If you have been following the legal wrangling surrounding Anna Nicole Smith’s death then you have undoubtedly heard an attorney or two on Court TV or CNN bring up the issue of Howard K. Stern and his sexual relationship with Smith, which began while she was his client. As many commentators have pointed out - sex and clients do not mix well for lawyers as far as the ethical rules are concerned.

Most states have adopted to varying degrees the American Bar Association’s Rules of Professional Conduct. These rules govern the conduct of attorneys (yes I know, it’s hard to believe, but attorneys really have code of ethics that they must follow.) Rule 1.8 (i) states, “A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.

The concept behind the prohibition is not difficult to grasp. Many times, due to the nature of the attorney client relationship, a client exhibits intense emotional vulnerability and often becomes dependent upon the advice and guidance of their attorney. Given this common situation, and given that attorneys have a legal obligation to maintain the utmost duty of good faith and fidelity to their clients, the courts have decided over the years that having sex with a client opens the door to the possibility that the attorney may exercise undue influence over the client or take unfair advantage of the client.

Should this occur during the course of representation, an attorney is subject to discipline by their State Bar Association. In the case of Anna Nicole Smith and Howard K. Stern, the issues run deeper. There has been mention that Howard K. Stern is the beneficiary of numerous life insurance policies. Stern also has been given a large amount of control in administering Smith’s sizable estate – which is estimated in the hundreds of millions of dollars. It has also been alleged that Stern bought drugs for Smith and even helped administer them to her. In addition, anyone who watched Smith’s reality show quickly caught on that Smith was usually incoherent and Stern was usually right there behind her.

Somewhere down the line, some attorney is going to make a claim that Stern took advantage of his initial role of an attorney and in doing so exercised undue influence over Smith so that he could position himself to profit from the relationship. The more that this story unfolds, the more that I anticipate this argument and similar ones will be made. One thing is clear; Howard K. Stern will likely be sitting on the opposite side of the counsel table for many years to come.

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