Some of my readers will be taking the MPRE this weekend, so it may be important for them to take a look at In the Matter of Inglimo, recently handed down by the Wisconsin Supreme Court.
Counts 1 and 2 relate to Attorney Inglimo's representation of L.K in a criminal case between April 2000 and January 2001. During this representation in October 2000, Attorney Inglimo had sexual relations with L.K.'s girlfriend in L.K.'s presence and with L.K. also engaging in sexual relations with his girlfriend during the sexual encounter. The referee further found, however, that there was no evidence that during the encounter there was any intimate physical contact between Attorney Inglimo and L.K.
...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.