Hello everyone and welcome to this Ethics Alert which will discuss the recent Kansas Supreme Court opinion suspending a lawyer for engaging in a sexual relationship with the president of a corporation that she represented as general counsel, drafting an employment contract for the person, and failing to report the person’s misconduct. The opinion is In re Allison L. Bergman, No. 115,448 (Oct. 28, 2016) and the Kansas Supreme Court opinion is here: https://www.kscourts.org/Cases-and-Opinions/Opinions/SupCt/2016/20161028/115448.pdf.
According to the opinion, the lawyer served as outside general counsel for the Kansas City Terminal Railway Company. During her representation of the company, she began a sexual relationship with the company’s president and board chair (Mader). “From 2002 until January 2012, Respondent and Mader were in a personal, close relationship. At times the relationship was romantic and sexual. At all times from 2002 to January 2012, the relationship between Mader and Respondent was a very close, deep, meaningful, sustained, loving, caring, intimate and special friendship with frequent social and personal interactions with each other.”
The lawyer failed to disclose the relationship to the corporation’s board. She later drafted the president’s employment contract and, in addition, the lawyer failed to report to the board the president’s breach of various fiduciary duties that he owed to the corporation.
The opinion states that the Kansas Rules of Professional Conduct, like the ABA Model Rules (and most state Bar Rules), prohibit a lawyer from having “sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.”
“We agree with the hearing panel that probation is not an appropriate disposition. As the panel concluded, the respondent’s misconduct is serious, involving significant conflicts of interest as well as dishonest behavior. Further, the panel found respondent failed to take full responsibility for her actions, and the record supports that finding. We, therefore, conclude it would not be in the best interests of the citizens of the state of Kansas for the respondent to be placed on probation. We agree with the panel’s recommendation that the respondent’s license to practice law in the state of Kansas be suspended for an indefinite period of time.”
Bottom line: This case raises interesting questions regarding the scope and application of Bar Rules which prohibit a lawyer from engaging in a sexual relationship with a client under unless the relationship commenced before the representation began. The Bar Rules in most (if not all) jurisdictions state that when a lawyer is hired by a corporation, the “client” is the corporation, not the president or other board members and directors. This raises the question of whether the lawyer can be found guilty of violating the Bar Rule prohibiting sex with a client if he or she did not actually have sex with the “client” corporation but admitted to having sex with the president? I would think not…and I would urge lawyers not to test the application of the rule!
Be careful out there.
Disclaimer: this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.
Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
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Clearwater, Florida 33761
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Jay Foonberg
To me it’s simple. An attorney has an absolute 100% duty of loyalty to a client. ANYTHING which might possibly impair that duty is a conflict and must be dealt with by disclosure and resolution regardless of any specific rules.
Excuse me while I go hitch up my dinosaur.