How Close Can You Get To Your Client?

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Sex with clients is generally forbidden but it’s always a good idea to keep your personal life out of the office

By Wendy Patrick Mazzarella

Mazzarella

What rules apply when during the course of legal representation, a lawyer decides that he or she is becoming sexually attracted to his or her client? Both the California Rules of Professional Conduct and the ABA Model Rules of Professional Conduct prohibit lawyers and clients from engaging in “sexual relations” unless they predated the representation. Even then, however, other ethics rules may apply to the extent that sexual involvement may adversely impact the attorney-client relationship. This article will attempt to explore this issue by discussing California and ABA Ethics rules, ethics opinions and case law, including the rationale behind prohibiting such conduct between lawyers and clients.

California Rule 3-120, Sexual Relations with Client

In California, we have a specific rule governing sexual relationships between lawyers and clients. This rule explains in paragraph (A) that “[f]or purposes of this rule, “sexual relations” means sexual intercourse or the touching of an intimate part of another person for the purpose of sexual arousal, gratification or abuse.”

The balance of Rule 3-120 states:

(B) A member shall not:

(1) Require or demand sexual relations with a client incident to or as a condition of any professional representation; or

(2) Employ coercion, intimidation, or undue influence in entering into sexual relations with a client; or

(3) Continue representation of a client with whom the member has sexual relations if such sexual relations cause the member to perform legal services incompetently in violation of rule 3-110.

(C) Paragraph (B) shall not apply to sexual relations between members and their spouses or to ongoing consensual sexual relationships that predate the initiation of the lawyer-client relationship.

(D) Where a lawyer in a firm has sexual relations with a client but does not participate in the representation of that client, the lawyers in the firm shall not be subject to discipline under this rule solely because of the occurrence of such sexual relations.

The Discussion section of Rule 3-120 states that this rule “is intended to prohibit sexual exploitation by a lawyer in the course of a professional representation.” It continues to explain that “[o]ften, based upon the nature of the underlying representation, a client exhibits great emotional vulnerability and dependence upon the advice and guidance of counsel. Attorneys owe the utmost duty of good faith and fidelity to clients.” (citations omitted) The Discussion section continues to explain that “[t]he relationship between an attorney and client is a fiduciary relationship of the very highest character and all dealings between an attorney and client that are beneficial to the attorney will be closely scrutinized with the utmost strictness for unfairness.” (citations omitted) Discipline is appropriate for an attorney who takes advantage of his or her clients or exercises undue influence.

Another rationale behind the rule is stated in paragraph (B)(3), and also suggested in the last paragraph of the Discussion section, which explains that while paragraph (C) excludes representation of clients with which the lawyer has an ongoing sexual relationship from the scope of rule 3-120, such exclusion “is not intended to preclude the applicability of other Rules of Professional Conduct, including rule 3-110.” Rule 3-110 is Failing to Act Competently, which provides in paragraph (A) that “a member shall not intentionally, recklessly or repeatedly fail to perform legal services with competence.” Rule 3-110 paragraph (B) defines “competence” as including not only diligence and skill, but also “mental, emotional and physical ability reasonably necessary for the performance of such service.” Arguably, a lawyer who is romantically involved with his or her client may in some cases lack objectivity and thus not have the “emotional ability” to exercise independent judgment on a case.

Confidential communications and the duty of loyalty

There is no protection for communications made between lawyer and client within the context of their personal relationship. “Confidential communication between client and lawyer” is defined in pertinent part in California Evidence Code Section 952 as “information transmitted between a client and his or her lawyer in the course of that relationship.” (emphasis added) Unlike the marital privilege, there is no comparable privilege “between lovers” to protect statements not made within the context of the attorney-client relationship. (See In re Marriage of Kantar (Ill. 1991) 581 N.E.2d 6, 14, cited for this proposition in ABA Formal Opinion 92-364.) A “client” is defined in pertinent part in Evidence Code Section 951 as one who “directly or through an authorized representative, consults a lawyer for the purposes of retaining the lawyer or securing legal service or advice from him in his professional capacity.”

Regarding the duty of loyalty, the Restatement Third of the Law Governing Lawyers in Section 16 under subsection (e), duties of loyalty, specifically prohibits a lawyer from entering into a sexual relationship with a client if that relationship would “undermine the client’s case, abuse the client’s dependence on the lawyer, or create risk to the lawyer’s independent judgment.” Examples include divorce proceedings and abusive fee collection methods.

ABA Model Rules of Professional Conduct

Several ABA Model Rules of Professional Conduct may provide additional guidance on some of the issues relating to sexual relationships between lawyers and clients.

Rule 1.7, Conflict Of Interest: Current Clients

This Rule provides in pertinent part that a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. One of the ways this can exist is if “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.” (emphasis added)

Comment [10] explains that the lawyer’s own interests are not permitted to adversely affect his or her representation of a client. Comment [12] explicitly refers to Rule 1.8(j), stated below.

