Here's the situation. A big-time divorce lawyer handling a big-money divorce case is in bed with an attractive woman who is not his wife. She is, in fact, his client, the one involved in the big-money divorce case. It doesn't take a legal scholar to see that this is a situation fraught with ethical difficulties. Right?
Now, to compound matters, the bed the lawyer and his client are in is located in the house she still owns with her husband. What the wife and the lawyer are doing is not sleeping when, unexpectedly on this quiet weekday afternoon, the husband walks in.
It is a particularly flagrant example of flagrante delicto. And, besides the moral concerns, it should get the lawyer in a lot of trouble, since a lawyer who gets caught with his client in such a situation probably has not strengthened her legal position in her divorce case. The lawyer no doubt has violated whatever stern rules cover a divorce lawyer who, sexually speaking, socks it to his client in her very own home. Right?
Wrong. There is no rule explicitly prohibiting a divorce lawyer from behaving in such a fashion.
Here's another situation. A tall, trim, handsome, expensively dressed divorce lawyer, the same guy as before, is in his La Salle Street suite, 34 floors up in a corner office with double exposure, an office big enough to accommodate a board meeting.
It is another quiet afternoon, this one a Saturday when hardly anyone is around. There is no receptionist, only a couple of other lawyers who, apparently, the tall good-looking lawyer doesn't want barging in unexpectedly, for he is propping a chair against the inside of the door.
As he does this, another tall and good-looking person, a former airline flight attendant, sits on a couch and stares at him quizzically. She, too, is a client, although a new one, having laid eyes on the big-time divorce lawyer only twice before.
She is flabbergasted when he unzips the fly of his trousers and proposes that the two of them engage in something other than legal chitchat. Although he says, "You aren't being forced to do anything if you don't want to do it," she is confused and scared, and she complies hesitantly as he sits on the couch, places his hand on the back of her head, and pushes her face into his lap.
Once again, even the most legally naive person can see that this is a situation that works to the detriment of the client's interest. But again, there is no rule explicitly prohibiting a lawyer from dallying with clients.
Why is there no rule? Is it because lawyer-client sex is a private matter, like other sex between consenting adults, that should not be regulated?
No. Many thoughtful authorities point out that in lawyer-client sex the client never is truly consenting.
"There is an inequality of power that is impossible to allow for," says Professor Linda R. Hirshman of the IIT Chicago Kent College of Law. "The power relationships are such that no lawyer can ever know that sex with a client will not deeply violate the client's well-being. As we all know, sex is a fiery and dangerous business that can quickly lead to pain and suffering. Lawyer-client sex is wrong for all the reasons that it's wrong for teachers to have sex with students and psychiatrists with patients."
Laurel G. Bellows, past president of the Chicago Bar Association, comments, "It's common sense that the job of a lawyer is to maintain objectivity and not become sexually involved with a client who is seeking his counsel at one of the most vulnerable points in her life. It is as blatantly wrong as a lawyer becoming a beneficiary of a client's will."
Former state representative Alan J. Greiman, now an Illinois Appellate Court justice, notes that there is strong policy favoring reconciliation in divorce cases and asks rhetorically, "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?"
Is there no rule against lawyer-client sex because it is so rare that there simply has been no need to confront the problem?
No again. In a random nationwide survey of lawyers by Memphis State University researchers, 6 percent of the respondents acknowledged having affairs with one or more clients. "The 6 percent figure may well understate the problem," the researchers wrote. "It is possible if not probable that many attorneys did not [answer truthfully] because they may have been hesitant to admit their own culpability." In the same survey, 31 percent of the lawyers said they knew of other lawyers who had been sexually involved with clients.
The Illinois Attorney Registration and Disciplinary Commission (ARDC), the arm of the state supreme court that is supposed to keep lawyers honest and ethical, reports that lawyer-client sex in the divorce field is "a systematic, unchanging, and constant trend." The ARDC receives about 50 complaints a year involving lawyer-client sex. Of course the commission's figures, like those in the Memphis study, may greatly understate the problem because many women are too embarrassed to complain or think a complaint would accomplish nothing--and until recently, they were right.
The reason there is no rule against lawyer-client sex is that the legal establishment--judges and wealthy practitioners--doesn't want one. It is a clubby, insular, and male-dominated group, this establishment, and it likes to pretend that its high ethical sensibilities make extensive regulations unnecessary.
Even in the face of the disdain that large segments of the public--and much of the legal profession itself--have for divorce lawyers, the courts have rebuffed those who want to do something about the way their libidos and their legal work frequently intermingle.
Two women who have attacked the practice are the one in the bedroom and the one in the office. They say they didn't like the way their big-shot Chicago divorce lawyer handled their cases, and especially didn't like his sexual deportment.
The lawyer who is the target of their complaints, displaying muscle in the courts, succeeded for years in clamping strict secrecy over all proceedings that could identify him personally as the object of their allegations.
Recently, however, as a result of brash and, in retrospect, ill-advised moves in the courts, the lawyer blew the cover he had gone to such lengths to construct, causing his name to become publicly linked with his former clients' allegations.
His name is Richard A. Rinella.
For years, as the litigation filed by the two women bounced around various courts, state and federal, Rinella vociferously denied ever having sex with them. The flagrante delicto woman, he said, once tried--but failed--to lure him into a sex trap. Of the ex-flight attendant, he declared, "This woman is vindictive. She is emotionally unstable as far as I'm concerned. It's just an incredible situation."
