I thought I was “taking one for the team”

For a family law attorney, having sexual relations with a client’s spouse is probably the height of (over)zealous advocacy (assuming that the spouse is the opposing party).

That spouse’s adultery would probably be an absolute bar to alimony.  See S.C. Code Ann. § 20-3-130(A) (“No alimony may be awarded a spouse who commits adultery before the earliest of these two events: (1) the formal signing of a written property or marital settlement agreement or (2) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties.”).  It could hurt that spouse’s equitable distribution claim.  See S.C. Code Ann. § 20-3-620(B)(2) (“In making apportionment, the court must give weight in such proportion as it finds appropriate to all of the following factors: … (2) marital misconduct  or fault of either or both parties, whether or not used as a basis for a divorce as such, if the misconduct affects or has affected the economic circumstances of the parties, or contributed to the breakup of the marriage….”).  It could adversely affect that spouse’s claim for child custody. See Boykin v. Boykin, 296 S.C. 100, 370 S.E.2d 884, 885 (Ct.App. 1988) (“a parent’s morality is a proper factor for consideration in a child custody case, … limited in its force to what relevance it has, either directly or indirectly, to the welfare of the child”).

In theory those hypothetical family law attorneys having hypothetical sexual relations with their clients’ (not hypothetical) spouses should be perceived as “taking one for the team.”

In practice, our state Supreme Court does not see it that way.  Monday’s opinion in In the Matter of Anonymous Member of the SC Bar, 389 S.C. 462, 699 S.E.2d 693 (2010), privately admonished an attorney for having sexual relations with his client’s spouse.  It issued its opinion as a warning to our bar that “a sexual relationship with the spouse of a current client is a per se violation of Rule 1.7 [the professional conduct rule dealing with conflicts of interest with current clients], as it creates the significant risk that the representation of the client will be limited by the personal interests of the attorney.” (emphasis in original).  In Anonymous’ case that risk actually transpired, as he was fired after the client learned of the affair.

These public Supreme Court warnings via private admonitions are quite rare–this one is the nineteenth in South Carolina history–and, when issued, it’s a sign that our Supreme Court is using an individual case to highlight a possibly widespread problem.  All kidding aside, one might have hoped that most attorneys would know better than having sexual relations with their clients’ spouses.  But, as a family law attorney, I have a front-row ticket to the spectacle of animal lust warping human judgment: on that basis, Anonymous’ warning was probably necessary.

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