specially concurring:
I concur with the result reached by the majority in reversing the trial court, but believe the attorney’s alleged sexual misconduct, if it is misconduct, should be considered.
Petitioner, a client of the respondent, filed a section 2 — 1401 petition 77 days after the entry of the decree of dissolution, which established petitioner’s liability to respondent for attorney fees.
The petition alleges improprieties in the computation of attorney fees as well as improper conduct by respondent or his employees in the period immediately prior to and during the approval of the fees by the trial court.
Additionally, petitioner alleges she and respondent engaged in sexual relations at least 20 times prior to the entry of the judgment of dissolution and during the time respondent acted as her counsel.
Petitioner’s section 2—1401 petition was dismissed by the trial court for lack of due diligence in presenting the petition and that service on respondent was not properly perfected. The majority rightly recognizes that respondent’s response on the merits to the petition waives the alleged defect in service and after a careful analysis of petitioner’s actions concludes that petitioner exercised due diligence in filing the section 2—1401 petition.
The court correctly followed In re Marriage of Pagano (1989), 181 Ill. App. 3d 547, 537 N.E.2d 398, and In re Marriage of Pitulla (1986), 141 Ill. App. 3d 956, 491 N.E.2d 90, which provided that petitioner’s need for time to retain new counsel and out of court settlement discussions satisfied the due diligence requirements and further acknowledged that under Pagano (181 Ill. App. 3d 547, 537 N.E.2d 398), a section 2—1401 petition which alleges an attorney’s impropriety or misconduct should be granted a hearing even in the absence of due diligence if required in the interest of justice.
Since the requirement of due diligence is not imposed by statute, but rather by judicial mandate, it is perfectly appropriate for this court to carve out a significant exception to the requirement of due diligence where there is an allegation of a sexual relationship between a domestic relations lawyer and client which I believe constitutes a per se conflict of interest.1
While the majority declines to address the import of the alleged sexual liaison between petitioner and respondent, I believe that the precedential value of this case should be consideration of the legal profession’s “dirty little secret.”2
We conjure up with ease the client entering her lawyer’s office. Her marriage has collapsed and she is concerned about her failed relationship. Perhaps she has been rejected by her spouse. More often than not, she has serious financial problems which may present her with areas of stress with which she has not previously been required to cope. Her children may be severely disturbed over the failed marriage and the pulling and tugging by the parents which is generally attendant to these situations. As she walks through the door of the office, at last she finds someone who cares about her problem, someone who will protect her legally and someone whom she can trust.
Not every woman involved in matrimonial litigation fits the stereotype of a vulnerable person without knowledge of her rights, who relies in an emotional way upon her lawyer. Women in divorce, if they so choose, and lawyers, like everyone else, are generally not restrained from engaging in adult consensual sexual relations.
Having made that observation, however, no citation is needed to state that women involved in matrimonial litigation are often emotionally vulnerable. They feel the pain of divorce and search for a champion for their rights and for the rights of their minor children. They place a heavy reliance on the fact that their lawyer will work in their best interest.
In Illinois, a divorce lawyer who has sexual intercourse with his client has engaged in a per se violation of rules governing conflict of interest. The Illinois Supreme Court has not adopted a rule exclusively dealing with sexual relations between attorney and client. However, Rule 1.7 (Conflict of Interest) or Rule 3.7 (Lawyer as Witness) may be sufficient to regulate such conduct.3 Illinois Rules of Professional Conduct, 134 Ill. 2d Rules 1.7, 3.7.
Generally, an attorney who benefits from a transaction with a client must show that the transaction was fair, equitable and just and that it did not proceed from undue influence. To prove that the benefit received did not proceed from undue influence, the attorney must prove that he made a full and frank disclosure of all relevant information, that the consideration was adequate, and that the client had independent advice before completing the transaction. (In re Imming (1989), 131 Ill. 2d 239, 545 N.E.2d 715.) It is hardly likely that a lawyer about to begin a sexual relationship with a client would meet that rigorous test. 4
Moreover, the activity or conduct which is proscribed need not be explictly prohibited by the canons of ethics. In re Lamberis (1982), 93 Ill. 2d 222, 443 N.E.2d 549 (censure for plagiarism).
