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Sexual Misconduct in Professional Liability Cases: Key Strategies in Defending & Litigating These Claims
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Sexual Misconduct in Professional Liability Cases: Key Strategies in Defending & Litigating These Claims


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USLAW Network Client Conference, Vancouver, BC, October 2013

USLAW Network Client Conference, Vancouver, BC, October 2013

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  • Sexual Harassment E.g. s. 6.3-3 of BC’s Code of Professional Code of Conduct states that a lawyer must not sexually harass any personOther Sexual Misconduct CBA There are general rules that may guide a lawyer’s behavior in this regardthe duty to discharge with integrity all duties owed to clients, the court, other members of the profession and the public; not acting for a client where the lawyer's duty to the client and the personal interests of the lawyer are in conflict; avoiding questionable conduct; and the duty not to discriminate, including harassment and sexual harassment BC Rule 3.4-1 - A lawyer must not act or continue to act for a client where there is a conflict of interest, except as permitted under this Code.  Commentary to Rule 3.4-1 Says that conflicts of interest can arise in many circumstances. States that a lawyer having a sexual relationship with a client is an example of a conflict of interest rule OntarioRule 2.04 - provides a list of factors for a lawyer to take into consideration prior to accepting or continuing a retainer with a person with who a lawyer has a sexual relationshipThe vulnerability of the client, both emotional and economic; The fact that the lawyer and client relationship may create a power imbalance in favour of the lawyer or, in some circumstances, in favour of the client; Whether the sexual or intimate personal relationship will jeopardize the client’s right to have all information concerning the client’s business and affairs held in strict confidence. For example, the existence of the relationship may obscure whether certain information was acquired in the course of the lawyer and client relationship; Whether such a relationship may require the lawyer to act as a witness in the proceedings; Whether such a relationship will interfere in any way with the lawyer’s fiduciary obligations to the client, his or her ability to exercise independent professional judgment, or his or her ability to fulfill obligations owed as an officer of the court and to the administration of justice.
  • Law Society of Upper Canada v. NeinsteinMitigating factors No prior disciplinary history throughout lengthy career Taken steps to rehabilitate self Taken steps to redesign office space to make it more transparent
  • Transcript

    • 1. Sexual Misconduct in Professional Liability Cases: Key Strategies in Defending & Litigating These Claims
    • 2. Overview  Attorney Misconduct:  The Attorney-Client (Sexual) Relationship  When Libido Subverts Credo  Sex, Lies and Bar Complaints  Coverage Concerns  Litigating Cases of Sexual Misconduct  Physician Misconduct:  Boundary Violations  Penalties  Coverage Concerns  When a Doctor’s Love Affair is Malpractice  Litigating Cases of Sexual Misconduct
    • 3. Attorney Misconduct  Roughly 1.3 million lawyers nationally:  Over 100,000 complaints alleging attorney misconduct are filed annually.  1,500 surveyed:  7% admitted to having sex with a client  32% knew another lawyer that had sex with a client  Basis for most lawsuits/disciplinary actions against an attorney:  The attorney-client relationship itself!  Consider: The attorney-client relationship depends on emotion—trust, confidence, reliance, etc.  Sex quickly confuses professional boundaries
    • 4. Attorney-Client (Sexual) Relationship  ABA Model Rules of Professional Conduct:  Rule 1.8(j): “A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.”  Comments to the Rule emphasize:  Fiduciary nature of the relationship  Unequal positions  Clients often financially & emotionally vulnerable  Is consent meaningful?  Clouded professional judgment
    • 5. Attorney-Client (Sexual) Relationship  49 states, the District of Columbia, and the Virgin Islands have adopted the Model Rules.  State Variations of the Rule:  Florida: rebuttable presumption that sexual conduct “exploits or adversely affects the interests of the client,” if it post-dates the inception of the attorney-client relationship;  Texas: Voted against an express ban;  California: a limited rule, “intended to prohibit sexual exploitation by a lawyer in the course of a professional representation;”  New York: prohibition specific to clients in domestic relations matters.
