certainly be sufficient grounds for discipline, in and of itself.

Whether the exchange of exotic dance - including, here, nudity and at times the privacy of the attorney's office - for legal services is itself grounds for discipline is an interesting question. Nothing in the Illinois Rules of Professional Conduct prohibits in-kind payment, of which this is one kind; clients pay lawyers with services like plumbing. Interestingly, unlike the ABA's Model Rules, Illinois does not have a rule prohibiting sexual relations with current clients. If Illinois had such a rule, it would raise the question whether private nude dances constitute "sexual relations."

Since Illinois doesn't have a sexual-relations rule, this conduct would have to fall under either Rule 1.7(b) (personal conflict of interest interfering with competent representation) or Rule 8.4(a)(5) (conduct prejudicial to the administration of justice). I really don't think receiving exotic dances is prejudicial to the administration of justice, and if it is the legal profession has some serious culling to do. However, it is not hard to imagine this situation presenting a conflict of interest. Although on one level the transaction between exotic dancer and patron is one of fee-for-service, it is also a kind of service that is not unlikely to generate strong feelings (of lust, romantic interest, etc.) on the part of the patron- particularly the regular patron. The professional boundaries typically maintained by dancers would also be eroded by giving dances in a private setting. It is not hard to imagine the lawyer developing an attachment of one kind or another to the client that could interfere with competent representation.

This is not unique to exotic dancing, or other kinds of sexually-charged entertainment. There are other kinds of services that would probably be inappropriate between lawyer and client for the same reason - say, for instance, psychotherapy. (Many sex workers will tell you that their job can be a bit like being a shrink!) At least, they would be inappropriate as an ongoing method of payment. The story here indicates that the dance transaction began inadvertently when lawyer and client ran into one another at the client's workplace, after speaking about legal representation on the phone. I don't think this by itself would create a conflict, even if they realized it after the lawyer received a dance or two. Similarly, a lawyer could probably represent a therapist whom she saw for a few brief sessions in the recent past.

So a situation like this could present an interesting question and possibly a serious ethics problem, even in the absence of more clear-cut misconduct. Unfortunately, the Tribune decided to go for the titillation factor rather than provide the whole story.

H/t to How Appealing.

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