Rule 1.8, Conflict Of Interest: Current Clients: Specific Rules

This Rule states in paragraph (j) 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.”

Unlike California’s rule, under this ABA Rule, the term “sexual relations” is not defined. We may, however, draw some conclusions about the scope of that term by reading the rationale behind the rule as discussed in the Comment sections.

Comment [17] notes that the lawyer-client relationship is a fiduciary relationship where “the lawyer occupies the highest position of trust and confidence.” Because this relationship is usually unequal, “a sexual relationship between lawyer and client can involve unfair exploitation of the lawyer’s fiduciary role, in violation of the lawyer’s basic ethical obligation not to use the trust of the client to the client’s disadvantage.”

The Comment also notes that “such a relationship presents a significant danger that, because of the lawyer’s emotional involvement, the lawyer will be unable to represent the client without impairment of the exercise of independent professional judgment. Moreover, a blurred line between the professional and personal relationships may make it difficult to predict to what extent client confidences will be protected by the attorney-client evidentiary privilege, since client confidences are protected by privilege only when they are imparted in the context of the client-lawyer relationship.

Because of the significant danger of harm to client interests and because the client’s own emotional involvement renders it unlikely that the client could give adequate informed consent, this Rule prohibits the lawyer from having sexual relations with a client regardless of whether the relationship is consensual and regardless of the absence of prejudice to the client.”

Comment [18] notes that “sexual relationships that predate the client-lawyer relationship are not prohibited. Issues relating to the exploitation of the fiduciary relationship and client dependency are diminished when the sexual relationship existed prior to the commencement of the client-lawyer relationship. However, before proceeding with the representation in these circumstances, the lawyer should consider whether the lawyer’s ability to represent the client will be materially limited by the relationship. See Rule 1.7(a)(2).”

Rule 8.4, Misconduct

Rule 8.4 deals with maintaining the integrity of the legal profession. It states in pertinent part that it is professional misconduct for a lawyer to:

(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

(d) engage in conduct that is prejudicial to the administration of justice.

Depending on the nature of and the circumstances surrounding the sexual relationship between lawyer and client, these provisions may be implicated in some jurisdictions, particularly with a showing of undue influence by the lawyer. A sexual relationship with a vulnerable client has been specifically held to constitute conduct prejudicial to the administration of justice, (Oklahoma Bar Association v. Anderson (OK, 2005) 109 P.3d 326, 331) and grabbing a female divorce client, kissing her and raising her blouse has been specifically described as “illegal conduct involving moral turpitude” that adversely affected the lawyer’s fitness to practice law. (Matter of Adams (Ind. 1981) 428 N.E.2d 786)

Formal ethics opinions

It has been repeatedly recognized that certain types of clients are particularly vulnerable and can more easily be taken advantage of during a lawyer-client relationship. (In re D. Warren Ashy (Louisiana, 1999) 721 So.2d 859, 864) Obvious examples include clients involved in domestic violence or divorce proceedings. (See, e.g., Iowa Supreme Court Attorney Disciplinary Board v. Morrison (Iowa, 2007) 727 N.W.2d 115, 119 (“Sexual intercourse between the lawyer and a client seeking a dissolution of marriage carries a great potential of prejudice both to the client and to the minor children of the marriage.”))

ABA Formal Ethics Opinion No. 92-364 gives other examples of clients that have retained a lawyer in a time of crisis, including a criminal client, probate client or immigration client. The ABA Opinion also notes that client vulnerability may implicate ABA Rule 1.14, Client with Diminished Capacity, which states in paragraph (a) that “[w]hen a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.”

The Opinion also states that a lawyer-client sexual relationship may diminish the lawyer’s ability to provide competent representation per ABA Rule 1.1, Competence, which defines competent representation as “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” The rationale given for this conclusion includes issues of independent judgment, conflict of interest and unwarranted expectations regarding the preservation of confidences.

The Opinion also notes that unlike confidences imparted within the attorney-client relationship, there is no confidential privilege for people involved in a sexual relationship. (Citing In re Marriage of Kantar (Ill. 1991) 581 N.E.2d 6, 14)

In California, Formal Opinion 1987-92 discusses some issues that may arise within the context of certain types of representation. Although it predates Rule 3-120, Formal Opinion No. 1987-92 provides a summary of ethical considerations presented by a lawyer-client sexual relationship and discusses a number of hypothetical domestic relations-type cases where particularly thorny issues may arise. The Opinion notes at the outset that because such relationships are subject to such a wide variety of circumstances, a lawyer-client sexual relationship would not per se impair the lawyer’s ability to provide competent representation.

The Opinion goes on to warn practitioners, however, that even the most competent lawyers may be unable to separate sound judgment from the emotion and resultant bias that may result from becoming sexually involved with a client. While the Opinion discusses some complicated dilemmas that sex with a client can cause (in the context of a variety of domestic relations cases including divorce and child custody disputes), the conclusion is that all of the hypotheticals involve the danger of bias leading to issues of competence.

