brief encounters

If your lawyer becomes your lover, can he or she act in your best interests? Anna Blundy on moves to curb legal affairs
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Indy Lifestyle Online
WHEN Peter and Barbara Jordan were finalising their divorce, Barbara approached Mayfair solicitors, Sears Tooth. Peter's suspicions were first aroused when his wife told him she had been out for dinner with the firm's senior partner, Raymond Tooth, nicknamed Jaws for his alleged ruthlessness. Tooth then took Barbara for dinner again - in Antigua.

The outraged Peter decided the affair constituted a "conflict of interests" for the solicitor, despite the fact that Tooth was not dealing with the Jordans' case directly. Peter contacted the Solicitors Complaints Bureau (SCB) but got short shrift. Tooth's two-year affair with Barbara is now over but they are still friends. Their relationship was an equal one, but it is this kind of situation that led the Legal Services Ombudsman, Michael Barnes, to call for a change in the law in his report late last year.

Barnes believes current guidelines are inadequate. His report cites recommendations for solicitor-client propriety from Principle 15.05 of the Law Society's Guide to the Professional Conduct of Solicitors. "A solicitor must not act where his or her own interests conflict with the interests of a client or a potential client . . . a solicitor who becomes involved in a sexual relationship with a client should consider whether this might place his or her interests in conflict with those of the client or might otherwise impair the solicitor's ability to act in the best interests of the client."

Barnes suggests the Law Society should take a stronger line on the issue, especially in divorce cases and other aspects of family law. "In matrimonial cases the client may be in a state of emotional turmoil, and is likely to become further confused as to his or her feel- ings and long-term interests if a personal relationship develops with the solicitor," he says. "The new relationship may also prevent a reconciliation, which might otherwise have taken place."

In the case of Peter and Barbara Jordan, all parties agree that there was no chance of any kind of reconciliation. "It would be ridiculous to legislate against these sorts of relationships," Tooth says jovially. "What happens between two adults is their own business. Our job is completely different to, say, a doctor's, where the client is revealing private things about their physical health. If one were attracted to one's bank manager, would that be illegal?" Tooth is dismissive of claims that there was any conflict of interest in the case of himself and the Jordans. Their divorce, he says, was over when he met Barbara "except for the awful entrails", and he does not feel he acted improperly in any way. ''People always complain that lawyers don't take enough interest in their cases," he says. "Perhaps with a highly personal interest the solicitor might take a bit more notice and do a better job!"

Penelope Cooper would not agree. Cooper, who employed Princess Diana's divorce lawyer, Paul Butner, over "a complicated family matter" in 1986, felt betrayed when the affair they enjoyed ended and his subsequent professional conduct towards her became less than satisfactory, to the extent that her action against him is only now coming to a close. "I thought that by going to an expensive lawyer I was going to get good advice. After our personal relationship ended he did not reply to my letters and he refused my phone calls for nine months."

Cooper believes the Law Society needs "more teeth" as a regulatory body. "People should know that they will not be able to get away with it. Women in those situations are vulnerable and need protection." She will soon be reimbursed for the stress she has suffered. The complaints' bureau upheld three complaints of serious professional negligence and in its interim judgement against Butner concluded that "there were long and substantial delays" in sorting out Cooper's case. Butner did not apply for legal aid on Cooper's behalf until January 1991, although she had always made it clear she had no money, and Butner failed to advise her properly. Cooper is astonished Princess Diana has elected to use Butner. "If he can't sort something out for me how he is going to sort something out for the future queen of England?"

The SCB has had six complaints concerning solicitor-client relationships over the past year. "We don't get all that many," says the bureau's Zoe Etherington. "I suppose most people are happy about the friendships they form."

But Sarah Robinson of the Solicitors Family Law Association is less convinced. "In the family law context we have had to run seminars for solicitors acting for clients whose emotions are raised. The solicitor has to be alive to what his or her own feelings are towards the client's predicament and has to be able to act properly. It is completely inappropriate to have a relationship with a client while representing them. How could you possibly be objective?"

Robinson says she would welcome legislation in family law, agreeing with Mr Justice Thorpe, who sits in the High Courts family division, that divorce lawyers "are most exposed to the risks and temptations of entanglement". People fighting divorce battles are vulnerable, he says. "A great deal of hope and faith is invested in their chosen advocate, who becomes for a short phase in their lives protector and champion. The opportunity for the lawyer to abuse that trust is obvious."

He wants to see solicitor-client relationships banned entirely, just as they are in California. Well, look what happened to defence lawyer Glenn Close in the thriller Jagged Edge when she sloped off to bed with her client (charged with wife murder) Jeff Bridges. America has long been dealing with sexual transgressions within the law. In 1879 the Court of Appeals of New York disbarred an attorney who had acted in divorce proceedings for the husband. He spent the night in a hotel with his client's wife "for the purpose of procuring evidence" to be used in the proceedings. Solicitor Simon James (not his real name), who wishes to remain anonymous to avoid the wrath of the ex-husband whom he describes as "a warped and vengeful maniac", is not ashamed of his actions. The Davises (also a pseudonym) had been married 10 years when Simon fell in love with Caroline Davis while his firm was initiating her divorce proceedings. "I don't feel there was any kind of conflict of interest as I immediately passed the case to another firm. I was too in love to act objectively but I appreciate that for others that might not always be true. Each solicitor must decide for themselves." Simon and Caroline have now been together for nearly 10 years themselves, but they are still persecuted by Caroline's ex-husband who had all his complaints to the official bodies dismissed. "I absolutely adore her," says James with a smile, "but it has not been easy."

Unfortunately not all relationships formed in the professional context are so equal. Anna Gorman was 21 and a single mother when she sought the help of Bedfordshire solicitor Chris Byron of Byron and Co. She was trying to arrange maintenance for herself and her daughter but Byron became infatuated with her. As part of his attempted courtship he sent Gorman a salacious letter boasting about the size of his penis and was fined pounds 1,000 under the Post Office Act for sending obscene material. "The only thing that would satisfy me would be to see him struck off," Gorman says. Although Gorman did complain to the SCB, Byron is still practising. "The event is over and in the past," he says.

The Law Society recommendations designed to prevent incidents like this have now been changed, but in a more minor way than Barnes would have wished. Barbara Eastgate, policy executive for the professional ethics division at the Law Society, says: "After detailed consideration it was decided that our current legislation is adequate."

But in the 7th edition of the Guide to Professional Conduct of Solicitors, to be published by the Law Society next year, the phraseology of the current guidelines will be changed. It is expected that it will read as follows: "A solicitor must not abuse the solicitor-client fiduciary relationship by taking advantage of the client," and then two examples will be given. The first will deal with a solicitor overcharging a client and the second will address sex: "It may be considered an abuse of the solicitor-client fiduciary relation- ship to enter into a sexual relationship with a client."

"That," sighs Tooth, "should be more than sufficient."

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