General Practice, Solo & Small Firm DivisionMagazine

American Bar Association
General Practice, Solo, and Small Firm Division
The Compleat Lawyer
Spring 1998
© American Bar Association. All rights reserved.

Legal Ethics

BY MARTIN PASKIND

Martin Paskind is a lawyer in Albuquerque, New Mexico. His practice focuses on the representation of small businesses and their owners.

Here is a communique from the sexual behavior battlefield. This, at best, is X-rated stuff. Those with tender sensibilities probably ought to read something else.

The Supreme Court of Tennessee last September 15 filed its opinion in Robinson v. Omer (Docket No. 01S01-9611-CV-00228). Three men played leading roles. Dewey Lineberry was a longtime friend and business associate of William Robinson, the plaintiff. James R. Omer, Sr., the defendant, is a Tennessee lawyer who for about 15 years represented Lineberry in various personal and business matters.

Lineberry decided to put up a building in Mt. Juliet. Robinson was the contractor. On the third floor, Lineberry requested and Robinson constructed a "camera room." From there, one-way mirrors looked out into a weight room and bathroom. Lineberry intended to secretly tape his sexual encounters. He thought the tapes would protect him if anyone charged rape.

Before construction began, however, Robinson alleged that Lineberry contacted Omer for advice. Can I do this? asked Lineberry. Is it legal?

Robinson's amended complaint alleged that Omer twice told Lineberry, Omer's client, that building a camera room and secretly taping sexual encounters was perfectly all right. Indeed, Robinson's pleading alleged that Omer compared the videotaping setup to keeping a diary.

Omer steadfastly maintained that he said no such thing. Nevertheless, the case gradually percolated up through the courts. The diary proved pretty extensive. From 1986 to 1993, Lineberry used the weight room and the bathroom for sexual purposes. And there, on the other side of the mirrors, stood Robinson, loyally making videos of his friend's activities. Evidently this worked for six or seven years, because no one charged Lineberry with rape.

Secrecy and Lingerie

All this was secret until January 1994, when Omer blew the whistle on Lineberry. Omer reported a "lingerie party," whatever that is, filmed without the participants' consent. He did so, however, only after Lineberry reported him to Tennessee disciplinary authorities.

Local law enforcement checked everything out. Robinson admitted he was the camera operator. Ultimately, law enforcement officials filed no criminal charges. The officers, however, told a number of women about the taping arrangements. Four of them were upset sufficiently to sue Robinson, who settled.

Robinson then sued Omer. Robinson couldn't sue for malpractice, because Omer never represented him. So he sued for negligent misrepresentation, outrageous conduct, and invasion of privacy. The trial judge threw out Robinson's whole case on summary judgment. Tennessee's intermediate appellate court reversed on the negligent misrepresentation claim only. The state's supreme court agreed with the trial judge and got rid of the count for negligent misrepresentation as well.

Restatement to the Rescue

Restatement (Second) of Torts (1997) § 552 covers negligent misrepresentation. It says:

One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.

Courts occasionally hang lawyers out to dry under 522. Nevertheless, most such occurrences involve real estate transactions. In land deals, lawyers may advise sellers, knowing quite well that opinions and advice will affect buyers' thinking.

No Deal

Omer insisted that, even if everything else was true, his advice had nothing to do with a "business transaction." Whatever the filming was or was not, it was not a deal. Lineberry didn't pay Robinson for running the camera. There was no evidence that Lineberry engaged in anything but recreation. Recreation is a personal activity, not a business transaction.

The Tennessee Supreme Court agreed. Robinson acted solely out of friendship for Lineberry, said the justices. So they concluded, "[T]he evidence in this record, viewed in the light most favorable to Robinson, fails to establish an essential element of the claim for negligent misrepresentation—that the allegedly negligent advice given by Omer was meant to guide others in their business transactions."

Several principles emerge from Robinson v. Omer. One, of course, says that lawyers may give bum advice to nonclients only when personal and not business affairs are involved. If Lineberry, for example, sold copies of his tapes, the deal would have been commercial, and Omer might well be on his way to trial. A second, obviously, is that lawyers at cocktail parties and similar gatherings who are asked questions by nonclients about legal matters need to make sure they're talking about personal affairs and not about business.

A third principle is that counsel really ought to watch out for that sex stuff, because it very often leads to trouble. John D. Landry, a lawyer in Illinois, last fall learned a lot about this principle.