The ex-flight attendant's suit has been terminated, with Rinella prevailing on a threshold issue. The courts have held that, regardless of whether her allegations are true or false, there is no legal cause of action over a lawyer having sex with a client--unless the lawyer actually makes his representation contingent upon the sex. She made no such allegation.
The flagrante delicto woman's suit is still alive, however, because she does accuse Rinella of conditioning his legal services upon her sexual services.
Meanwhile the ARDC has accused Rinella of making false statements in repeatedly denying, under oath, ever having had sex with her--denials he abandoned after the ARDC confronted him with photographs apparently showing him unclothed in her home. The ARDC is now moving to discipline Rinella--both for perjury and for violating professional standards by having sex with both women. The maximum penalty would be disbarment.
Rinella and Rinella is one of the two or three most prominent divorce firms in Chicago. It was established in 1940 by Samuel Rinella and his wife Kathryn, both 34 years old at the time. Kathryn Rinella was the daughter of Bernard Barasa, the first Italian-American judge in Chicago. Intelligent, beautiful, and witty, Kathryn graduated from DePaul University College of Law in the 1927 class, which also produced a lawyer named Richard J. Daley, who would go into politics.
Rinella and Rinella, perhaps reflecting Kathryn's social connections, soon developed a reputation for championing women in big-money cases. Through the years the firm has pressed the cases of many women with well-known last names--Halas, Wrigley, Donnelley, Walgreen, Kroc, and at least one Thompson: Mrs. William, the eldest daughter of Kathryn's old classmate, Richard Daley. Along the way, the Rinellas amassed a fortune.
Sam and Kathryn had two sons, Bernard B., now 57, and Richard, 54. Both almost six-feet-five and athletic, the sons inherited their parents' good looks and, eventually, their law firm; Sam and Kathryn died in 1982 and 1991 respectively.
Bernard, after attending the University of Michigan, received his law degree from DePaul in 1958. Richard received his undergraduate degree from Harvard and graduated from the University of Michigan Law School in 1961.
The law firm has continued to prosper under the sons. Socially prominent and active, the Rinellas keep their name before the public, never hesitant about publicizing their legal exploits. Publicity is important to divorce lawyers because the appearance of success draws customers. Recently the firm even employed a big-time public relations outfit, Hill and Knowlton, which among other clients represents the government of Kuwait.
The Rinella firm, which employs ten lawyers in all, occupies the entire 34th floor of the One North La Salle building, with Richard Rinella's office being the one in the southeast corner. It was there on an unusually warm November day in 1983 that E. Jeanne Metzger, a 35-year-old former flight attendant, was shown in by a secretary. Rinella shook her hand and invited her to sit down on a couch.
Jeanne Metzger had been married for six years. She had two young sons by her present husband and one, 13 years old, by a previous marriage. Between marriages she had worked for airlines, but when she remarried she quit to devote all her time to raising the children. Things had not been going well between the Metzgers for a couple of years. Her husband hadn't been around home much in the evenings--working late, he assured her, but she feared the marriage was coming apart.
At first she blamed herself, thinking three pregnancies had left her overweight and unattractive. Things might get better, she thought, if she could get back to her flying weight, so she dieted, jogged, and attended exercise classes, dropping her five-nine frame to 110 pounds. But the relationship didn't improve.
Eventually Jeanne decided she wanted a divorce. Friends suggested that she call Rinella and Rinella. She did and spoke with Richard Rinella, who agreed to see her two days later.
Sitting in Rinella's office, she wore a dark blue tapered dress, plain pumps, and no jewelry other than a simple pair of pearl earrings. Across from her, Rinella's attire was equally muted--precisely tailored navy blue suit, expensive white shirt, dark red tie.
At Rinella's request, as Metzger would recall later in a complaint she filed with the ARDC, she brought her husband's financial records. After examining them, said the complaint, he told her, "Our firm will be glad to take your case," adding that her husband's annual income was a little more than $200,000, the minimum for cases handled by Rinella and Rinella. She gave him a $2,500 retainer fee to get things started.
At a second meeting two weeks later, according to Metzger's complaint, Rinella encouraged her to talk about her marriage. "Richard said he wasn't a counselor, but he did want to hear why my husband wanted to leave a nice-looking wife like me," she wrote. "I told Richard the last time I ever had sexual relations with my husband was when my youngest son was conceived." That was 19 months before.
In late November Rinella filed suit to dissolve the Metzger marriage. On December 10, 1983, a Saturday, Metzger went to Rinella's office at his request, according to her complaint. "Richard came out to the waiting area to bring me back to his office," she wrote. "He went out of his way to introduce me to Richard D. Doermer," one of the lawyers then in the firm. Rinella then closed his office door and barred it with the chair, according to Metzger's complaint.
"Yes, I did submit," the complaint went on. "I was in such shock at this type of behavior I didn't know what I was doing. I had thoughts going through my head, 'Is this what I have to do nowadays to fight for my children and myself for support?' I knew that my husband was trying to hide everything at the time, and I knew I was going to have a very tough case, so I felt compelled to submit to Richard Rinella's wishes that day."