    • 6. The Canadian Regime • Sexual Harassment – Prohibited by Canadian and provincial codes of conduct • Other Sexual Misconduct – CBA’s Code of Professional Conduct • Issue not expressly addressed – B.C.’s and Ontario’s codes of conduct • Issue addressed through conflicts of interest rules • Commentary – – – – May affect lawyer’s ability to give objective advice May interfere with lawyer’s fiduciary obligations Conflict is not imputed to the firm Not a conflict if another lawyer in the firm is handling the file
    • 7. When Libido Subverts Credo  Case Examples:  Attorney D.K. exchanged legal services in a DUI case for oral sex.  Penalty: 1 year suspension  Attorney T.L. had an affair with a divorce client AND billed her for their sexual encounters.  Penalty: Indefinite suspension  Attorney C.C. was arrested for having sexual contact with his client, a prisoner, during a meeting at the detention center.  Penalty: Could face four years in prison; banned from the facility
    • 8. When Libido Subverts Credo  Case Examples:  Attorney W.W. conditioned his representation of a client on sex and later secretly taped a sexual encounter. When law enforcement arrived, W.W. hid the tape in his pants.  The Indiana Supreme Court accepted the attorney’s resignation.  Indiana Judge accused of having a “physically intimate relationship with a 26-year-old client.”  Declined to renew judgeship for 2013…
    • 9. Sex, Lies and Bar Complaints  Disciplinary Measures:  Actions against an attorney’s professional license:  Disbarment, suspension, probation, public censure, disgorgement of funds, future limitations on the nature/extent of a lawyer’s practice  Ex. ABA Model Rules of Lawyer Disciplinary Enforcement  Civil lawsuits:  Breach of fiduciary duty, intentional infliction of emotional distress, battery, fraud, potentially malpractice  Ex. McDaniel v. Gile, 281 Cal.Rptr. 242 (Ca. App. 2d. 1991)  Criminal penalties:  Rape, sexual assault/abuse, extortion, solicitation of prostitution  Ex. The Florida Bar v. Scott, 810 So. 2d 893 (Fla., 2002)
    • 10. Libido Up North • Law Society of Upper Canada v. Neinstein (2008), 241 O.A.C. 199, reversed on other grounds 2010 ONCA 193 – Lawyer sexually harassed two individuals – Court reduced suspension from 12 months to 3 months, citing mitigating factors – Stated that longest suspension by law society to date was 18 months • Budd v. Law Society of Upper Canada, 2012 ONSC 412 – Lawyer sexually exploited two minors and was sentenced to nine months imprisonment – Where sexual exploitation is established, the presumptive penalty is revocation/disbarment, or permission to resign
    • 11. Horny Canadian Lawyers, Eh? • Law Society of Upper Canada v. Hunter, [2007] L.S.D.D. No. 8 (L.S.U.C. Hearing Panel) – Former Treasurer of the Law Society of Upper Canada was suspended for 60 days for having an affair with a client – Prior to revealing to the client that he had been involved with other women during the course of their relationship, lawyer had client sign acknowledgement form to the effect that he complied with conflict of interest rules • Regular v. Law Society of Newfoundland and Labrador, 2010 NLTD 90, aff’d 2011 NLCA 54 – Lawyer and client involved in a 15-year personal, consensual and sexual relationship – During relationship, lawyer assisted client with several legal matters, including her divorce – Lawyer found to have failed to act with integrity, but was not in a conflict of interest when representing his client in a divorce action – No conflict of interest found in this case as the client insisted on this lawyer representing her and thus waived her rights with respect to any conflict of interest on behalf of the lawyer
    • 12. Getting to Know the Wife • Szarfer v. Chodos (1986), 54 O.R. (2d) 663 (H.C.J.), aff’d 54 D.L.R. (4th) 383 (Ont. C.A.) – Court found that the defendant lawyer breached his fiduciary duty when he used confidential information obtained from his client (that there were marital problems) to his client’s disadvantage (to sleep with his wife) – Client suffered nervous shock upon discovery of affair and continued to suffer from depression thereafter – Court awarded special damages of $13,663 and general damages of $30,000 • Passarelli v. Startek (2009), 183 A.C.W.S. (3d) 569 (Ont. Sup. Ct. J.) – Engaging in a sexual relationship with a client’s wife likely constitutes professional misconduct, but does not necessarily amount to a breach of fiduciary duty
    • 13. Getting to Know the Wife (Cont’d) • Law Society of Upper Canada v. Daboll, [2006] L.S.D.D. No. 82 (L.S.U.C. Hearing Panel) – A lawyer who was retained by a client in child custody and support proceedings was suspended for two months for having a sexual relationship with his client’s wife – Panel reduced length of suspension because of lawyer’s remorse and cooperation with law society during investigation • Law Society of Upper Canada v. Kaminer, [2012] L.S.D.D. No. 210 (L.S.U.C. Hearing Panel) – The lawyer was jointly retained by two spouses to initiate divorce proceedings and subsequently engaged in a sexual relationship with one of the spouses – During the course of the relationship, the lawyer revealed to the wife some confidential information about the husband – Hearing panel found that a lawyer breached the duty of loyalty to his client – Lawyer suspended for six months
    • 14. Coverage Concerns  Whether prosecuting or defending an action, consider:  PL policies generally cover an insured’s errors, omissions, or negligent acts, that occur in the performance of rendering professional services.  Is a professional act or service involved?  Is there a causal link between the act and the nature of the professional attorney-client relationship?  Were the client’s litigation interests affected?  What does the policy exclude?  How does the policy define “wrongful act?”