Coming Across

Landry represented Belen Kling, first in a divorce where property and support were dominant issues, and later in a lawsuit to modify the dissolution order to give Kling custody of her son. The evening before the divorce trial in 1991, Kling alleged that Landry came to her home to prepare, threw the plaintiff on her bed, and, in the court's words, "initiated sexual intercourse." Kling said she feared that Landry would abandon her unless she came across. Kling seemed for the moment content with the outcome of her divorce. At any rate, she didn't complain.

Attached to the final decree was a psych-ological report. In it, Kling was found suffering from severe psychopathology, including bizarre thought patterns, poor impulse control, affective lability, and perhaps hallucinations. Affective lability, for those few who don't already know, is a condition of fluctuating and unstable emotions.

When Kling decided she wanted custody of her son, she went back to Landry. Again, Kling says, her lawyer came out to the house to prepare for a hearing. This time, said Kling's lawsuit, Landry threw her down on a kitchen rug, and again "initiated sexual intercourse."

A couple of months after the second alleged instance, Kling found a new lawyer. Her new lawyer, naturally, sued Landry for legal malpractice, breach of fiduciary duty, negligence, and intentional battery.

Kling immediately ran into dispositive motions. The trial judge three times dismissed her complaint for failure to state a cause of action. Each time, however, the court awarded leave to amend. Finally, though, the case went up to the Appellate Court of Illinois (Second District, Docket No. 95-L-1114). Appellate judges in an opinion released last November 18 upheld the trial court on all except the fourth count, for battery.

Judges first determined that Kling had not and under the facts could not plead legal malpractice. The reason: the alleged breach of duty was not "sufficiently linked to the attorney's representation."

Still, what about Kling? She said that each instance occurred the evening before trial. She feared loss of Landry's services at a critical moment. That looks like a link to me, but I'm not a judge.

In addition, said the appellate court, Kling didn't allege that Landry damaged her case, or that she incurred actual damages. Mental distress without "any quantifiable injury" wasn't enough. In Illinois, said the court, "for purposes of a legal malpractice action, the existence of an attorney-client sexual relationship is only relevant to the extent that it has an adverse effect on the quality of legal representation."

Kling also alleged that Landry malpracticed because in her second case, the motion to amend the decree was frivolous. The Illinois court found the allegation conclusory and without factual support elsewhere in the pleadings.

So the malpractice count bit the dust. But sexual relationships impair objectivity, don't they? This is not news. People learned this millennia ago. Love, after all, is blind.

Contingent Fees?

Then the court looked at Kling's claimed breach of fiduciary duty. The lawyer-client relationship is fiduciary, as everyone knows. Illinois judges ruled that a three-part test applies. First, the lawyer must make his representation contingent on sex. Kling didn't claim that. Second, the lawyer must compromise the client's legal interest because of the sexual relationship. Pleadings alleged no such facts. And third, the lawyer must use information obtained during the representation. Such information must suggest that the client may be vulnerable to seduction. Landry, said the court, didn't use factual knowledge stemming from the relationship. The mental health report wasn't available when the first incident occurred.

"We caution, however," said the court, "that sexual intercourse between two consenting adults is not, of itself, actionable conduct." The appellate judges upheld the trial court's dismissal again. Illinois appellate judges made short work of Kling's negligence claim in one paragraph. Said the court, "[W]e fail to see how the defendant breached his duty of ordinary care toward the plaintiff by engaging in sexual intercourse with her."

Battered by Battery

So far, Landry was doing well. Then the court took up Kling's allegations of battery. In Illinois, battery is an intentional tort. "The plaintiff," said the judges, "must allege a willful touching of another person without the consent of the person who is touched."

Kling alleged that sexual intercourse was touching "without permission and provocation." That allegation, said the court, was good enough. In Illinois at least, you needn't allege lack of consent in so many words. Appellate judges remanded the case to the trial court for additional proceedings on the battery claim. That, perhaps, left Landry out on a limb.

Insurance Exclusions

Liability insurance policies, whether for malpractice or for other hazards, routinely exclude intentional wrongs from coverage. So as Landry prosecuted his motions to dismiss for failure to state a claim, he may have outrun his insurance coverage. If that happened, the appeal, from Landry's standpoint, looks like a Pyrrhic victory.

If Landry lost coverage, he did so on the most dangerous claim. Legal malpractices and breaches of fiduciary duty award damages chiefly to make claimants whole. Battery, because it's intentional, supports punitive damages. This sounds risky.

Lawyers can avoid risk in several ways. They can take vows of chastity, and give up sexual relations entirely. Or contracts of engagement may include language dealing with what happens if the legal relationship turns sexual. Just imagine eight or ten contract pages along these lines.

Or lawyers may resolve not to have sexual relations with past, present, and future clients under any circumstances. That probably is the safest course. You'll sleep at night, even if you sleep alone. CL

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