Four days later, Metzger was in Rinella's office again, but she didn't stay long. Rinella met her in the reception area and told her to wait for him downstairs, in front of the American National Bank. She said they took a cab to a Dearborn Park apartment that Rinella told her belonged to Doermer, the lawyer she had met the previous Saturday.
"I took my clothes off in the bathroom and proceeded on into the bedroom," she wrote in her complaint. "Richard went back to check the lock. He was a little paranoid at the time. I got into bed and there we had sexual intercourse. Richard asked me if I get high or do any cocaine. I told Richard no."
Rinella then suggested that she take a whiff of a liquid that smelled like airplane glue and came in a little brown bottle, Metzger wrote. "It makes you have an orgasm very easily," she quoted him as saying, and she sniffed it.
"And it did give me an extreme high," she wrote. "It almost made me feel like I was ready to burst in my head. I remember it did give me a sensational feeling when making love."
Rinella liked the stuff in the brown bottle so much that he partook of it several more times before they left, Metzger continued, but she got a "terrific" headache from it and didn't take any more.
After that day, the complaint said, Metzger and Rinella had one more assignation, at Doermer's apartment on January 11, 1984. The alleged routine was pretty much the same, except that instead of taking a cab he drove her car and stopped at a place on Wells Street to pick up another bottle of the stuff that smelled like airplane glue. "I don't remember what it is called," she wrote. "It started with an 'M.'"
At the apartment, the complaint continued, Metzger stood naked near the window and Rinella expressed an interest in having photographs of her like that.
They met again about a month later, according to the complaint. That was February 8, the day Metzger was to testify at what she assumed was a routine pretrial hearing but what Rinella intended to be the "prove-up" of her allegations against her husband--the final step before the divorce would be granted.
In divorce proceedings, the prove-up comes after the parties, through their attorneys, agree on such matters as how their children are to be provided for and how their property is to be divided. Typically, after an agreement is reached, the party who filed the divorce suit goes before the judge to testify that there has been an agreement. The judge reviews it and if it appears legal and fair orders the marriage dissolved.
In Illinois the judge also approves the legal fees, and they become part of the settlement, to be distributed just like the rest of the property--the husband gets the BMW, for example, the wife the Persian rugs, and the wife's lawyer $15,000, which someone must pay, by selling, if necessary, the BMW or the Persian rugs.
This is a cozy arrangement for lawyers, who know how much the clients have or get and know that it is sufficient to cover the fees. A court order then guarantees payment. In no other state do courts award divorce lawyers fees against their own clients. Outside Illinois, divorce lawyers are just like most other lawyers: They simply bill their clients and hope to be paid. If they're not paid, they can sue.
Two days before Jeanne Metzger's scheduled hearing, according to her complaint, Rinella called her and asked her to bring a Polaroid camera. Although the hearing was set for 12:15 PM, Rinella said he wanted her at the office at 9 AM sharp. She arrived on time, expecting to go over her testimony, but Rinella was with another client and kept her waiting more than three hours. He finally emerged a few minutes before the appointed hour of her court appearance and hurried with her to Judge Everett Braden's courtroom three blocks away in the Daley Center. On the way he allegedly asked, "Did you bring the Polaroid camera?" She had not, but said she had.
Outside the courtroom, when Metzger thought they might at last discuss the case that would affect the rest of her life, she claimed the conversation went like this:
"Where is the camera?"
"It's in the car."
"Why didn't you bring it?"
"Because it didn't fit in my purse and I thought I could go back to the car and get it."
"Are you sure?"
"Yes, it's in the car."
Just before the case was called, according to Metzger, Rinella finally got down to the matter at hand, telling her, "You must say yes to everything. I'll explain everything to you when you get back to my office."
On the witness stand she did say yes to everything, but was exceedingly uneasy. "I was actually suffering inside," she wrote. "Something was not right and I could not bring myself to realize what was really happening to me. As soon as we were out of court, in 15 minutes, I told Richard that I had just said yes to everything that I do not agree to. Richard said, 'Don't worry, you have plenty of time to redo what you said, and we'll put it differently on paper.'"
Then he said, "Let's get the camera."
After she sprang the bad news that she really didn't have a camera, Metzger said Rinella turned churlish: "What do you mean, you don't have the camera? I told you to bring the camera." He walked back to his office with Metzger, but told her he'd be tied up with a client for the rest of the afternoon.
A couple weeks later, following up on a letter she had written to him, Metzger stopped by Rinella's office and asked for an itemized statement of his charges, according to her complaint; he refused.
Metzger already had started looking for other lawyers, but they turned her down when they found out she was represented by Rinella. After several weeks she found one to whom she paid a $1,500 retainer. She thought it was worth it to get away from Rinella, whose handling of her case had her unsettled. "I felt that I was being extremely used and I was getting absolutely nowhere with my divorce," she told the ARDC. "His memory was not at its best at this time. He was not doing what he should."
According to her complaint, Metzger asked Rinella to return the $2,500 retainer she had paid him, but he refused. On May 30, 1984, under a settlement negotiated by the new lawyer, her divorce became final.
Metzger said she considered filing some kind of action against Rinella at the time, but she was legally tuckered out. "I just wanted to forget Richard Rinella and the whole degrading experience," she said.
Her feelings of exploitation would find no public expression--for a time.
