For decades, regulators and courts have ruled that sex with a client during the course of the professional relationship is unethical. Nonetheless, lawyers continue to flout precedent and are frequently disciplined for engaging in sexual relations with their clients.
Some cases of impermissible attorney-client sex are no brainers–such as the attorney who insists on a “legal services-for-sexual services” fee arrangement. Still, many attorneys believe that as long as the relationship is consensual, what happens between two consenting adults is none of bar counsel’s business.
That kind of thinking would be a mistake. Indeed, courts and bar organizations provide many justifications for regulating the personal aspects of the attorney-client relationship. And now the majority of jurisdictions in the United States include an outright ban on attorney-client intimacy during the course of the professional relationship.
The ABA Model Rule 1.8(j)
In 2002, following growing recognition of a “lawyer’s gone wild” problem, the ABA adopted Model Rule 1.8(j), which imposes a per se ban on attorney-client sex. The ban carves out only sexual relationships that predate the attorney-client relationship – after all, lawyers should be free to represent their spouses.
Today, over 30 states have adopted Rule 1.8(j). Most recently, on November 30, 2018, California replaced its previous regulation on attorney-client sex with a per se ban. California’s prior rule was criticized for being under-enforced because it left too many “outs” for the lawyer–such as requiring bar counsel to demonstrate that the sex resulted in the lawyer doing something else unethical, such as providing incompetent representation. In California’s experience, the prior test was unworkable, leading to the new per se ban.
It’s About Power
The traditional ethics-based rationales behind the regulation is a realization that sex is not about sex–it is about power. Or more precisely, an imbalance of power.
Clients come to their lawyers for help in solving their legal problems. For the relationship to work, clients must feel free to share with their attorneys their secrets, which could include very personal, intimate details of their lives. The information is sacred and must be used by the attorney only for the client’s best interests and consistent with the client’s legal needs.
Clients are also often emotionally vulnerable when they come to their lawyers for help. They may be facing a serious dilemma and their rights in their freedom, or their property, or their own personal or business affairs, may be at stake. The lawyer’s number one job is to protect their client.
Moreover, the attorney-client relationship is a fiduciary one. The client has placed complete trust in the lawyer who is bound to act in the best interest of the trusting party. A fiduciary relationship exists:
[w]herever confidence on one side results in superiority and influence on the other side; where a special confidence is reposed in one who in equity and good conscience is bound to act in good faith and with due regard to the interests of the one reposing the confidence; where confidence is reposed and accepted, whether the origin is moral, social, domestic, or merely personal; or where a person has knowledge and authority which he is bound to exercise for the benefit of another person.
There should be nothing, therefore, and no one, during the course of the relationship that interferes with or limits the lawyer’s professional judgment and the lawyer must be able to render candid advice to their client. Moreover, lawyers are prohibited from engaging in conduct that involves dishonesty, deceit, or misrepresentation, and engaging in a sexual relationship with a client—with all of the trappings that come along with such a relationship—could raise a substantial question as to the lawyer’s honesty or fitness to practice.
A sexual or intimate relationship started after the commencement of the legal representation has at least the reasonable possibility of adversely influencing the lawyer’s judgment, creating a personal conflict of interest, and allowing the lawyer to use client confidential information for the lawyer’s personal advantage.
When sex is thrown into the mix, the lawyer’s judgment could be clouded. They could be put into the situation of having their ethics questioned—even by their own client, who may feel that they were taken advantage of, were emotionally not able to consent, or gave into impulses either because of their vulnerable state or because they believed, rightly or wrongly, that intimacy was part of the quid pro quo for the continuing loyalty and zealous representation to which they were entitled. Thus, in addition to potentially harming the lawyers’ reputation and ability to practice, engaging in intimate relations with clients raises a non-trivial risk that the lawyer, whether intentionally or not, well intended or not, will violate one or more of the rules of professional conduct.
Cases involving attorney-client sex arise across practice areas, although history has proven that attorneys who practice in the areas of criminal law and domestic relations have a greater chance of becoming intimate with their client.
For example, in In re Disciplinary Proceedings Against Atta, an attorney represented a client in a divorce proceeding. During the course of the representation, the attorney told his client, whose husband had left her and married another, that the attorney had strong feelings for her and discussed one day marrying her. Subsequently the client accused her attorney of failing to timely file her divorce papers and asserted the attorney had “taken advantage of her by engaging in a sexual relationship with her while she was in an emotional stage in her life.”
The Supreme Court of Wisconsin found that by representing his client while simultaneously engaging in a romantic relationship with her, the attorney violated: (1) Rule 1.7(a)(2), due to the lawyer’s material limitation based upon his personal interest; (2) Rule 1.16(a) for failing to withdraw from the representation once the conflict arose; and (3) Rule 1.8(j) by having sexual relations with a client while representing her in the divorce action. Other related ethics rules also were alleged to have been violated arising from the attorney’s denial of having any sexual or inappropriate contact with the client, including during the course of the bar counsel’s disciplinary investigation and court proceedings.
The Exception to the Ban
The comments to Rule 1.8(j) clarify that a sexual relationship that predates the formation of the attorney-client relationship are not prohibited—at least not by Rule 1.8(j). Thus, one could under Model Rule 1.8(j0 take their lover as their client, but not the other way around—at least not during the existence of the attorney-client relationship. The comments to ABA Model Rule 1.8 note that this exception for pre-existing relationships could still run afoul of other rules of professional conduct and warns that “before proceeding with the representation in these circumstances [of a pre-existing relationship], the lawyer should consider whether the lawyer’s ability to represent the client will be materially limited by the relationship.
Organization as the Client
Rule 1.8(j)’s comments add further gloss when the “client” is an organization, in which case the rule “prohibits a lawyer for the organization whether inside counsel or outside counsel) from having a sexual relationship with a constituent of the organization who supervises, directs or regularly consults with that lawyer concerning the organization’s legal matters.
Ordinarily, if one attorney is conflicted from a representation, then all lawyers associated in a firm with that lawyer are also conflicted. The exception, however, is that imputed disqualification does not apply to conduct covered by Rule 1.8(j). The comments explain that “The prohibition set forth in [Rule 1.8(j)] is personal and is not applied to associated lawyers.
A slight majority of jurisdictions in the United States expressly ban attorney-client sexual relations that commence after the start of the representation. Other jurisdictions are still considering adding an equivalent to Model Rule 1.8(j) to their existing rules.
There are many ways that attorney-client sexual relations may interfere with the lawyer’s professional responsibility obligations to their clients.
Before entering into a “consensual” sexual relationship with a client, a lawyer should be mindful of the rules in their particular jurisdiction.
Whether or not the lawyer is practicing in a jurisdiction that has adopted some version of Rule 1.8(j), if the lawyer is considering entering into an intimate relationship with a client, they should consider what is in the client’s best legal interests. The attorney should strongly consider either referring the client to another lawyer or to refrain from entering into an intimate client relationship until the client representation has concluded.