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.