Among other considerations, the Opinion also notes the potential conflict of interest that can result when, for example, he or she represents both husband and wife in an action and is having a sexual relationship with one of them, which would implicate current Rule 3-310, Avoiding the Representation of Adverse Interests. The Opinion also covers a host of personal issues that can stem from a sexual relationship that may complicate the lawyer-client relationship as well as adversely impact the scope and boundaries of the representation.

What is a ‘sexual relationship’?

One ethics question I have been specifically asked is whether or not the rules barring sexual relationships between lawyers and clients bar a romantic kiss. While not defined by the ABA, the California rule defines “sexual relations” as “sexual intercourse or the touching of an intimate part of another person for the purpose of sexual arousal, gratification or abuse,” but it doesn’t specifically mention kissing, unless one were to argue it is included in the “touching of an intimate part of another person.” When we examine the rationale behind the California rule, however, it appears that the concerns about emotional involvement impacting independent judgment and competence would apply to a romantic kiss in the same way it would apply to the “touching of an intimate part” of another person for sexual arousal.

While conduct short of contact is not barred (such as having a “crush” on a client), even that kind of emotional involvement could impact other ethics rules such as those dealing with competence or conflict of interest. This is why all of the rules must be read together in order to ensure that a lawyer’s personal relationship with a client doesn’t adversely impact the representation in any way.

Conclusion

The wise lawyer will keep his or her personal life out of the office. A lawyer’s reputation for honesty, integrity and loyalty to his or her clients will remain intact by keeping professional relationships professional.

• Disclaimer: the information in this column is intended to be informational only and does not constitute legal advice. Please shepardize all case law before using.

• Wendy Patrick Mazzarella is a San Diego County Deputy District Attorney in the Sex Crimes and Stalking Division, immediate past chair of the San Diego County Bar Association Legal Ethics Committee and one of 16 members of the California State Bar Committee on Professional Responsibility and Conduct.

Certification

• This self-study activity has been approved for Minimum Continuing Legal Education credit by the State Bar of California in the amount of one hour of legal ethics.
  
  
• The State Bar of California certifies that this activity conforms to the standards for approved education activities prescribed by the rules and regulations of the State Bar of California governing minimum continuing legal education.

Self-Assessment Test

Indicate whether the following statements are true or false after reading the MCLE article. Use the answer form provided to send the test, along with a $25 processing fee, to the State Bar. If you do not receive your certificate within four to six weeks, call 415-538-2504.

1. A lawyer will be subject to discipline under California Rule 3-120, Sexual Relations With Client, if he or she touches a client not for purposes of sexual arousal, but for abuse.
2. Being emotionally involved with a client is specifically prohibited by Rule 3-120.
3. Lawyers are always barred from representing a client and having a sexual relationship with them at the same time.
4. A lawyer will not be subject to discipline if the sexual relationship with his or her client began at the same time as the representation.
5. A lawyer will not subject his or her partners in a law firm to discipline for a sexual relationship he or she has with a client if he or she does not have anything to do with the representation of that client.
6. Even though ongoing sexual relationships are exempted from paragraph (B) of Rule 3-120, there may be other California Rules of Professional Conduct that could apply to such conduct.
7. Rule 3-110, Failing to Act Competently, may be applied only to sexual relationships where the relationship began during the representation.
8. A lawyer who possesses the knowledge and skill level to handle a case will not ever be subject to Rule 3-110, even if he or she is sexually involved with a client.
9. Under ABA Rule 1.7, a lawyer shall not represent a client if the representation involves a concurrent conflict of interest, and one of the ways this can potentially exist is if there is a personal interest of the lawyer significantly affecting the representation.
10. The ABA Conflicts of Interest rules specifically address the situation of a sexual relationship between lawyer and client.
11. The ABA defines “sexual relations” the same way as the Rule in California.
12. The ABA Rules note that a lawyer-client sexual relationship may affect the scope of protection afforded client confidences.
13. The ABA Rule governing lawyer-client sexual relationships recognizes that beginning such a relationship during the course of the legal relationship may be permissible in some circumstances as long as the client gives informed consent.
14. Under ABA Rule 1.8 a lawyer cannot be disciplined for beginning a sexual relationship with his or her client unless it can be proven that the client was prejudiced by the relationship.
15. A sexual relationship between a client and lawyer could in some cases be considered misconduct under the ABA Rules.
16. The ABA recognizes that having a sexual relationship with a client may affect the ability of the lawyer to provide competent representation, but does not implicate the client’s capacity to make informed decisions in the case.
17. California has noted that a lawyer-client sexual relationship would not per se impair the lawyer’s ability to provide competent representation.
18. The Restatement of the Law views a lawyer-client sexual relationship as implicating the duty of loyalty.
19. Communications made between a lawyer and client who are romantically involved will always be protected even if they are made within the personal aspect of their relationship.
20. A client is someone who consults a lawyer for the purpose of retaining the lawyer in his or her professional capacity, not personal capacity.