J. TODD FOSTER: Directive Against Attorney-Client Sex Necessary

The Virginia State Bar blew it. Or came close to blowing it.

The organization that polices the commonwealth’s lawyers had an opportunity to enact an official rule banning attorneys from having sex with their clients.

Following a spring investigation by the Bristol Herald Courier, which chronicled a Lebanon lawyer’s involvement with multiple clients, the State Bar considered an explicit directive against attorney-client sex. Instead of enacting the rule, though, the State Bar plans to publish a formal opinion and educate its members about the issue. We applaud the Bar for that, but it missed an opportunity to enhance its ability to regulate the profession and protect the public – two of its missions.

Twenty-seven states, meanwhile, have adopted these bans based on a recommendation by the American Bar Association.

Our story was about Wade Compton, a Lebanon lawyer who then worked for Legal Aid. Six women – all emotionally vulnerable, indigent clients – accused him of taking sexual advantage of them, and two claimed he raped them.

Larry Harley, Compton’s former boss at the Southwest Virginia Legal Aid Society, fired Compton and triggered the State Bar’s investigation with a complaint that didn’t result in sanctions for 2½ years.
Harley told Herald Courier reporter Daniel Gilbert that he was stunned to learn the State Bar did not explicitly ban attorney-client sex, even consensual.

“It is alarming,” Harley wrote in his complaint, “that Mr. Compton appears to be preying upon vulnerable female clients during the course of his representation of them.” He added: “Mr. Compton’s actions may have damaged the viability of our Legal Aid program as well as our ability to fulfill our mission.”

Edward Davis, the State Bar’s top prosecutor, told Gilbert in a story published today on A1 that banning attorney-client sex would make it more difficult to prosecute other sexual misconduct, such as sexual harassment, that was not singled out for a ban in any rule.

Jim McCauley, the State Bar’s ethics counsel, said that spelling out a prohibition against attorney-client sex is a “no-brainer.”

Said McCauley: “There’s no way that a reasonable lawyer could believe that it’s appropriate to have sex with a client while you’re representing them.”

Not all lawyers are reasonable, though. Nor are doctors. Or newspaper reporters. That’s why our industry does not assume that reporters instinctively will know it’s taboo to make up sources or steal others’ material without attribution. We spell it out in a strictly enforced ethics code.

So should the State Bar.

Compton, who lost his license for five years as a result of admitted sexual liaisons, claimed the sex was consensual and not specifically barred under Bar guidelines.

The State Bar should have removed that excuse.

“Presently, there are members of the State Bar’s governing body who are of the opinion that consensual sexual conduct between a lawyer and a client is perfectly OK,” Harley told Gilbert.

He was referring to Compton’s father, Eugene, who has sat on the 40-member Bar Council since 2007 and initially represented his son in the disciplinary case – against the State Bar’s own guidelines, which prohibit such conflicts of interest.

An outright ban on attorney-client sex would send a message of transparency and accountability – two concepts that should apply to every profession that involves the public trust, including journalism.

“We enjoy the shield of the First Amendment, but it can’t, won’t and shouldn’t protect us from any resentment we engender when we act as if we were accountable only to ourselves and as if we had no obligation at all to the public,” Washington Post columnist Colbert King wrote in 1996.

The State Bar had but missed a chance to honor the public trust.

J. Todd Foster is managing editor of the Bristol Herald Courier and can be reached at jfoster@bristolnews.com or (276) 645-2513.

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