Lawer-Client Relations Professional Misconduct

The question of whether a lawyer’s sexual relationship with their client was professional misconduct was considered in the case of Bar Association of Queensland & Stevens v Lamb [1972] ALR 285 (“Lamb”). The High Court held that even though such conduct was “improper” and “unprofessional” it did not of itself constitute misconduct that was capable of sustaining disqualification from practice. According to some commentators the decision is simply a case of the court misunderstanding or choosing to give insufficient weight to the nature of sexual exploitation and a client’s vulnerable state of mind. Harm to the client due to the power dynamics of relationships and the nature of sexual exploitation are better understood today than they were during the case of Lamb. If a similar set of facts were before a court today, they argue, the issue would be decided differently. ¬¬

Despite the improved understanding of the relationship between a lawyer and client, this paper argues that lawyer-client sexual relations should still not of themselves be a ground for professional misconduct. It is conceded that lawyer-client sexual relations in themselves can constitute professional misconduct under the existing Common Law definition. However, it is also for this reason that they should not form another grounds for professional misconduct. The grounds that are already in place in both Common Law and statute are sufficient in protecting against the harms posed by lawyer-client sexual relations and if grounds were extended to the sexual relations it would fail to contribute anything...

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