Sex With Client Is Flirting With Disaster
Unless the intimate relationship occurred before the legal one, you're just asking for trouble
The number of cases involving intimate relations between attorneys and their clients reflects a growing problem that threatens not only the participating parties but also their colleagues and law firm partners.
Bar associations have reacted swiftly and severely to situations in which there was even a mere suggestion that an attorney exploited a client relationship, acted improperly or engaged in an intimate relationship with a client. For example, Pennsylvania recently enforced, for the first time, its rule against sexual relationships with clients. The sanction for violating the rule was a one-year law license suspension. (The court noted that the penalty would have been more severe if the attorney had not cooperated with the investigation.)
In Ohio, an attorney was suspended for one year because the court found that the attorney had suggested sexual contact in lieu of payment for legal services, even when no sexual contact actually occurred. Notably, the one judge dissenting from the one-year suspension advocated an indefinite suspension instead. In Michigan, an attorney who violated this rule is now facing federal charges for representing an under-aged prostitute in exchange for sexual favors.
Although some firms have an outright "no sex with clients" ban, this is not necessarily required by the ethical rules governing attorneys. Instead, whether to apply a limitation, a ban or an exception to those protocols depends on the circumstances of the representation and the relationship.
The ethical rules do not distinguish between the obligations on the individual attorney engaged in the alleged improper conduct and the obligations of the attorney's law firm to supervise and take appropriate steps to ensure compliance with the bar rules. Instead, it is incumbent on every attorney to act responsibly and to ensure compliance with the applicable rules.
Here are the most important things to know.
The rules do not prohibit
ABA Model Rule 1.8(j) advises that "a lawyer shall not have sexual relations with a client unless a consensual relationship existed between them when the client-lawyer relationship commenced."
In recent years, at least 29 states have adopted some version of this rule that ties professional sanctions or disbarment to sexual contact with a client. Many other states treat the rule as part of already existing obligations to avoid conflicts of interest, duties of candor and fiduciary responsibilities.
The assumption, obviously, is that the attorney did not use any confidential information or undue influence arising out of the attorney-client relationship to facilitate the intimate relationship. Instead, when the professional relationship predates the commencement of the intimate relationship, it is clear that the attorney could not have used any special relationship or trust to gain advantage toward an intimate relationship.
Consequently, attorneys and their firms routinely prepare wills for spouses, defend companies owned by domestic partners, and otherwise represent, assist and advise the interests of others with whom they have an intimate relationship. Although the rules do not prohibit such representations, the rules' exemption does not vitiate the attorney's obligation to continue to comply with every other rule applicable in the attorney-client relationship.
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.
For example, in Georgia, an attorney was disciplined under the state's conflict of interest rules after the attorney engaged in a sexual relationship with a client he represented in a divorce and custody matter. The attorney was suspended for three years because, among other things, an extramarital relationship could negatively impact the client's matrimonial case regarding things like alimony, custody and attorney's fees.
If an intimate relationship begins,
terminate the representation.
The risks are just too great not to immediately terminate any representation in which an intimate relationship develops.
As the Minnesota attorney learned from a two-day relationship, termination of the representation does not eliminate all of the risks. But ending it early can certainly reduce the risk.
J. Randolph Evans and Shari L. Klevens are the authors of Georgia Legal Malpractice Law, published by Daily Report Books.