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Jones v. Marshall8/28/2000
The issue in this case is whether an attorney can be liable for attorney malpractice for engaging in consensual sexual relations with a former client. We are aware of no published Washington case in which an attorney was held civilly liable for engaging in consensual sex with a current or a former client. Recent cases have held that an attorney who engages in sex with a client can be subject to professional discipline, if the attorney uses his professional status to exploit the client's vulnerability. But here the plaintiff has failed to allege that she was particularly vulnerable to sexual exploitation. Seeing no other basis to support a claim for attorney malpractice, we affirm the trial court's dismissal under CR 12(b)(6).
FACTS
Melodney Jones sued her former attorney, Bradley Marshall, for attorney malpractice. Jones's complaint contained the following factual allegations. In 1994, Jones retained Marshall to represent her in a personal injury lawsuit. In the course of discovery, the defendant's attorney took Jones's deposition. The attorney asked Jones whether she had been hospitalized during the past year. When Jones balked at explaining why she had been hospitalized, Marshall escorted her from the room and asked her why she was reluctant. Jones revealed to Marshall the reason for her hospitalization, which concerned "matters of a deeply personal nature."
In December 1995, Marshall convinced Jones to travel to New York City while he was there on a business trip. Marshall represented to Jones that the two would have separate hotel rooms. When Jones arrived at the hotel, however, she discovered that Marshall had not obtained a separate room for her. The couple proceeded to have sexual intercourse. As a result, Jones became pregnant. She subsequently obtained an abortion.
Jones filed suit against Marshall for professional malpractice. In her complaint, Jones alleged that "through the abuse of his position of authority and the abuse of the information he had obtained through his position as her attorney, Mr. Marshall had sexual intercourse with Ms. Jones."
Marshall filed a CR 12(b)(6) motion to dismiss the case for failure to state a claim upon which relief could be granted. Marshall argued that, because Jones had failed to allege that an attorney-client relationship existed at the time Marshall allegedly breached his duty toward her, Jones's case should be dismissed. Jones filed a response in opposition to the motion, together with a declaration.
Jones alleged additional facts in her declaration. In particular, she alleged that she revealed to Marshall during her deposition the reason for her hospitalization the previous year. According to Jones, she told Marshall she had been hospitalized for depression, and that she had been molested as a child and had difficulty in her relationships with men.
Jones further alleged in her declaration that Marshall had initiated a romantic relationship with her while he was still representing her in the personal injury lawsuit. She explained that after that lawsuit was successfully arbitrated, Marshall went to Jones's house to give her a check for her share of the arbitrator's award. As she walked him to his car, he kissed her. The two then met several times for drinks. At some point, Marshall asked Jones to meet him in New York. Marshall made this offer before he had received the settlement check from the insurance company. When Marshall finally received the check, Jones met him in his office to endorse the check over to him. On that occasion, Marshall gave Jones airline tickets for New York and said, according to Jones, that the two would have "separate rooms."
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