This is a good blog day. Lots to write about, and I get to reuse the actual title to the final paper in my Ethics and Lawyering in the 21C. I have to admit that the class was severly limited in scope, covering only the first few years of that century.
The cause for this entry: The Wisconsin Supreme Court, (via Volokh Conspiracy), who debated this question during a recent ethics hearing: If a lawyer has sex with a client's girlfriend while the client is having sex with her, is the lawyer having sex with the client as defined under the Rule?
The Court eventually declined to apply the transitive property of being a total jerk, but not in the way any normal person would think.
I read the rule: "Don't have sex with your clients, unless (and you have to love this), you had sex prior to that person becoming your client." That is the rule in most states.
The judges got as far as to mull the temporo-spatial limits of the word "with." If we are both having sex "with a person" over time, say through the month of August, we are both in a constant state of having sex "with" that person and, occupying that same state with the same person, we occupy it together and are therefore having sex with each other. The court missed the erroneous presumption: Who says that one cannot be in two mutually exclusive states of "having sex with" a person?
But it didn't reject the logic of the argument. Rather, it decided that the rule says "a person" once, but says "the person" or "the client" more often, so it must be directed at the one person - the client.
Did we need all that?
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