On an April evening in 1983, amid the clink and chatter of a cocktail party, a short blond in her mid-30s stood talking to a tall and assertive lawyer in his mid-40s, Richard Rinella. They exchanged the small talk of the newly introduced and then, as it happened, the conversation turned to Rinella's specialty. The blond began to tell him about her ongoing divorce case. He listened well, commented knowingly, and emitted such an air of easy competence that she found herself wondering if this guy might do better by her than her present lawyer.
A couple of months later, she was sitting on the couch in Rinella's large corner office. She told him more about her case, its legal progress, and, in response to questions, the emotional and sexual aspects of her marriage. When she left she knew she was going to fire her lawyer and hire Rinella. In early July she paid Rinella a $7,500 retainer. According to a federal lawsuit she later would file, he told her that if his fees exceeded that amount, he would collect the rest from her husband.
During her next visit to Rinella's office, according to the suit, he started fondling her. She pushed his hands away, but he told her sex would make it "much easier" and fondled some more, said the suit.
The blond said she was at once shocked by the advance and fearful that resistance would affect the lawyer's attitude about representing her. She could not afford to retain a third lawyer, she said in the lawsuit, so she quit resisting.
There followed almost five and a half years of intermittent sex between her and Rinella, sometimes in his office, sometimes in her home, sometimes wherever they happened to be, according to the lawsuit. During at least one of their frolics, they apparently took some photographs, although the blond did not mention this in her lawsuit.
One day in May 1984, after a court appearance in the Daley Center, Rinella drove the blond to her home, according to her lawsuit. It was there in the upstairs bedroom that they were caught in the act by the blond's estranged husband. The blond covered herself as best she could and followed her spouse down the stairs and into the kitchen. Rinella started coming down the stairs, but before he reached the kitchen the blond told him to go back upstairs, at which point Rinella called the husband a dirty name.
The blond received her divorce in June 1984, after signing a settlement agreement that would enable Rinella to obtain a judgment against her for his fees. In her lawsuit she said she did not understand exactly what she was signing but that Rinella pushed the document in front of her as she waited to testify in court, telling her to hurry up and sign "the goddamn thing."
She did, and in July found out she owed Rinella $2,500, money he originally said he would get from the husband. The husband, though, had choked off the money supply after the stormy bedroom scene, and Rinella had not pressed the issue for fear that the husband might blow the whistle on him, according to the blond's suit; she said she continued to grant Rinella sexual favors because she feared that refusing him would prompt Rinella to collect the $2,500 through a lien on her home, which he was entitled to do by the terms of the settlement she had signed so hurriedly.
By May 1986, the woman was having some difficulty with her ex-husband, who she claimed was not honoring all the terms of the settlement. She felt she needed Rinella's help, and he said he would represent her under the "same terms" as in the past. This she took to mean, according to her lawsuit, that she "would have to continue to submit to his sexual demands in order to receive his continued legal representation."
Submit she did, according to the suit, until October 1988, when she finally had had enough.
Joanne Pitulla had been married for 23 years when in early 1981 she hired Richard Rinella to get her a divorce, and in October of that year she got one. However, she never could get an itemized statement out of him. That bothered her because she wasn't sure what he had done to earn the $10,000 he charged her. The only reason she paid him, she said, was because he threatened to block her final decree if she didn't. She kept demanding an itemized bill, and he kept refusing, until finally she took the matter to higher authorities.
She lodged formal complaints with the Chicago Bar Association and the ARDC, but Rinella beat those back. Finally she filed a complaint in circuit court. By this time it was 1983 and Pitulla was in law school.
Rinella was getting pretty irritated by the whole process, and he filed a couple of petitions of his own, contending not only that Pitulla didn't have any money coming but that she actually owed him more money because of all the expenses he had incurred fending off her complaints.
Judge John F. Reynolds, who not long afterward would close his judicial career by going to prison for bribery, said Rinella's position was absolutely correct and awarded him $3,500. Pitulla appealed, and the Illinois Appellate Court said Reynolds was absolutely wrong. The appellate court sent the case back down to be heard again in the lower court.
In 1988 Rinella was ordered to refund more than $6,000 of his fee and pay almost $4,000 in interest to Pitulla. After further litigation, he was ordered in 1991 to pay Pitulla sanctions of nearly $20,000 for making a false statement in legal papers he filed in his defense; he currently is appealing that order.
Jeanne Metzger had withdrawn into her own life after her divorce, but she said she never completely put Rinella's treatment of her out of her mind. By 1987, she said, she had begun to feel "that many other women probably also were being sexually exploited, and I decided to do something about it."
After reading a newspaper story about the Pitulla case, Metzger typed a complaint and sent it to the ARDC, detailing Rinella's alleged sexual exploitation of her, his odd behavior on the day of the prove-up, and his refusal to give her an itemized bill and return her $2,500 retainer.
In his written response to the ARDC, Rinella denied ever having sex with Metzger and said the whole thing was a matter of money--the unrefunded $2,500 retainer.
"It is very unfortunate," Rinella wrote, "that three and a half years after my withdrawal from her case Mrs. Metzger is still upset by my refusal to refund any retainer fees to her and seeks to punish and embarrass me by making these false allegations."
The ARDC subpoenaed Richard Doermer, owner of the Dearborn Park apartment where Metzger said Rinella took her with little brown bottles of love potion. According to an ARDC transcript, Doermer testified that he never had let Rinella use his apartment, that Rinella did not have a key to the apartment, and that no one would have let Rinella into the apartment without his knowledge. He also said he couldn't recall having met Metzger.
