In our Practical Practice Tips: The Art of Ending Work Relationships, we concluded by promising another entry on the thorny problem of conducting personal relationships with clients and/or their spouses.
This is a temptation that seems to be irresistible to many, with legion stories cataloging bad behavior and worse– everything from the divorce lawyer who got caught in the courthouse literally with his pants down with his mentally unstable client seeking custody of her three kids to the criminal lawyer who "loved" her poor, black diminished capacity client onto death row and a lethal injection. Even "The Good Wife," one of the best portrayals of the legal workplace to hit TV, took on the subject last year when Diane Lockhart of Lockhart & Gardner took as a client her flirty ballistics expert and then proceeded, between protestations about ethics, to take him as a lover as well.
So what in fact are the ethical rules about the matter?
Here’s a little pre-history summary provided by Richard Komalko: Up until 2002, not a single state had a law that explicitly prohibited attorneys from sleeping with their clients [or their clients’ spouses]. And while most states do have such laws today, they are pretty watered down. Rule 1.8(j) of the Model Rules of Professional Responsibility says that "A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced." In other words, you can take your lover as a client, but you can’t take your client as a lover. [Hence, Lockhart’s protestations.]
By comparison, the rules of professional ethics for doctors are far more stringent. The Hippocratic Oath, written about 2,500 years ago, forbids physicians from having sexual relations with any patients or even family members of patients… The American Medical Association, the American Psychiatry Association, the American Psychological Association, the National Association of Social Workers, the American Counseling Association, and even the National Certification Board for Therapeutic Massage and Bodywork all strictly forbid their members from having sexual relations with clients/patients under any circumstance.
To its credit, the American Academy of Matrimonial Lawyers, in its Standards of Conduct in Family Law Litigation, prohibits absolutely "a sexual relationship with a client or opposing counsel during the time of the representation" (§ 2.16 ). The ABA’s Rule 1.8 (j), while a "per se" (without exception) prohibition, still embodies the exception mentioned above–not to worry if you already have such a relationship with the person before taking him/her on as a client. This is an odd bit of arcana that has survived repeated questioning, particularly since many experts consider sexual relations with a client of any stripe (whether former lovers or not) prohibited in the first instance by conflict of interest and breach of fiduciary rules.
ABA Rule 1.7 Conflict Of Interest: Current Clients declares it unethical to accept a client when… (a) (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. Although Rule 1.7 allows the representation to take place anyway with the client’s consent as long as…(b)(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client. A difficult judgement to make with your knickers on the ground.
There are distinctions that currently exist among states that should be taken note of. Evidently California, Florida, Iowa, Minnesota, New York, North Carolina, Oregon, West Virginia, Utah, Wisconsin and Maryland have adopted express prohibitions in some variation of the ABA rule. Alabama, Arizona, Massachusetts, Michigan, New Jersey, Oklahoma, Texas and Washington either considered or are presently considering a similar rule. And at least one state, Georgia, considered a bill to criminalize attorney-client sexual contact. Colorado, Georgia, Illinois, Indiana, Kentucky, Kansas, Louisiana, Michigan, New Hampshire, New Jersey, South Carolina, Ohio, Rhode Island, South Dakota, Hawaii and Texas have issued disciplinary decisions holding that such relations during representation violate the rules of professional conduct. Alaska and Pennsylvania have issued ethics opinions advising that the relationship is unethical.
While this list may not be entirely up-to-date, the clear trend among states is toward specifically prohibiting consensual attorney-client sexual contact during representation.
For those who feel they can’t control the impulse, knowing the variations in rules and punishments in these jurisdictions can be critical. In California, for example, evidently an attorney may sleep with his (or her) clients so long as the attorney does not make sex a condition of representation. And punishments range from a slap on the hand to disbarment. As Vivia Chen, the Careerist, points out, "the trick is for the libidinous lawyer to pick locales where the punishment is light. Here’s the surprise: Some of the Bible Belt states [like South Carolina and Mississippi] seem to be more forgiving about adulterous lawyers than a relatively liberal state like Michigan."
WHO the lawyer may not have sex with also varies. The American Academy of Matrimonial Lawyers rules specifically rule out opposing counsel as well as clients. Rule 1.8(k) of the Minnesota Rules of Professional Conduct has been interpreted to mean that in the case of clients that are organizations rather than individuals, an attorney may not have sexual contact with any member of the client organization directly overseeing the case. The South Carolina Supreme Court held that a sexual relationship with a current client ‘s spouse is a per se violation of the conflict-of-interest Rule 1.7 "as it creates the significant risk that the representation of the client will be limited by the personal interests of the attorney."
With a full cast of media and legal commentators looking on, members of the State Bar of Texas recently rejected a proposed change in the ethics rules that would have barred sex with clients.The rule– banning sex between lawyer and client unless they are married, or engaged in a consensual relationship that began before the representation, according to a summary–was rejected by 72% of the lawyers voting.
“We will be one of the few states that doesn’t prohibit having sex . . . with clients," SMU law professor Linda Eads told Texas Lawyer, a contention disputed by others who believe that conflict of interest and breach of fiduciary duty rules are sufficient.
Suffice it to say that personal relationships with clients, their spouses, opposing counsel, the General Counsel of your client–all of these pose not only a challenge to delivering adequate legal representation but may also potentially ruin your career. A cool weighing of the postives and negatives might be in order.
Whether unethical or not, once the relationship is established, the procedure for ending it is not that dissimilar from ending a relationship in the office, unless the other party–client, spouse, etc.–is not so keen on ending it, in which case the threat of disbarment may really slow that disengagement down. This might be the time to engage your own counsel.
And remember. There’s always Washington D.C.–a jurisdiction that doesn’t bar such conduct. No doubt because it never really comes up.