Although Illinois has adopted “no fault” divorce (Ill. Rev. Stat. 1989, ch. 40, par. 401(a)(2)), adultery remains one of the several grounds upon which a dissolution may be sought (Ill. Rev. Stat. 1989, ch. 40, par. 401(a)(1)). Adultery with her lawyer has provided the husband with grounds for divorce. A lawyer is required to act in the best interest of the client, and if called upon to testify, the lawyer would be required to give testimony contrary to the best interests of such client. (In re Marriage of Lee (1985), 135 Ill. App. 3d 509, 481 N.E.2d 1045; People v. Chatman (1982), 105 Ill. App. 3d 276, 434 N.E.2d 309; People v. Hill (1978), 56 Ill. App. 3d 510, 371 N.E.2d 1257.) His testimony might adversely affect child custody and might have some impact on the distribution of property, prohibitions in that regard to the contrary notwithstanding.
A lawyer is a fiduciary and his client’s best interests must be first and foremost on his mind. Blinois has a strong public policy favoring reconcilation.5 Could a lawyer who had spent the night with his client enter the office in the morning to discuss the possibility of reconciliation of his client with her husband?
Further, the relationship might affect the attorney-client privilege with respect to communications passing between them. Generally, the privilege does not extend to communications made to an attorney in any other capacity than as an attorney for the party making the communication. (Dickerson v. Dickerson (1926), 322 Ill. 492, 153 N.E. 740.) Hence, some tidbit of information gleaned during their personal time together might eliminate one of the essential elements to maintain the lawyer-client privilege. People v. Adam (1972), 51 Ill. 2d 46, 280 N.E.2d 205.
A lawyer who has engaged in sexual relations with his client has provided a conflict of interest which may require him to testify adversely to his client’s best interests, place the client in a more difficult position with respect to resolution of the issues in the domestic relations case, possibly impair the attorney-client privilege as to communications between them, and make it difficult to pursue the client’s interests with the appropriate kind of zeal and objectivity required by the canons of ethics.
Lawyers who engage in sexual relations with their clients are living on the edge. They might face (i) disciplinary proceedings before the ARDC or (ii) be subject to a malpractice case,6 or (iii) release of the client from the payment of any fees or sums which may be due or require return of monies paid for services rendered after the act of sexual intercourse. These three remedies are not mutually exclusive and a client could pursue all three.
The Illinois Senate has adopted a resolution directing the Illinois Supreme Court to adopt a rule of professional conduct which would deal with such behavior.7 However, while such an amendment might be an appropriate statement on the issue, I believe the present rules governing professional conduct may be adequate.
The case at bar deals only with the appropriateness of the attorney fees charged petitioner. Issues of malpractice and discipline must be left to another forum.8 Accordingly, a domestic relations client ought to be freed of the obligation of paying attorney fees from and after the time that the lawyer has a conflict of interest.
Illinois Law and Practice states: “An attorney may be deprived of compensation because *** he has represented adverse, conflicting and antagonistic interests in the same litigation. *** Unprofessional conduct has some effect on attorneys fees and in some cases, may be a complete bar to any recovery.” 4 Ill. L. & Prac. Attorneys and Counselors §124, at 211 (1971).
This court may refer to the rules of professional conduct as a reliable guide to what constitutes unprofessional conduct on the part of an attorney and upon such reference may determine that there ought to be a complete bar to any recovery of attorney fees. Talley v. Alton Box Board Co. (1962), 37 Ill. App. 2d 137, 185 N.E.2d 349.
Illinois courts have often been willing to set aside agreements for the payment of legal fees if they are violative of public policy. O’Hara v. Ahlgren, Blumenfeld & Kempster (1989), 127 Ill. 2d 333, 537 N.E.2d 730 (payment to deceased law partner’s surviving spouse); Phillips v. Joyce (1988), 169 Ill. App. 3d 520, 523 N.E.2d 933 (fee-splitting agreements); Leoris v. Dicks (1986), 150 Ill. App. 3d 350, 501 N.E.2d 901.