Although Metzger seemed to know details about the layout and appointments of the apartment, the commission dismissed her complaint.
While the disciplinary matter was pending, Metzger contacted Pitulla, who by now had her law license. Pitulla suggested that she contact the Northwestern University Legal Clinic.
The clinic is a training ground for law students. It undertakes two kinds of cases--those of poor people and those that, in the words of its director, Professor Thomas F. Geraghty, "present important issues of social, civic, or public interest."
Metzger made an appointment with John S. Elson, a law professor and veteran attorney at the legal clinic. After conferring with Geraghty and Robert W. Bennett, dean of the law school, Elson agreed to represent Metzger in a malpractice suit against Rinella and his law firm.
Elson drafted a lawsuit repeating the substance of the allegations Metzger had made before the ARDC and, as a matter of courtesy, sent Rinella a copy. Rinella contacted his malpractice insurance company, which arranged to have Thomas P. McGarry, a partner in the Chicago law firm of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, represent Rinella. McGarry contacted Elson and asked what it would cost to settle the case out of court. Elson suggested $150,000.
When Rinella heard the settlement offer, he exploded. He called Elson and ran off such a string of invectives that Elson later demanded an apology.
About the same time, Elson was contacted by four other former Rinella clients who, like Jeanne Metzger, had seen newspaper stories about the Joanne Pitulla case. One was the blond from the bedroom, the others women who had fee complaints similar to Pitulla's. Elson agreed to represent all four and upped the settlement ante in the Metzger case to $450,000.
When it became apparent that Elson could not be dissuaded from filing the Metzger suit, Rinella and McGarry launched a preemptive strike. They rushed over to chancery court with a request for an injunction. The injunction would prevent Metzger and Elson from using Rinella's name in the lawsuit.
Not only did Rinella want his name kept off any documents filed in the case, he wanted the entire file suppressed--that is, hidden from public scrutiny. He wanted all proceedings conducted behind closed doors, and he wanted to forbid Metzger and Elson from speaking publicly about the case.
Such requests, much less the granting of them, are extraordinary, given the free-speech implications. Moreover, there is a statutory right to public access to court records--a right most judges take seriously; when Judge Richard L. Curry became presiding judge of the circuit court's chancery division in 1990, one of the first things he did was urge the division's judges to use caution in sealing files.
On the December day in 1989 that Rinella and McGarry rushed to the 24th floor of Daley Center with their request for an injunction, however, the presiding chancery judge was not Curry but the man he replaced--David J. Shields, who would later be convicted of federal bribery charges as a result of the "Operation Gambat" investigation of corruption in the First Ward.
Shields allowed Rinella and McGarry to label their petition John Doe v. Jane Doe instead of using the names Rinella and Metzger. A clerk entered the case into a computer for random assignment to a chancery judge, and the computer sent the case to Roger J. Kiley Jr., a respected judge and son of a former U.S. Court of Appeals judge.
In his courtroom one floor below Shields, Kiley told McGarry in no uncertain terms that there was no precedent for granting the sweeping injunction Rinella had requested. This was not what Rinella wanted to hear, so he and McGarry zipped back before Shields, where Rinella did much of the talking. He verbally assaulted Metzger as "vindictive" and "emotionally unstable" and John Elson as "a vicious, unethical person."
"I empathize with your problem," said Shields, who then granted the request that Kiley had just denied. This was an unusual act because, as presiding judge, Shields was not a superior judicial officer to Kiley, only a superior administrative officer. The power to reverse other judges' judicial actions normally is the province of the appellate court--a fact of which Shields fleetingly took notice, telling Rinella and McGarry, "I can't say: 'Roger, you know, I think you're wrong.'" After a little back-and-forth banter with the lawyers, however, Shields in effect did just that.
Metzger's case was not the type that would be handled in the chancery division; only the injunction would be handled there. The case itself would go to the law division, so Shields called the presiding judge of that division, Pasquale A. Sorrentino, and explained the problem. Sorrentino instructed one of his subordinates, Judge Lester D. Foreman, to hear a motion by McGarry to keep the file secret once the case was filed in the law division. Foreman, who empathized with McGarry's client as strongly as Shields had, impounded the file and imposed a gag order, forbidding Metzger and Elson from publicly discussing the content of the complaint or revealing the names of the litigants.
On December 9, 1989, Elson filed Metzger's lawsuit under the title Suppressed v. Suppressed. The complaint sought $1.5 million in damages, alleging that the latter Suppressed played on the former Suppressed's emotional vulnerability and used the attorney-client relationship to achieve his own sexual gratification.
The case was assigned to Judge Odas Nicholson. It was "a case of first impression," meaning that it raised issues never before decided by the courts. The first-impression issue was whether having sex with a client violates a divorce lawyer's "fiduciary duty" to act in the client's best interest.
Judge Nicholson's first task was to entertain a motion by Rinella's lawyer, McGarry, to dismiss the complaint as legally groundless. In deciding motions to dismiss, judges do not decide whether the allegations are true; in fact, for purposes of the motion, the judge has to assume that they are true. The questions before Nicholson at this point were whether the sex, assuming it occurred, violated a fiduciary duty that Rinella owed Metzger, and whether there were any other technical grounds to block the suit.
