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Conference Proceeding

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PROFESSOR SILVER: I want to explain briefly how I got involved in this work. I teach Civil Procedure and Professional Responsibility here at Touro Law Center. Years ago, in a Professional Responsibility class, we were discussing regulation of sexual relations between lawyers and clients. Those of you from New York know we have had a relevant rule for a few years now. Also, the ABA had issued a formal opinion on the same subject. More and more jurisdictions are beginning to regulate this area of the attorney-client relationship. We were talking about the problems that a sexual relationship could create in terms of fiduciary responsibilities and the conflict of interest that could arise, especially between the attorney's own interest and the client's interest. It came into my head and I said, what if an attorney develops a strong, amorous feeling toward a client but does not act on it? Would that be a problem in terms of fiduciary responsibility and conflicts of interest? The reaction of the class was swift and strong. "Thought police!" "1984!" "You can't do anything about that!"

I began to realize or focus more on the fact that whereas those working in helping professions such as psychotherapists and social workers are trained to expect transference and countertransference reactions in their relations with their clients, lawyers are trained to assume that the only things relevant to their relationships with their clients are how well they know the law and how well they can read and apply it. I also thought that neither legal education nor the profession do anything in any way to counteract that in training lawyers to think they don't have to worry about those psychological issues and those emotional issues. That could not be farther from the truth.

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