Un June 23, 1997, the Kansas Board for Discipline of Attorneys convened to consider the conduct of Jerry L. Berg, a Wichita, Kansas, divorce lawyer. In separate complaints, six of Berg’s female clients accused him of improper sexual behavior. After considering the evidence, the panel recommended disbarment. Although no specific prohibition exists in Kansas banning attorney-client sexual relations, the board condemned “exploitation of the attorney-client relationship to the detriment of the client” (In re Berg, 955 P.2d 1240, 1247 (Kan. 1998)).
In one of the six complaints, R. M. reported consulting Berg about her divorce in August 1993, after her first lawyer had made no progress with her case. Berg and R. M. had first met during her parents’ divorce some three or four years earlier, and Berg had discussed with the then fourteen — or fifteen-year-old R. M. her alcohol and drug addiction problems. R. M., “stressed, confused, suicidal and seeing a counselor” (1244), now worried about losing custody of her one-year-old child to her husband, as well as ensuring his child support payments. On October 14, 1993, the night before her divorce was final, R. M. went to Berg’s office between six and seven o’clock to sign a property settlement agreement. Although she was below the legal drinking age, Berg invited her out, ordering several alcoholic drinks, including one called “sex on the beach.”
After discussing sexual matters, they returned to his office to sign further papers.
It was then, R. M. testified, that Berg “grabbed” and kissed her, and she performed oral sex on him. Although acknowledging that the sex was not forced, she reported being scared and worried that if she resisted, Berg would not represent her in court the next day. After the divorce was granted, R. M. endorsed an income tax refund as payment to Berg. Although she was still short by $200, Berg marked it “paid in full.” R. M. testified, “I felt like a whore because I felt like I had paid for my services the night before.” Berg did not send her any further bills. Their sexual relationship continued, as R. M. still consulted Berg on other legal matters. It ended abruptly on June 14, 1994, when Berg, seeking consolation after losing an important case, visited R. M. at her apartment. Recovering from a miscarriage, she refused to have sex, but he insisted. Two days later, she sent Berg a letter terminating his services as her attorney. Until then, R. M. stated, she considered Berg to be her lawyer.
In his defense, Berg contended that his sexual relations with R. M. did not start until October 15, 1993, after her divorce settlement. At that point, in his view, she was no longer his client. If the attorney-client relationship did not exist, Berg argued, the sexual relationship was legitimate. To bolster his defense, Berg brought in a psychologist who had been treating him as a sexaholic. Berg also stated he had been attending weekly Sexaholics Anonymous, Bible study, and Promise Keepers meetings, and finally that he was reconciling with his wife.
Berg appealed his disbarment. On March 6, 1998, however, the Supreme Court of Kansas concurred with the Board of Discipline’s decision to disbar Berg. Among other issues, the court determined that R. M. continued to be Berg’s client through June 16, 1994. In any case, the court declared:
It is no more persuasive to attempt to justify one’s conduct by arguing a scenario of scarcely letting the ink on the divorce decree become dry, extracting all available funds from the client (an income tax refund), and then writing off the balance of the bill with the stroke of a pen and immediately beginning to seduce with alcoholic drinks an under the drinking age and vulnerable client. (1255)
The Berg case reports spectacular mingling of intimacy, economic transactions, and professional relations. In such cases, lawyers and legal scholars constantly dispute exactly where to draw the line between proper and improper relations (see, for example, Bohmer 2000; Larson 1993;Mischler 1996, 2000; Schulhofer 1998). The discipline panel and the Kansas Supreme Court finally decided to treat Berg as a lawyer who had abused his relationship with a client.
In so doing, they denied that the couple were lovers or, for that matter, a prostitute and client. The parties hardly disputed what had happened, or even the participants’ intentions. At issue was whether the combination of relationships, transactions, and media was morally and professionally acceptable. The board and the State Supreme Court said no. They were defending a well-marked professional boundary from corruption in two opposite directions. On one side, they defended against the possibility that licensed practitioners would use their authority to gain illicit intimate attentions, thus bringing external dishonor and distrust on the profession. On the other, they defended against the possibility that intimate relations would lead practitioners to violate established understandings, practices, and relations, thus disrupting the profession’s carefully rationalized internal organization.
Consider another case that came to trial in Wisconsin six years before the Berg judgment. David Kritzik, a wealthy widower, “partial to the company of young women,” had over the course of at least six years given Leigh Ann Conley and Lynnette Harris, twin sisters, more than half a million dollars, in kind and cash: he regularly left a check at his office, which Conley picked up every week to ten days, either from Kritzik himself or from his secretary (United States v. Harris 942 F.2d 1125, 1128 (7th Cir. 1991)).
The case raises the issue of the taxability of monetary transfers to a mistress in long-term relationships.1 Were those transfers gifts or compensation? If gifts, Kritzik had to pay gift tax on the money; if compensation, the sisters had to pay income tax. The United States claimed that the money was compensation. As part of its evidence, the government argued that the form of transfer, a regular check, was that of an employee picking up wages. Sisters Harris and Conley were convicted of evading income tax obligations and sent to jail. After Kritzik’s death, however, their attorneys appealed the case. Although the government insisted that the form of monetary transfer identified it as compensation, the appeal pointed out that it could have been an entitlement: “this form of payment.. . could just as easily be that of a dependent picking up regular support checks”
(1129) . The district court, furthermore, rejected an affidavit presented by Kritzik to Internal Revenue Service investigators before his death, in which he stated that both Harris and Conley were prostitutes. The court dismissed his claim as a likely lie to protect himself from civil or criminal penalties for his failure to pay gift taxes.