Elson argued that a sexual relationship creates an immense conflict--most obviously in its potential impact upon the possibility of the spouses' reconciliation. He also noted that the Illinois Appellate Court had ruled in 1985 that a therapist breached a fiduciary duty by having sex with a woman during the course of marriage counseling. To grant McGarry's motion to dismiss, said Elson, would apply a lesser standard to a lawyer than existing law applied to a marriage counselor.
McGarry contended that even if Rinella did have sex with Metzger, it wouldn't violate a fiduciary duty. To prove that, he said, Metzger would have to show that the sex somehow compromised her legal action--perhaps that she might have received a better settlement except for the sex. Metzger had not made that claim.
McGarry also argued that Metzger's suit was not a malpractice claim, as Elson had insisted, but a personal injury claim--a crucial technical distinction. The statute of limitations was five years for malpractice, but only two years for personal injury. A personal injury suit, unlike a malpractice suit, would be barred by the statute of limitations.
Nicholson agreed with McGarry on both grounds and threw the suit out of court. Elson promptly took the case to the Illinois Appellate Court.
The large courtroom where the Cook County branch of the appellate court hears arguments is on the top floor of the Daley Center, eight floors up from the law division. With a ceiling perhaps 20 feet high, it presents an aura of quiet dignity that most people find appropriate to the serious duties of the court. The walls are wood-paneled, and so is the bench, behind which three members of the court sit in high-back leather chairs looming over the well of the courtroom.
There are several rows of pewlike spectator seating on either side of an aisle in the back of the courtroom. Into one of them on the morning of November 7, 1990, slipped Jeanne Metzger, the first Suppressed in Suppressed v. Suppressed, the case being argued that day.
Courtrooms, especially the ones where appeals are heard, are unaccommodating places. There is a clubbiness among court personnel that makes others feel like gate-crashers. Citizens, even self-assured ones, become uncertain and obsequious, as if an involuntary cough might result in a contempt-of-court citation.
Metzger was fidgety and anxious, fearful that Rinella might arrive. She was relieved that he did not, although there were plenty of other people filling the room. Many were reporters who, in spite of the gag order, were aware of who was involved in the case.
The judges filed in and took their seats: James C. Murray, Michael A. Coccia, and Francis S. Lorenz.
Jeanne Metzger was not impressed with Lorenz. In a letter she wrote to the Illinois Judicial Inquiry Board, she claimed that he seemed bored and inattentive through much of the hearing of her case, staring chin in hand absently into space. But as the argument turned to sex, Lorenz seemed to shake himself out of his stupor. He listened and, grinning, inquired about the frequency of the alleged sex. "I could understand once, maybe," Metzger quoted him as saying. "Twice, I don't know. But three times, naaw, she must have enjoyed it."
There was more argument and more chuckling by the eminent jurist before he offered one final great thought, according to Metzger: "If the court ruled for the plaintiff, then the divorce bar would have to change the fee couch and barter as a way of doing business."
(Metzger's complaint against Lorenz became moot: he retired from the bench before the Judicial Inquiry Board took action. He does not recall making the statements and says they do not reflect his attitudes; there is no record of the proceedings.)
Some weeks after the oral argument, Murray wrote the court's unanimous opinion. "This is a case of first impression despite the fact that the activity involved has been considered wrong since biblical times," he noted. "Certainly this court is not so naive that it believes that the lack of case law is due to an absence of such activity within the legal community. However, our recognition that such activity exists, and our disapproval of it, is not what is at issue here."
Instead, the issues were technical--whether a divorce lawyer who seduces a client breaches a fiduciary duty, and whether the statute of limitations was two years or five. The court agreed with Judge Nicholson that a divorce lawyer breaches no fiduciary duty by having sex with a client. Having found that, it saw no need to address the statute of limitations issue.
As a matter of public policy, the court added, suits like Metzger's should not be allowed because they could give rise to "blackmail by unscrupulous persons seeking unjust enrichment."
That statement was too much even for the profession-protective Chicago Bar Association, which later would say, in a direct reference to the appellate court's remark: "The risk of fake or frivolous claims has never been and should not now be a reason for not having an appropriate rule on the subject. Criminal law faces this problem all the time in sex crime cases, but certainly no one would suggest that there not be laws prohibiting rape and other sex crimes."
In its opinion, the court made one observation that may be useful to women who take their lawyers to court over sex. Lawyer-client sex, said the court, would violate a fiduciary duty if the lawyer "actually made his professional services contingent upon sexual involvement."
The appellate court is the last court to which a litigant in Illinois may appeal as a matter of right. The Illinois Supreme Court takes only cases that a majority of its seven members wish to hear (with a couple of exceptions irrelevant here).
Elson petitioned the supreme court to review the case in 1991, writing: "The importance of Supreme Court review of the Appellate Court's decision lies not merely in the fact that it decides an issue of first impression for the nation. Left intact, the decision's protection of divorce lawyers' freedom to make unwelcome sexual advances on their clients would send a nationwide message about the legal profession in Illinois that is legally and ethically indefensible."
The supreme court, without giving a reason, refused to accept the case.
In February 1989, the short blond who had met Rinella at a cocktail party learned about Metzger's case. The blond thought she might have a sexual harassment case against Rinella too, and so did John Elson.