    • 15. Sample Policy Language
    • 16. Securing Coverage in a Sexual Misconduct Case  Coverage dictated largely by the pleadings:  Plead at least one potentially legitimate covered claim.  Negligence v. Intentional Act;  A clear connection between the attorney’s services and the harm alleged;  Harm in the form of damaged litigation interests;  An emotional/psychological injury, rather than bodily harm itself.  Avoid pleading the typical malpractice case.  Focus on the abuse and breach of the fiduciary relationship.
    • 17. Denying Coverage in a Sexual Misconduct Case  No “professional services” involved:  The character of the act is intimate & personal in nature.  The rendition of legal services is not the cause of harm.  Sexual misconduct is not, in and of itself, legal malpractice.  Standard of care?  Sexual abuse is intentional, malicious, and often criminal  Focus on the policy language & exclusions:  Sexual misconduct is often excluded by policy terms.
    • 18. Canadian Coverage – Offending Lawyer “Screwed” • Duty to defend – exists if there is a mere possibility that there may be coverage – i.e. if it is not clear that the claim falls outside the policy, an insurer has a duty to defend • Non-Marine Underwriters, Lloyd’s London v. Scalera, 2000 SCC 24 – Insurer not required to defend insured against claims for sexual assault through sexual battery – If established that insured obtained consent from victim, then there would be no cause of action and thus no duty to defend by insurer – If established that no consent was obtained, then intention is inferred, and insurer not obliged to defend either
    • 19. Physician Misconduct  AMA Code of Conduct, Opinion 8.14:  “Sexual contact that occurs concurrent with the patientphysician relationship constitutes sexual misconduct.”  Hippocratic Oath:  “I will come for the benefit of the sick, remaining free of all intentional injustice…and in particular of sexual relations…”  1,600 Surveyed:  52% response rate:  4% had dated patients;  3% had sex with current patient;  3% had sex with former patient;  20% knew of colleague dating/intimate with patient.
    • 20. The Slippery Slope  Unlike the legal profession, medicine often requires physical contact.  The slippery slope: Medical Treatment  Sexual Harassment  Confusion;  Crossings;  Violations.  Patients uniquely vulnerable:  Unconscious, mentally handicap/unstable, critically injured or ill  Patients often treated in compromising positions:  Physician sexual misconduct is typically considered “abusive” and results in criminal penalties.
    • 21. Physician Misconduct  Sexual interactions between physicians and patients:  Detracts from the goals of the physician-patient relationship;  Exploits the vulnerability of the patient;  Obscures the physician’s objective judgment; and  Is detrimental to the patient’s well-being.  Strict Standards:  If non-sexual contact with a patient may be perceived as or may lead to sexual contact, the physician should avoid the non-sexual contact.  At a minimum, a physician must terminate the physicianpatient relationship before initiating a sexual relationship.
