Attorney-Client Intimacy: Too Hot to Handle?
LACBA Update, June/July 2007
By Evan A. Jenness, a member of the LACBA Professional Responsibility and Ethics Committee. Ms. Jenness is a criminal defense attorney whose offices are located in Santa Monica. The opinions expressed are her own.
If you are contemplating asking a client on a date or accepting a client’s invitation, think about more than where to dine—at least if you want to keep representing the client. Sexual relationships between lawyers and their clients may open a Pandora’s box of ethical and legal issues for the unsuspecting lawyer. If problems develop, you might wind up with a State Bar complaint or malpractice claim instead of a second date.
Ethics authorities considering this topic express concern that attorney-client intimacy may jeopardize a lawyer’s ability to competently represent the client, impair the lawyer’s exercise of independent professional judgment, violate the lawyer’s fiduciary duties, lead to conflicts of interest, undermine the duty of confidentiality by blurring the line between attorney-client and intimate communications, impair the attorney-client privilege, and create an appearance of impropriety. See, e.g., State Bar of Cal., Standing Comm. on Prof’l Responsibility & Conduct, Formal Op. No. 1987-92 (ethical considerations of lawyer’s sexual relationship with client).
These concerns prompted the American Bar Association to adopt a virtual ban on attorney-client sexual relations. See ABA Model Rules of Prof’l Conduct R. 1.8(j) (“lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced”). California, however, has a more limited rule “intended to prohibit sexual exploitation by a lawyer in the course of a professional representation.” See Cal. R. of Prof’l Conduct R. 3-120 (Sexual Relations with Client), Discussion. Rule 3-120(B) provides that a member of the bar 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.
The term “sexual relations” means “sexual intercourse or the touching of an intimate part of another person for the purpose of sexual arousal, gratification, or abuse.” Cal. R. of Prof’l Conduct R. 3-120(A); see also Bus. & Prof. Code §§ 6106.8, 6106.9 (type of conduct prohibited by Rule 3-120 constitutes grounds for discipline).
The rule does not apply to marriages or other intimate relationships that predate the attorney-client relationship or to lawyers in a firm where the client is having sex with an attorney who is not handling the matter. Cf. ABA Model Rule 1.7 (attorney to weigh client’s interests against personal interests in considering conflicts of interest stemming from pre-existing sexual relationships). With a corporate client, it applies only to the individual overseeing the representation. Cf. ABA Model Rule 1.8, Comment 19 (prohibition applies to attorney and a “constituent of the organization who supervises, directs or regularly consults with the attorney concerning the organization’s legal matters”).
Rule 3-120 adds disciplinary sanctions to the list of consequences for sexual involvement with a client when such involvement is coerced, demanded as the “price” for legal services, is the result of undue influence or exploitation of a client’s vulnerability, or adversely affects the attorney’s competency in handling the case. See Karpman & Margolis, California Lawyer’s Guide to Professional Responsibility 36 (Shepard’s 1996); see also Cornell Law School, Legal Information Institute, California Legal Ethics, §1.1:320 (Duty to Client), available at www.law.cornell.edu/ethics/ca/narr. Previously, the consequences for the attorney included only recusal or disqualification for a conflict of interest, a civil action for breach of fiduciary duty, legal malpractice, or other torts. Id.; see, e.g., Barbara A. v. John G. (1st Dist. 1983) 145 Cal. App. 3d 369 (reinstating battery and fraud claims where attorney duped client into believing the attorney was sterile, and client suffered sterility following complications from unexpected ectopic pregnancy); McDaniel v. Gile (2nd Dist. 1991) 230 Cal. App. 3d 363 (allegation that attorney abandoned client after she rebuffed sexual advances supports emotional distress and malpractice claims).
Relationships coming within Rule 3-120 or exempted from its application are not free and clear of disciplinary hurdles. Other California Rules of Professional Conduct that may give rise to disciplinary consequences are Rules 3-100 (Confidential Information of a Client); 3-110 (Failing to Act Competently); and 3-300 (Avoiding Interests Adverse to a Client). Moreover, compliance with Rule 3-120 will probably help little if a relationship ends on bad terms. It is easy to imagine a legitimate difference of opinion in hindsight about whether the sex was a quid pro quo or resulted from undue influence over a client who was mired in legal woes. Or whether an unfavorable legal outcome resulted from the rocky road of a romantic relationship.
Even some proponents of a middle course such as Rule 3-120 acknowledge that in some matters the risk of exploitation is particularly high: family law, probate, criminal, and pro bono matters. See Bower & Stern, Conflict of Interest?: The Absolute Ban on Lawyer-Client Sexual Relationships is Not Absolutely Necessary, 116 Geo. J. Legal Ethics 535 (2003). These commentators assert that where the client is especially vulnerable (because of family, money, or criminal problems) and is seeking legal advice because of these vulnerabilities, a sexual relationship is more likely to result from exploitation, coercion, or fraud. Id. Rule 3-120, however, does not distinguish between different types of representation, so California lawyers must evaluate these questions based on the facts at hand.
What about client consent? One commentator describes the parameters of client consent, counseling that consent must be informed, specific, not involve coercion, define the adverse risks such as conflicts of interest, and specifically define the scope of the lawyer-client relationship to avoid confusion. See Conflict of Interest, supra. However, it is hard to imagine circumstances under which such a contract might be used before the relationship takes off (“Er...umm...could I hold those flowers while you sign here?), and some authorities believe the issue is one to which a client cannot effectively consent. See, e.g., O’Connell, Keeping Sex Out of the Attorney-Client Relationship: A Proposed Rule, 92 Columbia Law Review 887 (May, 1992); cf. Cal. R. of Prof’l Conduct R. 3-400 (prohibiting contacts prospectively limiting attorney’s malpractice liability to client).
The facts of reported disciplinary cases provide support for the position that consent may be illusory in this context. Disciplinary Counsel v. Sturgeon, Ohio, No. 2006-1209 (Nov. 15, 2006) (permanent disbarment of lawyer for repeatedly pressuring financially vulnerable female clients to trade sexual favors for reduced legal fees, exposing himself, using crude language, and falsely denying fault); Iowa Supreme Court Attorney Disciplinary Bd. v. McGrath, Iowa, No. 113/05-0575 (April 21, 2006) (three-year suspension of lawyer who pressed three vulnerable female clients to have sex with him in lieu of paying his fees); In re Gamino, Wis., No. 2003AP2422-D (Dec. 20, 2005) (two-year suspension for sex with two vulnerable female clients and repeated misrepresentations about the relationships). However, all relationships may not fit the invidious stereotype of a boorish lawyer and needy client.
Throughout history, perilous territory hasn’t been much of a deterrent to intimate relationships whether consensual or procured through duress. But you may want to at least look before you leap into a client romance of any type. If you do not want to end the attorney-client relationship or postpone the intimate one, you could face a much harder landing than a bad date.