Elson sent Rinella a letter informing him of the woman's intention to file suit. Rinella did not take it calmly. According to the suit as it was later filed, he said he would "rip her to shreds" and get everyone he knew to make her "look terrible--like a slut." He also allegedly sent her a letter saying, "Don't do this to me. You'll be sorry."
Elson filed the suit, this time in federal court, where the file was open to the public but, in place of the real names, "Jane Doe" and "John Roe" had been substituted.
To get into federal court, Elson contended that Roe's action violated civil provisions of the federal Racketeer Influenced Corrupt Organizations Act (RICO), which provides for triple payment of damages to "business or property" that occur in violation of the act.
The suit claimed that Roe "fraudulently exerted undue influence over Plaintiff in order to take sexual advantage of her" and fraudulently concealed from her "his regular practice of requiring submission by certain of his female clients to his sexual demands as part of the cost of his legal services."
U.S. District Court Judge William T. Hart dismissed Doe v. Roe, holding that the attorney's alleged coercion of his client into "sexual servitude" did not "constitute an injury to business or property."
The U.S. Court of Appeals upheld the ruling, thus ending Roe's trek through the federal courts. But in the meantime the Illinois Appellate Court came down with its ruling in Jeanne Metzger's case that a lawyer would violate his fiduciary duty if he "made his professional services contingent upon" the client having sex with him.
Elson filed a malpractice suit in circuit court alleging that Rinella did exactly that. Metzger had not made such a charge, so Doe still has a chance to succeed where Metzger failed.
If she prevails, her case will have important implications for the legal profession in Illinois and the rest of the country. For the first time a divorce lawyer will be held liable for sexually exploiting a client. That would do more to curtail attorney-client sex than any changes in ethics rules.
Not content with successfully defending himself against most of the complaints against him, Rinella went on the attack in the spring of 1992. His firm filed a circuit court suit accusing Elson, Pitulla, and Northwestern University of "maliciously and for their own spiteful purpose" attempting to harm the firm's relationships with its clients.
The suit contended that Elson and Pitulla were contacting former clients of the Rinella firm in hopes of having them file complaints against the firm. Elson and Pitulla countered that they didn't do anything of the sort--that the complaints just came rolling in on their own.
The case was heard before Presiding Chancery Judge Richard Curry, who had taken over for the convicted Shields. Curry's long-standing public opposition to suppression orders had been adamant, and the Rinella firm didn't even bother asking for one. Curry dismissed the case, but not before the firm was identified in an affidavit filed by Northwestern University lawyers as the firm referred to in Suppressed v. Suppressed and Doe v. Roe.
Although the litigation did not name Richard Rinella personally--referring rather to "a member of the Rinella firm"--a document Elson filed with the Illinois Supreme Court in another client's case specifically identified Rinella as the lawyer involved in both Suppressed v. Suppressed and Doe v. Roe.
Given an opportunity to respond to the charges related in this article, Rinella claimed that Jeanne Metzger was an unstable person, who recently had made a wild, unsubstantiated allegation involving drugs against another lawyer. He also cited a petition she recently filed in Lake County seeking to relinquish custody of her two younger sons to her former husband. (Metzger did not want to comment on the drug charge; the custody petition, she said was a tactic to force her ex-husband to pay certain of the children's medical expenses.)
As for the blond, known in legal papers as Doe, Rinella provided affidavits from three of her female acquaintances portraying her as a sexually aggressive person who had been photographed baring her breast at a party celebrating her divorce in 1984.
In May 1991, Jeanne Metzger testified before the Illinois Senate Judiciary Committee, which was considering a bill that state senator Adeline J. Geo-Karis had introduced at Metzger's behest to limit sex between lawyers and clients.
It had been a rather difficult two years since Metzger had made her charges against Rinella. The ARDC found no merit in her allegations, and the courts never considered the substance of those allegations, dismissing her case on technical grounds. She had been belittled by Rinella, gagged by the courts, and snickered at from the bench, but she had shown resiliency, and what she had done would force the organized bar to take a position on the issue she raised.
The Illinois senate, after hearing Metzger testify, approved a resolution by a wide margin directing the state supreme court to adopt a rule prohibiting lawyer-client sexual relationships.
The board of managers of the Chicago Bar Association unanimously recommended that the supreme court adopt a rule to prohibit lawyers from using intimidation or undue influence to obtain sex from clients.
The American Academy of Matrimonial Lawyers adopted an ethical guideline saying that "an attorney should never have a sexual relationship with a client or opposing counsel during the time of representation."
The American Bar Association's standing committee on ethics and professional responsibility issued a formal opinion concluding that, under most circumstances, lawyer-client sex violates a lawyer's ethical obligations to the client.
The rule-making authorities in three states--California, Oregon, and New York--adopted rules prohibiting all or most lawyer-client sex.
To date, however, the Illinois Supreme Court has refused to establish a rule on the subject.
The blond known in court documents as Doe never filed a complaint with the Illinois Attorney Registration and Disciplinary Commission; she thought, in view of the Metzger case, that nothing would come of it.
Under supreme court rules, however, attorneys are required to notify the commission when evidence of misconduct by another lawyer comes to their attention. To comply with this requirement, John Elson had sent a copy of Doe's federal complaint to the commission.
