What's the Definition of "With"?

A referee from the Office of Lawyer Regulation in the state of Wisconsin concluded an investigation into attorney Michael R. Inglimo. The referee recommended Inglimo's license to practice law be suspended for 18 months, so the attorney appealed the suspension to the state's Supreme Court.

The court's findings were ...well... fairly eye opening (and a bit salacious: don't continue reading if you're easily offended!)

Here are some quotes from the Supreme Court's decision:

Attorney Inglimo admitted and the referee found that Attorney Inglimo had sexual intercourse with K.K. in the presence of her husband P.K. Attorney Inglimo suggested the arrangement. The encounter was videotaped, with Attorney Inglimo supplying and setting up the videotape equipment.

Attorney Inglimo admitted that he had represented P.K., K.K. or both in numerous matters beginning in at least 1997 and that at the time of the videotaped sex act, he had an ongoing attorney-client relationship with P.K. K.K. had clearly been a client of Attorney Inglimo prior to the incident, although Attorney Inglimo contended that she was not a client at the time of the sexual encounter.

Both P.K. and K.K. testified that the sexual intercourse was payment for prior legal services that Attorney Inglimo had rendered to K.K. P.K. testified that the videotaping was done to ensure that there was no dispute that the bill for legal fees had been paid in full.

(Emphasis added.)

Count 10 also related to the June 2002 incident. The referee found that during the June 2002 videotaped incident, Attorney Inglimo, P.K. and K.K. also had snorted cocaine using a straw and a mirror. Attorney Inglimo admitted that he had used cocaine occasionally since becoming an attorney, although he said he wasn't sure whether the substance shown on the June 2002 videotape was really cocaine. He claimed that it may have been flour or salt. P.K. and K.K. testified that the substance was indeed cocaine and K.K. stated that she had used cocaine with Attorney Inglimo on other occasions.

For the next excerpt, here is the relevant language of Wisconsin's Supreme Court Rules (SCR) -- notably Chapter 20, the Rules of Professional Conduct for Attorneys:

20:1.8(k)(1) In this paragraph:

(i) "Sexual relations" means sexual intercourse or any other intentional touching of the intimate parts of a person or causing the person to touch the intimate parts of the lawyer. ...

(2) A lawyer shall not have sexual relations with a current client unless a consensual sexual relationship existed between them when the lawyer-client relationship commenced.

Sounds like a simple rule, but remember the previous case of a certain U.S. president who got into big trouble in a sexual misconduct case, and had a big argument over what the definition of "is" is? OK, keep that in mind. (Note: OLR is the Office of Lawyer Regulation):

The referee found that Attorney Inglimo engaged in sexual relations with L.K.'s girlfriend while she was doing the same with L.K. The OLR essentially argues that the word "with" in SCR 20:1.8(k)(2) connotes a temporal and spatial connection. According to the OLR, as long as the lawyer and the client are both participating in a sexual act at the same time in the same place, they are having sexual relations "with" each other. In response, Attorney Inglimo relies on the plain language of the rule and argues that the OLR's interpretation would expand the rule beyond its terms.

On this issue, we concur with the referee's conclusion. The definition of sexual relations in SCR 20:1.8(k)(1) connotes conduct directly between the lawyer and the client. When the definition refers to touching, the rule speaks of the lawyer intentionally touching the intimate parts of "a person," but the subsequent alternative definitional phrase uses the more definitive "the person" when referring to a situation in which the lawyer causes the touching to be done to him/her. In addition, to the extent that sexual intercourse also qualifies as "sexual relations" under the definition, such conduct is likewise done intentionally (i.e., not by accident). Further, SCR 20:1.8(k)(2) prohibits a lawyer from having "sexual relations" "with a current client." Thus, the definitional language of SCR 20:1.8(k)(1) and the prohibition of SCR 20:1.8(k)(2) together clearly indicate that the prohibited "sexual relations," whether intercourse or touching, must be intentionally done between the lawyer and one particular person, namely the client.

Without commenting on the applicability of other Rules of Professional Conduct, we agree with the referee's conclusion that the evidence in the present case did not show that Attorney Inglimo had engaged in "sexual relations" with client L.K in violation of SCR 20:1.8(k)(2). There was no testimony as to precisely what occurred during Attorney Inglimo's encounter with L.K. and his girlfriend. There was no testimony that Attorney Inglimo ever intentionally touched L.K.'s intimate parts or caused L.K. to touch his intimate parts. Moreover, there was no testimony that Attorney Inglimo engaged in any form of sexual intercourse with L.K. Thus, because it does not appear that the definitional elements of "sexual relations" have been satisfied, the simple term "with" in the prohibitional phrase in SCR 20:1.8(k)(2) cannot transform this situation into a violation of the rule.

(Emphasis from the original)

The Supreme Court's decision on that 18-month suspension? It instead suspended Inglimo's license for three years -- and required him to pay the cost of the appeal (more than $42,000), and required that he undergo monthly random drug tests over a period of a year before his license could be reinstated.

So there!

(For the full Supreme Court decision [PDF, 127K of legalese] see Supreme Court Case 2005AP718-D, decided October 18, 2007)

Posted July 3, 2009

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