The court finally agreed that Kritzik’s payments were gifts. Invoking legal precedent, the appellants’ counsel successfully argued that “a person is entitled to treat cash and property received from a lover as gifts, as long as the relationship consists of something more than specific payments for specific sessions of sex” (1133-34). A number of Kritzik’s letters to Harris entered the trial record as evidence of his continuing affection and trust. He wrote, for instance, that “so far as the things I give you are concerned—let me say that I get as great if not even greater pleasure in giving than you get in receiving,” adding, “I love giving things to you and to see you happy and enjoying them” (1130). In another letter, he told Harris, “I.. . love you very much and will do all that I can to make you happy”
(1130) , adding that he would take care of Harris’s financial security. [18]
What was appellants’ counsel doing? The appeal challenged the idea that economic transactions speak for themselves, as well as the effort to deduce relations from transactions alone. Indeed the judges in the case negotiated over exactly where to place the boundary of commercial and loving relationships. Judge Flaum, while concurring in the reversal of the sisters’ convictions, worried about the breadth of the principle that his fellow judges invoked: “I part company with the majority when it distills from our gift/income jurisprudence a rule that would tax only the most base type of cash-for — sex exchange and categorically exempt from tax liability all other transfers of money and property to so-called mistresses or companions” (1135).
Regardless of their philosophical differences, members of the court agreed that distinctions between categories of payment, in this case between a gift and compensation, hinge on the type ofrelation — ship between the parties involved: lover-mistress versus patron — prostitute. Courts had no choice but to examine the matching of relation, media, and transactions in order to identify the transactions’ legal standing. In fact, tax courts defined superficially similar relationships in other cases as prostitute-client, charging the woman income tax on her payments (see, for example, Jones v. Comm, r, 36 T. C.M. (CCH) 1323 1977)). Of course, if Kritzik and Harris had been husband and wife rather than lover and mistress, their transfers of money would likely have been tax-free domestic transactions.
By now, no reader should be surprised to see what the Kansas and federal courts were doing. Although they speak a language of intention and morality, courts do the legal version of relational work. They consult a matrix of possible relations among the parties involved, locate the relationship at hand within that matrix, establish distinctions from other relationships, and within the relationship insist on the proper matching of relation, transaction, and media. Exact boundaries within the matrix themselves become objects of contestation, as interested parties negotiate the line separating proper and improper forms of intimacy. With Berg and R. M., both the discipline panel and the Supreme Court of Kansas defined the contested relationship as attorney-client, setting it apart from ordinary lovers or prostitute-patron. They thereby declared Berg’s sexual interaction with R. M. and his billing procedures illegitimate. Ironically, they also agreed implicitly that if the relationship between the couple had been that of lovers, rather than attorney and client, precisely the same transactions would have been acceptable, or at least legal. The court drew a moral boundary, separating the proper relations of lawyer and client from those of lovers.
Boundaries between intimate relationships have some remarkable characteristics. Although participants, observers, and third parties commonly mark such distinctions with moral discourse and moral practice, rarely are the defining interactions on one side of a boundary or the other universally acceptable or unacceptable in themselves; they depend on context. Sexual intercourse, for example, becomes an enforceable obligation for spouses, an option for lovers, and a forbidden transgression for lawyer-client pairs. Similarly, expensive gifts become obligations in some relations, options in others, and forbidden transgressions in still others. The matching of relation, transaction, and medium matters crucially. Such boundaries also include temporal limits, so that questions arise concerning what relation a couple occupied at the time of a certain transaction: were they then a married couple, engaged to be married, unmarried lovers, spouses of other persons, business partners, lawyer and client, patron and prostitute, or acquaintances on a date? All these relations have fairly clear beginnings and endings. Between those temporal limits, participants, observers, third parties, and boards of discipline work to match relations, transactions, and media. When it involves intimacy, relational work takes plenty of effort.
Surprising features of intimacy do not end there. Counterintuitively, intimate relations rarely involve two persons alone. Third parties acquire strong investments in a pair’s intimacy and often act to channel, inhibit, alter, or even initiate the transactions and media a couple employ. The Berg and Kritzik cases have shown us the interest that professional associations and government agencies (in the Kritzik case, the Internal Revenue Service) exert over intimate relations. Parents, kin, friends, and fellow members of religious congregations often intervene to promote some versions of courtship
and to discourage others. When it comes to provision of advice, bodily care, confidential information, or emotional support, third parties frequently act very effectively to insure that the recipient of these services gets them from the right persons, under the proper definition, in an acceptable form, with appropriate compensation to the provider. Within intimate relations, the parties negotiate the particular forms and meanings oftheir relationship. But third parties almost always stand close at hand, defending the boundaries.
Outside the legal arena, in ordinary, everyday practice, people engage in a similar sorting of couples. They do not employ precisely the same distinctions as lawyers or invoke exactly the same moral evaluations of different kinds of relations. But they sort across the whole range of relations that involve the possibility of intimacy, from lawyer-client or doctor-patient to friends, neighbors, workmates, and kin. Legal and ordinary categories interact, furthermore; legal proceedings affect how people couple, whereas routine practices affect how the law works; we saw judges in both the Berg and Kritzik cases referring to current practices as they made their decisions.