The commission summoned the blond to appear before it. She agreed to testify on the condition that she be guaranteed anonymity. When an attorney for the commission orally agreed, she revealed that photographs had been taken during at least one of her trysts with Rinella. Later the commission obtained photos purporting to show Rinella unclothed in the blond's home.
The commission summoned Rinella to appear in March 1991, before obtaining the photographs. When asked under oath about the blond's claim that her husband had caught them having sex, Rinella acknowledged having encountered the husband in the home but claimed that the blond was merely showing him around. The commission took no action at that time.
But in March of this year, after obtaining the photographs, the commission summoned Rinella again. He repeated his contention that the blond was just showing him around the house. Then, according to an official ARDC document, this exchange occurred:
Q. And you deny that you were undressed at the time he entered the room?
Q. And you deny that she was performing oral sex on you at the time he entered the room?
Q. And you deny that any type of relationship of that nature occurred between the two of you in May of '84 at her house?
Q. You deny that that type of relationship occurred between the two of you at any time at her house?
The questions were rephrased three times, and each time Rinella repeated his unequivocal denial that he ever had sex with the blond.
Then these exchanges occurred:
Q. Did you ever pose for any pictures for Ms. [name deleted]?
A. Pose for pictures?
A. I mean, what type of pictures? I don't know.
Q. Nude pictures?
A. Not that I--no.
. . . Q. At any time, did you have a picture taken of yourself, without your clothes on, in [her] home?
A. No, N-O. Now, have I ever had a picture taken of myself without any clothes on? . . . That's a different story.
Q. That's my question. That's as far as--I want you to--I want you to understand that question, and I am going to ask you once more, because I am afraid you don't understand. . . . At any time, did you have your picture taken by anyone, without your clothes on in [her] home?
After the proceeding was adjourned, Rinella was shown photographs purporting to show him naked in the blond's bedroom.
On June 16 Rinella returned to the ARDC and acknowledged that the photographs were of him; but now he claimed that they were taken in 1988, when he no longer represented the blond.
He was asked these questions and provided these answers:
Q. You indicated that you went to her house on one occasion in 1988 and had sexual intercourse with her?
A. Right, after she, you know--
Q. Was that the only time that you ever had sexual intercourse with her?
A. There may have been another time after that, . . .
. . . Q. And you have admitted that you have had sex with this lady . . . in her home, contrary to what you told us in the last situation.
A. Yes, I understand that, sir.
He repeated that the photographs were taken in 1988.
Q. Are you now agreeing that those are the--that those photographs were in fact taken of you at [her] house?
A. I don't know where else they would have been taken. They would have to be.
As a result of these exchanges, the ARDC on August 16 of this year charged Rinella with conduct "involving fraud, deceit, dishonesty, and misrepresentation" and with two counts--one each for Metzger and Doe--of "failure to represent a client with undivided fidelity," and "conduct which tends to defeat the administration of justice or bring the courts and legal profession into disrepute."
Rinella, now represented by attorneys Michael W. Coffield and George B. Collins, filed a motion with the Illinois Supreme Court seeking to have his name kept confidential until the disciplinary charges were resolved, but the motion was denied.
Coffield and Collins now are trying to get the commission's complaint dismissed. In a motion filed with the ARDC they contend that the alleged sex acts themselves, even if true, would not be illegal and therefore are not subject to disciplinary action.
Concerning Rinella's alleged perjury, his lawyers contend that his admission to having sex with the blond falls within a "zone of privacy" because, at least according to Rinella, the acts occurred when he no longer represented her.
The lawyers point out that in order to constitute perjury, any false statement must be "material to the issue or point in question." They argue that, assuming the blond cannot prove that the sex occurred while Rinella still represented her, Rinella's false statements under oath were not material to the commission's inquiry.
If that argument doesn't fly, Rinella has another one, which his lawyers have laid out in a memo attached to their motion to dismiss:
"The complaint bases its charge on the presumption that one gender is weak and the other strong, that a male attorney gains a benefit from a consensual sexual liaison different from the benefit gained from that liaison by a female person, and that the genders are not equal, but are in fact so unequal that a female is entitled to protection as that afforded an infant or an insane person . . .
"The genders are, and should be equal. The law should not patronize women with a presumption of weakness that defames the right which every woman shares with every other person to control her life in every aspect. A charge which requires a contrary presumption creates a gender specific law and is a violation of our Constitution . . . "
In other words, a victory for Jeanne Metzger and the blond would be a defeat for all of the courageous women who have fought long and hard for equality of the sexes.
This view contrasts rather sharply with that espoused by Metzger, a single mother who once faced the uncertainties of a divorce and was frightened of the future. When she appeared before the Illinois Senate Judiciary Committee, she quoted from Malice Aforethought: How Lawyers Use Our Secret Rules to Get Rich, Get Sex, Get Even . . . and Get Away With It, a book by David Marston, the former U.S. attorney in Philadelphia:
"When an attorney makes a move behind closed doors, then it's rarely a private affair between two consenting adults. . . . More likely it's a lawyer abusing his position of trust."
Then she made an observation of her own:
"If you can understand that a man with a knife or a gun can force a woman into sexual submission, then please try to understand that there are many other weapons that are equally or more effective. One such weapon is the ability to manipulate a woman's fear of losing her children or her home."
Art accompanying story in printed newspaper (not available in this archive): photos/Yael Routtenberg.