There are those who will argue that such a rule invites mischief and perjury. I note, however, that conviction for sexual assault can be obtained upon the testimony of the complainant alone without corroboration. (People v. Stengel (1991), 211 Ill. App. 3d 337, 570 N.E.2d 391.) Surely, if one’s liberty can be forfeited without corroboration, a lawyer’s fee ought to suffer the same fate upon a proper showing.
It ought to be no defense that the lawyer has handled or negotiated the matter in a lawyerlike fashion or otherwise properly accounted for himself in accordance with the best of his abilities. The sexual relationship between lawyer and client in a divorce setting is inherently an exploitive situation. The sexual relationship with a client always constitutes a conflict of interest, and as Jeffrey C. Hazard, Jr., of the Yale Law School wrote in The National Law Journal, April 15,1991:
“If the sexual relationship is emotionally serious, the lawyer cannot be dispassionate about the client’s legal problems. If the relationship is not emotionally serious, the lawyer may be exploiting the client. Of course, there can be cases where the relationship is genuine and not exploitive. But the probabilities are stronger the other way. Hence, a per se rule might be justified ***. The concept of a per se rule is not unheard of in conflict-of-interest matters.”
I believe the sexual relationship between matrimonial9 lawyer and client contaminates their professional relationship and establishes a per se conflict of interest which would render his fees forfeit where the client brings the matter to the attention of the court within a reasonable time and provides evidence sufficient to carry her burden of proof.
Section 2—1401 of the Illinois Code of Civil Procedure is substantially the same as was contained in the previous section 72 of the Illinois Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 72). Both have their roots in the writ of error coram nobis which required due diligence on the part of the person seeking the writ. M.L.C. Corp. v. Pallas (1978), 59 Ill. App. 3d 504, 375 N.E.2d 560; Diacou v. Palos State Bank (1976), 65 Ill. 2d 304, 357 N.E.2d 518.
About 1% of the 5,000 complaints which the Illinois Attorney Registration and Disciplinary Commission received during 1989 involved attorney-client sexual encounters. The ARDC determined that the problem is “a systematic, unchanging and consistent trend” in the domestic relations field. (Illinois Gender Bias Task Force, Illinois Task Force on Gender Bias in the Courts, at 54 (1990) (hereinafter cited as Task Force).) The Task Force expresses its concern about sexual relationships between domestic relations attorneys and their clients and states: “(1) the likelihood that the client is in a vulnerable emotional state and that the sexual relationship may increase her emotional dependency; (2) the possibility that the result of this increased emotional dependency is that the client is not able to give full voluntary and informed consent either to the relationship or to continued representation by the attorney; (3) the possibility that the attorney-client relationship may prevent any possible reconciliation between the client and her husband; (4) the inability to anticipate how the client’s spouse might react to the relationship if he were to find out, and how this discovery would affect the negotiation of property rights in their divorce and, if children are involved, the client’s right to custody; and (5) the possibility that the attorney may breach the fiduciary relationship with the client by being unable to render competent representation without a conflict of interest.” Task Force at 55; see also Du-bin, Sex and the Divorce Lawyer: Is the Client Off Limits, 1 Geo. J. of Legal Ethics, 585, 589 (1988).
Conduct prior to August 1, 1990, would have been governed by Rule 1—102 (Misconduct) or Rule 5 — 101 (Conflict of Interest) or Rule 5—102 (Lawyer as Witness) of the Code of Professional Responsibility repealed August 1, 1990. 107 Ill. 2d Rules 1—102, 5-101, 5-102.
A proposal to the California Bar would have required the lawyer to provide informed consent to the client by advising her of the potential pitfalls of a lawyer-client sexual experience and suggesting that the client discuss the matter with a second lawyer and sign a written waiver. (Bishop, Cracking Down on Sex with Clients, N.Y. Times, March 15, 1991, §B (Law), at 16, col. 3.) This would appear to be the legal equivalent of a cold shower!