    • 22. Boundary Violations  Case Examples:  Chicago gynecologist’s “consensual” sexual act leads to suspended license and a criminal conviction of sexual assault.  Doctor trades prescription pills for sex:  Sentenced to 8 years in prison and ordered to pay a $400k fine.  Doctor recommends patient perform oral sex to prepare for upper-gastrointestinal endoscopy:  Public censure issued by the California Medical Board.  Doctor had sex with patient to “save her marriage.”  Suspension “immediately lifted.” Be mindful of collusion!
    • 23. Disciplinary Measures  Actions against a physician’s medical license:  Revocation, suspension, probation, public censure, administrative fines, requirement of a chaperone  Fla. Stat. § 458.331(1)(j): Authorizes discipline and presumes a patient is incapable of consenting to sexual activity with his/her physician.  Civil lawsuits:  Intentional infliction of emotional distress, battery, invasion of privacy, harassment, potentially malpractice  Also causes of action against employers: negligent hiring/credentialing, negligent supervision/retention, etc.  Criminal penalties:  Rape, sexual assault/abuse  See e.g., Texas Penal Code § 22.011: Sexual assault by a health care provider is punishable under the Penal Code as a second degree felony.
    • 24. Coverage Concerns  Is a professional act/service involved?  “Professional” Act/Service: one that arises from a vocation, calling, or skill and the labor or skill is predominantly mental or intellectual rather than physical or manual.  Act/omission must be specialized (i.e., requiring professional skill/judgment);  Look to the nature of the act, not the actor;  Locality of the act is not determinative.  Example, Buchanan v. Lieberman, 526 So. 2d 969 (Fla. 5th DCA 1988)  Is there favorable policy language?  Don’t assume an exclusion!
    • 25. Sample Policy language
    • 26. Securing Coverage in a Sexual Misconduct Case  Allege injury resulting from a vocation, calling, or occupation, involving specialized knowledge.  Consider: Is a predominately intellectual labor or skill involved?  Keep in mind: Sexual misconduct is sexual misconduct, whether in a bar or the operating room.  Key: Identify & allege a causal relationship between the treatment provided, the nature of the professionalpatient relationship, and the injury at issue.  Alternative: trigger coverage by alleging negligent hiring, retention, supervision, and/or credentialing.
    • 27. When a Doctor’s Love Affair is Malpractice  In general, sexual misconduct is not malpractice, but:  Dupree v. Giugliano, 20 N.Y.3d 921 (N.Y. 2012)  A physician’s 9 month affair with a female patient whom he was treating for anxiety/depression was medical malpractice:  NY medical malpractice standard: the challenged conduct must “constitute medical treatment or bear a substantial relationship to the physician’s treatment of the patient.”  Doctor prescribed antidepressant medication, even switching medications in response to patient’s concerns of a diminished libido.  Jury heard considerable testimony about “eroticized transference” and a psychotherapist’s duty to manage the same.
    • 28. When a Doctor’s Love Affair is Malpractice  Did the physician engage in sexual conduct on the pretext that it was a necessary part of the treatment sought?  If so, raise the issue in your Complaint and develop the theory through discovery.  Atienza v. Taub, 239 Cal.Rptr. (Cal. App. 2d Dist. 1987)  Be cognizant of your state’s medical malpractice standard:  Allow the standard of care in the community to frame your pleadings and dictate the nature of your allegations.
    • 29. Denying Coverage in a Sexual Misconduct Case  Sexual misconduct/sexual assault of a patient is not causally connected to the provision of “professional services.”  Example, Lindheimer v. St. Paul Fire and Marine Ins. Co., 643 So. 2d 636 (Fla. 3d DCA 1994).  Respondeat Superior:  Generally, conduct performed solely for the benefit of an employee (including sexual misconduct) is not considered to be within the “scope of employment.”  Review the policy!  Continues to be a common (and enforceable) exclusion  Likely to fall under an “intentional act” exclusion
    • 30. Final Thoughts  Whether prosecuting or defending, always:  Understand the policy or policies;  Evaluate whether a “professional service” is involved;  Identify & evaluate the applicable “standard of care.”  Far better to prevent a sexual misconduct claim rather than to defend against one.  Unfortunately, perilous territory hasn’t been much of a deterrent to intimate relationships, whether consensual or procured through duress.  These claims “aren’t going anywhere.”
    • 31. Thanks for Listening!