Basic Ethics Overbilling and Sex with a Client

Posted on January 14, 2011 by Kimberley Kellogg 1 Comment

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Legal Ethics American Bar Association
Ex-Big Law Partner Disbarred for Bogus Time Entries, Expensed Meals for Internet Dates
Posted Jan 12, 2011 10:21 AM CST
By Debra Cassens Weiss
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The New Jersey Supreme Court has disbarred a former BigLaw partner for creating phony time records, having sex with a client and submitting expense vouchers for dinners with women he was dating.
The lawyer, Kenneth Denti, had worked at Fox Rothschild and Margolis Edelstein, according to the disciplinary review board opinion recommending disbarment. The disbarment order, attached to the end of the review board opinion (PDF), is dated Jan. 11. The Legal Profession Blog has the story.
Denti made “bogus” time entries at both law firms to justify his continued compensation, the opinion says. He also had sex with a divorce client at Margolis Edelstein and billed Margolis Edelstein for meals with other women he was dating, including two women he met through the Internet, according to the review board.
“We conclude that respondent engaged in an extensive and extended scheme to defraud the Fox Rothschild and Margolis Edelstein law firms,” the opinion concluded. “He submitted fictitious time sheets for more than two and one-half years, encompassing more than $350,000 in fees.”
Denti and the divorce client had both denied a sexual relationship, but flirtatious e-mails told a different story, according to the opinion. The document goes through a series of questions presented to Denti during the ethics hearing and his denials, including this question: “Let’s talk about your e-mail. What are you talking about with a whole case of raincoats and using them all in one night?”
“I think I’m joking,” he replies, and then says it probably refers to the client’s husband.
The review board said the relationship with the divorce client was unethical because she was attempting to reconcile with her husband.
Comments by Kimberley Kellogg
Wait a minute; it has never; been ethical to have sex with a client or to have a relationship with a client, unless the consensual sexual relationship predated the attorney client relationship or a spouse. It just seems like forever ago, when the American Bar Association adopted the model rule in 2002. Most states have adopted the rule within the next year or two. The minority of states like Texas has not adopted this or any other rule on sexual conduct between attorneys and clients.
Or when was it ethical to overbill or bill for dinner with friends? I can answer the overbilling issue. It is never okay to overbill your client, even if they agree. If you hesitate, or have a moment that is appears okay. It is not. My client asked if I learned anything on the seminar that helped on his case. We reviewed the hours at the seminar that I thought were applicable to him. I billed for those hours. I was wrong. Kevin Denti was wrong for overbilling and sex with his client.
Texas has been “working” on adopting the 2002 Model Rules for seven years. The Dallas Morning News calls the failure to ban such relationships “one of Texas’ longest-running legal dramas.” It took lawyers acting on behalf of the state supreme court seven years to draft proposed ethics revisions, but the client-sex ban is “the biggest sticking point,” the story says. The proposed rule bars lawyers from having sex with a client whom they are “personally representing,” Texas Lawyer reports. Exceptions permit representation if the client is a spouse or a person with whom the lawyer had a pre-existing consensual sexual relationship. Or your law partner may represent your sex partner. What are they thinking? The goal of the rule is to protect the client from attorney abuse. Not to provide attorneys an ethical exception to have sex with their clients. Divorce clients are very venerable. In many cases, it takes a divorce client two years to work through the drama.
In July 1991, California began working on a code provision that banned coercing or demanding sex with clients. The burden would be on the attorney to prove sex was consensual and the representation was competent. In 1982, an Oregon advisory opinion stated during a divorce it was unethical to have sex with the client. Prior to 1991 there were two cases that mentioned sex with clients. In, Suppressed vs. Suppressed 565 N.E. 2d, 101(1990), the court rejected a client malpractice suit based on sexual relationship. In Barbara A. and John G., 145 Cal.3d 369(1983), the court refused to rule on the ethics issue regarding attorneys having sex with a client.
The ABA Model Rule protects both the public and the attorney. The ABA model rule is clear, simple to follow and there are no exceptions. The Texas rule doesn’t go far enough to protect the public and the attorney. Texas is making a mockery of its self by taking seven years to draft and not adopting the ABA model rule.

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One comment

  • Richard Underwood says:

    For your edification and delight, go to University of Kentucky CLE, where you will find my CLE on “Sex with Clients in 3-D.” No sex, but it is 3-D. It’s funny, I think, although probably not my most scholarly work. You get a law review style article with it, and 1/2 hour CLE credit. Needless to say, not everyone in the audience was listening. Sex with clients marches on. Nobody listens to me, because I am a Professor, and not a “real lawyer.”

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