In 1955 the General Assembly enacted then section 6a (Ill. Rev. Stat. 1955, ch. 40, par. 7a) which provided for commencement of divorce actions by praecipe and the filing of a complaint 60 days thereafter to encourage reconciliation during a cooling off period. In 1961, the “litigate by day, copulate by night” statute was passed encouraging litigants to reconcile during the pendency of litigation and not lose their respective grounds for relief. (Ill. Rev. Stat. 1961, ch. 40, par. 21.2.) A similar provision appears in our “No Fault” statute. (Ill. Rev. Stat. 1987, ch. 40, par. 401(aX2).) Courts may order litigants to attend conferences and counselling if the court or any party concludes that there is a prospect of reconciliation. (Ill. Rev. Stat. 1987, ch. 40, par. 404(a); Cir. Ct. Cook County R. 13.4(f)(iii)(A).) Additionally, the Illinois legislature provided in the preamble of the Illinois Marriage and Dissolution Act of 1977 that one of the avowed purposes of the Act is to “strengthen and preserve the integrity of marriage and safeguard family relationships.” Ill. Rev. Stat. 1987, ch. 40, par. 102(2).
It is not clear that malpractice will be an easy road to follow since Suppressed v. Suppressed (1990), 206 Ill. App. 3d 918, 565 N.E.2d 101. (See also Warden, Secret Suits, Chicago Lawyer, April 18, 1989, at 1, col. 2; Wisniewski, Sex With Clients An Unfair Affair, Chicago Daily Law Bulletin, April 20, 1991, at 1, col. 5.) Different rules may apply to health care providers. Corgan v. Muehling (1988), 167 Ill. App. 3d 1093, 522 N.E.2d 15, aff’d (1991), 143 Ill. 2d 296.
Although Illinois has not adopted a specific rule, California recently drafted a rule which, if approved by the California Supreme Court, would prohibit sexual relations with clients if there is no coercion, intimidation or undue influence when entering into the sexual relationship and continuing representation if the sexual relations would reflect on his ability to perform legal services in a competent manner. The rule does not apply to lawyer-client sexual relations predating the initiation of the lawyer-client relationship and it presents only a presumption that the rule has been violated. Rule 3 — 120 of the Business and Professional Code of California.
Lawyers disciplined for sexual advances to their clients: In re Stanton (1985), 103 N.M. 413, 708 P.2d 325; State v. Heilprin (1973), 59 Wis. 2d 312, 207 N.W.2d 878; Cincinnati Bar Association v. Fettner (1983), 8 Ohio St. 3d 17, 455 N.E.2d 1288; State of Michigan Attorney Disciplinary Board v. Gold (June 30, 1981), File No. DP 18/81; In re Adams (Ind. 1981), 428 N.E.2d 786; In re Merrifield, before the Comm. on Legal Ethics of the W.Va. State Bar, L.E.C. 85—12 (March 27, 1986); In re Gibson (1985), 124 Wis. 2d 466, 369 N.W.2d 695; Committee on Professional Ethics & Conduct of Iowa State Bar Association v. Durham (Iowa 1979), 279 N.W.2d 280. Trading sexual favors for legal services: In re Wood (1976), 265 Ind. 616, 358 N.E.2d 128; In re Howard (1984), 297 Or. 174, 681 P.2d 775. Grant of custody to husband where wife had moved in with lawyer: In re Marriage of Lehr (1978), 36 Or. App. 23, 583 P.2d 1157. Suit against lawyer for failure to use condom: Barbara A. v. John G. (1983), 145 Cal. App. 3d 369, 193 Cal. Rptr. 422 (partial compilation set out in Dubin, Sex and the Divorce Lawyer: Is the Client Off Limits, 1 Geo. J. of Legal Ethics 585 (1988)).
I make no determination as to a per se rule with respect to patent lawyer and inventor; real estate lawyer and developer; personal injury lawyer and injured plaintiff; corporate lawyer and CEO or any of the innumerable other possible combinations nor do I determine whether the lawyer is entitled to fees accrued or received prior to their sexual relationship.