Sex With Client Is Flirting With Disaster
Unless the intimate relationship occurred before the legal one, you're just asking for trouble
The most significant rules implicated in such a representation are those relating to candor and full disclosure; conflicts of interests (including the interest of the spouse or domestic partner in the representation), and confidences and secrets. As a result, although permitted, attorneys should have a heightened sensitivity to these ethical obligations—as well as the risks should a mistake occur—when intimate relationships are involved.
The risks are too high to begin an
intimate relationship during the
One Mississippi lawyer learned the hard way not to begin an intimate relationship during the representation. After he was retained to represent a married couple and their minor son in a medical malpractice claim, the husband-client moved to California to pursue a film career. After the couple ceased marital cohabitation, but while the attorney was still representing them both, the attorney and the wife-client began an affair that was discovered by a private investigator hired by the husband.
A few months later, the attorney terminated the representation and the couple divorced. Eventually the attorney and wife-client married and had a child.
However, the Mississippi court found that the fact that this relationship began during the course of the representation was tortious. The Mississippi Supreme Court upheld a $1.5 million judgment against the attorney on claims of alienation of affection, breach of contract and intentional infliction of emotional distress.
In January of this year, an attorney in Minnesota was barred from practicing law for at least 15 months after engaging in a sexual relationship with a client he represented in a divorce. The attorney terminated both the legal and personal relationships within two days, after which time the client attempted suicide and was hospitalized.
The bottom line is: just don't do it.
Based on the data, attorneys engaged in domestic litigation practices face a heightened risk in these situations.
Spouses facing divorce are sometimes especially vulnerable, hence the number of reported cases involving 'transference' by clients from their soon to be ex-spouse to their attorney continues to increase. Unfortunately, when that happens, the attorney becomes a virtual guarantor of the outcome of all proceedings. If things do not turn out, then it must be the attorney's fault because the attorney was looking out for his or her own interests and not solely focused on protecting the client.
In these situations, the risk of a bar grievance, combined with a breach of fiduciary duty claim, is unacceptably high. Worse yet, many insurance companies apply policy limitations and exclusions to avoid coverage —even for the innocent partners whose only conduce was to allegedly look the other way.
Once the representation begins, the presumption is that the attorney took advantage of the special trust and confidence of a vulnerable client, to the attorney's own personal advantage. Florida rules establish that it is misconduct to engage in sexual conduct "that exploits or adversely effects the interests of the client or the lawyer-client relationship." California Rule 3-120 is "intended to prohibit sexual exploitation by a lawyer in the course of a professional representation" because "a client exhibits great emotional vulnerability and dependence upon the advice and guidance of counsel."
Even without these specific rules, bar disciplinary agencies treat the conduct as a violation of multiple bar rules including improper conflicts of interests, violations of confidences and secrets, and generic unprofessional conduct prohibitions.