Virginia State bar rules against adopting sexual misconduct regulation

A Virginia State Bar committee has decided against adopting a rule to ban attorneys from having sexual relationships with clients they represent, concluding that existing rules are sufficient to effectively prosecute such misconduct.

Instead, the arm of the Virginia Supreme Court charged with policing lawyers will publish a formal opinion geared at educating lawyers on the issue, officials said last week.

Unlike 27 other states that have adopted a ban advocated by the American Bar Association, the Virginia State Bar does not have a rule that specifically prohibits such relationships.

The State Bar began considering the ABA rule after the Bristol Herald Courier in March published a series of articles examining the disciplinary case against a former Legal Aid attorney accused of sexually exploiting six of his emotionally vulnerable, indigent clients. Two of them claimed he raped them.

Wade Compton, the Lebanon attorney, ultimately admitted to consensual but improper conduct with four clients, and agreed to surrender his license for five years – one of the strongest sanctions the State Bar has secured in a sexual misconduct case. On the eve of a disciplinary hearing in late 2008, Compton also admitted to a mental health impairment and announced he had begun to see a counselor.

But it took more than 2½ years to sanction Compton, during which time he continued to practice law; meanwhile, at least three of the women he victimized expressed dissatisfaction that his license was not revoked.

When first asked about the ABA rule in March, Edward Davis, the State Bar’s top prosecutor, was only vaguely aware of it, but he acknowledged in general terms that it could facilitate prosecutions of misconduct.

“If any rule is specific in prohibiting any specific misconduct,” Davis said, “then absolutely it is easier to prove.”

The topic was a “fertile ground for discussion,” and Davis aired it during a roundtable with the State Bar’s committee on lawyer discipline, at an annual legal education conference for 100 judges and State Bar volunteers, and again in July, at a meeting of the Legal Ethics Committee, which vets all rule changes.

Their conclusion: Prohibiting specific types of misconduct poses more problems than it solves, and Virginia attorneys don’t need the extra guidance when it comes to intimate involvement with clients.

The reasoning
Davis was concerned that banning sexual liaisons between attorneys and clients would make it more difficult to prosecute related misconduct, such as sexual harassment, that was not specifically banned in the rule.

“You could hamstring yourself,” Davis said in a phone interview Thursday.

The State Bar prosecuted Compton for violating a conflict of interest rule, and under a broad rule that allows attorney sanctions for committing a “criminal or deliberately wrongful act.”

Defining the “wrongful act” with specific examples could undercut the authority of the broad rule, State Bar officials believe.

“If we identify very specific instances of what constitutes a deliberately wrongful act, then we end up losing the benefit of the general rule,” said Jim McCauley, the State Bar’s ethics counsel. He added, in defense of the existing rules, “We have not had any sexual misconduct cases thrown out because we didn’t have a rule that specifically prohibited the conduct.”

From the attorneys’ point of view, McCauley said, even a consensual relationship with a client is a “no-brainer.”

“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,” he said.

This was the interpretation Compton offered in his defense, arguing in a 2006 letter to the State Bar that “a consensual relationship that does not influence a case is not forbidden by the rules.”

The case in question
Larry Harley, Compton’s former boss at the Southwest Virginia Legal Aid Society, fired Compton in March 2006 after he admitted to sexual contact with a client. Harley spent two months preparing a complaint to set the disciplinary process in motion, and was surprised to find that the State Bar did not explicitly prohibit sex with a client. He wound up basing his complaint on a broad rule compelling an attorney to report the behavior of a colleague when it calls into question his “honesty, trustworthiness or fitness to practice law.”

“It is alarming that Mr. Compton appears to be preying upon vulnerable female clients during the course of his representation of them,” Harley wrote in his complaint. In conclusion, 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.”

Then Harley waited for the State Bar’s response. It came nine months later – a delay the agency was at a loss to explain.

The experience led Harley to the ABA’s ban on sexual relations with clients, and made him a supporter. While he assigns no blame to Davis, nor to the assistant counsel who prosecuted Compton (both of whom arrived in their positions well after Harley filed his complaint), Harley believes the State Bar’s rules are “very ambiguous” on sexual conduct with clients and that it has missed an opportunity to clarify them.

“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 said, referring to Compton’s father, Eugene, who has sat on the 40-member Bar Council since 2007.

Eugene Compton, a longtime attorney in Lebanon, Va., initially represented his son in the disciplinary case, even though the State Bar’s guidelines prohibit a member of Bar Council from doing so.

When contacted in March, Eugene Compton declined to comment about the case, except to say, “Any contact that occurred was consensual on both parties.”

The opinion
There was another option on the table, as Davis and McCauley floated ideas before State Bar staff, members and volunteers.

The State Bar could adopt a variation of the ABA rule, prohibiting sexual relations with clients but adding language to encompass other related misconduct.

Davis acknowledged that was a way to skirt the arguments that related conduct not specifically banned was implicitly condoned.

“That’s a possibility,” he said. “You enact a rule and add a comment that this does not preclude the bar from seeking disciplinary action . . .” he said, letting the thought trail off. “The Legal Ethics Committee chose to go ahead and draft a compendium opinion, summarizing all disciplinary actions. That way, all attorneys are going to be educated on what the laws are in Virginia.”

McCauley expects to publish a draft of the opinion by late September, at which point it will be open to public comment for 30 days. The State Bar will consider any changes and publish a final opinion.

dgilbert@bristolnews.com | (276) 645-2558