Imagine this scenario, the basic facts of which were taken from a recent thread on Twitter: Kiran, who is a very wealthy businessman, instructs you to prepare a prenuptial agreement. He plans to marry his girlfriend, Zara in the near future and tells you that they have discussed and consented to the terms of the agreement. Kiran is 45 years old and has a substantial net worth. He is already a valued client of the firm, and you have been told by the commercial partner to treat him as such. Zara is 22 years old, she works as a musician and has no capital, property or pension entitlement.
He wants you to insert a clause in the agreement which requires Zara to perform sexual acts a minimum of three times per week. If Zara doesn’t fulfil the minimum requirement, she has to make up for it the next week. The remaining terms of the agreement are perfectly acceptable given the information you have.
You have never before been asked to draft an agreement to include a clause referring to sexual conduct. You have a sense that this clause might be unethical and so you discuss it with your COLP who is also the commercial partner that Kiran regularly instructs. The COLP tells you to draft the agreement in accordance with the client’s instructions; she says that if there is a problem, then Zara’s solicitor will no doubt raise it. After all, it’s not your job to protect Zara’s interests. The COLP is clear that she wants to retain the valuable commercial work that Kiran generates and that you, as an associate shouldn’t jeopardise that in any way.
The central ethical question is whether solicitors should be involved in drafting any agreement which contains an unethical clause. Although that clause could be excised from the agreement without affecting the remaining provisions, the inclusion of the clause could have a profound impact on Zara. The mere fact that the clause is in the agreement could be interpreted by her as being both ethical and enforceable. It is even possible that she could believe that she would face serious civil and criminal consequences if she breaches that provision.
If you take the view that the ‘client is king’, you will probably draft the clause and find a justification for doing so. After all the COLP has made herself clear, you are expected to do as you are told. The most that you can do is to ensure that Kiran understands that the clause isn’t enforceable and that he should always seek his wife’s consent to sexual intimacy.
However, If you draft the clause can you be sure that you have acted in a way that “upholds the law and proper administration of justice”, as required by Principle 1 of the SRA Code of conduct? Since 1991 there has been no defence to a criminal charge of rape if a husband has non-consensual intercourse with his wife.
The theory that a wife gave her husband her body on entering the contract of marriage has long been debunked both in the Family and Criminal courts. In the 21st century, it seems incredible that Zara could give irrevocable consent of the kind that Kiran seems to be asking for. During the marriage, it is possible that Zara might not understand that she has the right to say no.
The COLP believes that Zara’s solicitor is responsible for protecting her interests, but the Principles need to be observed by all solicitors. What happens if Zara doesn’t instruct a solicitor? Are you then taking advantage of a third party, by drafting the agreement with an unenforceable and unethical term which could lead the parties to misunderstand the issue of consent to sexual relations?
Prenuptial agreements aren’t binding in England and Wales. The court will look at all the circumstances surrounding the agreement when deciding whether or not to give effect to the terms agreed by the parties. Disputes about prenuptial agreements usually pertain to the distribution of property, income, capital and pensions rather than clauses about the way in which the parties choose to arrange their lives.
Let us imagine, that you do as the COLP says and you draft the agreement with trepidation. Principle 3 states that you should not allow your independence to be compromised, by the client or other people within your organisation. By allowing the COLP to dictate what you should draft, you are possibly in breach of this Principle.
Zara’s solicitor receives a copy of the agreement and advises her not to sign it unless that clause is removed. Zara says that she and Kiran have agreed on the terms and although she had reservations about that clause to start with, he talked her round. Zara knows that he won’t marry her unless that clause remains in the agreement and she doesn’t want to risk that happening. In any event, she says, they have an active sex life, and she dismisses the possibility that Kiran would force her to have sex without her consent.
Her solicitor is aware that there is both an age and power imbalance between the parties. Zara doesn’t believe that Kiran will enforce the agreement in the future, but it is not clear what Zara would do if he overstepped this boundary.
Should Zara’s solicitor proceed on the basis that the client consents to the terms and arrange for the agreement to be signed by Zara? Principle 1 looms large, and this should put the solicitor in a difficult situation. Should her solicitor refuse to participate in the settlement of an agreement because one term is unethical and could lead to the client being assaulted in the future?
Solicitors should be careful about drafting any agreement which contains clauses of an unethical nature. The client is not king, your professional obligation to act in the best interests of each client doesn’t require you to do whatever the client wants. Kiran might think that the agreement is in his best interests in the short term, but he may not have thought about the long-term impact of the clause. The agreement could lead to a dangerous misunderstanding arising between the parties about consent, and this could lead to criminal charges.
The code of conduct states that solicitors “should notify the SRA of the requirement of any serious failure to comply with or achieve the Principles, rules, outcomes”. This applies both to self-reporting and to reporting such serious misconduct committed by any other person or firm. Should Kiran’s solicitor report himself for drafting the offending paragraph and also report the COLP for telling him to do it? The COLP has the same reporting obligations in this situation. Should Zara’s solicitor report her counterpart (and himself if he decides to act against his better judgement?).
The broader question is why these solicitors would countenance being involved in negotiating an agreement of this nature at all. Solicitors need to learn how to identify an ethical dilemma and give tough advice to a client who seeks to insert a dubious clause into any agreement. A client’s request to do something wildly out of the ordinary could have grave professional consequences, and these choices should be given proper reflection.
Mena Ruparel is a solicitor and a member of the Chartered Institute of Arbitrators