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Prof Responsibility • Loyalty
PR#033
Legal Definition
A lawyer may not have a sexual relationship with a client unless the lawyer and client had a preexisting, consensual sexual relationship (i.e., prior to the lawyer-client relationship). According to Rule 1.8(j), further, even if there was a preexisting sexual relationship, the lawyer should ensure it will not affect their ability to represent the client. Similarly, a lawyer who represents an organization must not have a sexual relationship with a constituent of the organization who supervises the lawyer's work or consults the lawyer about the organization's legal matters.
Plain English Explanation
Though this may surprise some, history has proven pretty clearly that humans love sex. All sorts of sex. Including sex with clients. But the ABA isn't cool with this. When people seek legal help, they're often in vulnerable situations. A sexual relationship could complicate matters and potentially lead to the lawyer taking advantage of the client's vulnerability.
There's an exception for preexisting relationships. If the lawyer and client were already in a consensual sexual relationship before the professional relationship began, it's not automatically prohibited. However, even in these cases, the lawyer needs to carefully consider whether the personal relationship might affect their professional judgment or the quality of their legal work.
For lawyers representing organizations (like a company), the guideline extends to certain individuals within that organization. Specifically, it prohibits sexual relationships with anyone who supervises the lawyer's work or consults with the lawyer about legal matters. This helps prevent conflicts of interest and maintains the integrity of the legal representation.
It's worth noting that this guideline applies regardless of who initiates the relationship. Even if a client pursues a sexual relationship, the lawyer is still responsible for maintaining professional boundaries.
There's an exception for preexisting relationships. If the lawyer and client were already in a consensual sexual relationship before the professional relationship began, it's not automatically prohibited. However, even in these cases, the lawyer needs to carefully consider whether the personal relationship might affect their professional judgment or the quality of their legal work.
For lawyers representing organizations (like a company), the guideline extends to certain individuals within that organization. Specifically, it prohibits sexual relationships with anyone who supervises the lawyer's work or consults with the lawyer about legal matters. This helps prevent conflicts of interest and maintains the integrity of the legal representation.
It's worth noting that this guideline applies regardless of who initiates the relationship. Even if a client pursues a sexual relationship, the lawyer is still responsible for maintaining professional boundaries.
Hypothetical
Hypo 1: Bob, a divorce lawyer, meets Amy at a bar. They hit it off and start dating. A month later, Amy asks Bob to represent her in her upcoming divorce. Result: This situation is acceptable under the ethical guideline. Bob and Amy had a preexisting consensual sexual relationship before the lawyer-client relationship began. However, Bob should carefully consider whether their personal relationship might affect his ability to represent Amy effectively in her divorce case.
Hypo 2: Lawyer Amy has been representing Tim in a contract dispute for several months. They've been working closely together and have developed feelings for each other. Tim asks Amy out on a date. Result: Amy must decline Tim's invitation. Starting a sexual relationship with a current client is prohibited, regardless of who initiates it. Amy should explain to Tim that ethical guidelines prevent her from engaging in a personal relationship with clients.
Hypo 3: Bob is the in-house counsel for a large corporation. He begins a sexual relationship with the CEO, who often consults with him on legal matters. Result: This relationship violates the ethical guideline. Even though Bob represents the organization rather than the CEO personally, the CEO is someone who consults with Bob about the organization's legal matters. This relationship could create conflicts of interest and is not allowed.
Hypo 4: Bob and Amy have been married for years. Amy decides to go to law school and becomes a lawyer. Bob's business is sued, and he asks Amy to represent him. Result: This situation is acceptable under the guideline. Bob and Amy had a preexisting sexual relationship long before Amy became a lawyer. However, Amy should still carefully consider whether their personal relationship might affect her ability to represent Bob professionally.
Hypo 5: Mark is a criminal defense lawyer representing Client Carl. After successfully defending Carl, they remain friends. Five years later, long after the representation has ended, Carl and Mark begin a romantic relationship. Result: This situation does not violate the ethical guideline. The sexual relationship began long after the lawyer-client relationship had ended.
Hypo 2: Lawyer Amy has been representing Tim in a contract dispute for several months. They've been working closely together and have developed feelings for each other. Tim asks Amy out on a date. Result: Amy must decline Tim's invitation. Starting a sexual relationship with a current client is prohibited, regardless of who initiates it. Amy should explain to Tim that ethical guidelines prevent her from engaging in a personal relationship with clients.
Hypo 3: Bob is the in-house counsel for a large corporation. He begins a sexual relationship with the CEO, who often consults with him on legal matters. Result: This relationship violates the ethical guideline. Even though Bob represents the organization rather than the CEO personally, the CEO is someone who consults with Bob about the organization's legal matters. This relationship could create conflicts of interest and is not allowed.
Hypo 4: Bob and Amy have been married for years. Amy decides to go to law school and becomes a lawyer. Bob's business is sued, and he asks Amy to represent him. Result: This situation is acceptable under the guideline. Bob and Amy had a preexisting sexual relationship long before Amy became a lawyer. However, Amy should still carefully consider whether their personal relationship might affect her ability to represent Bob professionally.
Hypo 5: Mark is a criminal defense lawyer representing Client Carl. After successfully defending Carl, they remain friends. Five years later, long after the representation has ended, Carl and Mark begin a romantic relationship. Result: This situation does not violate the ethical guideline. The sexual relationship began long after the lawyer-client relationship had ended.
Visual Aids
Related Concepts
Can an attorney continue to represent a client if a conflict exists?
Does representing clients with inconsistent positions violate the lawyer's Duty of Loyalty?
How can a lawyer limit their malpractice liability with a client?
How can screening avoid imputed conflicts?
How do the California rules differ from the ABA when it comes to a lawyer accepting compensation from a party other than their client?
In assessing a conflict of interest, what is a concurrent conflict?
In assessing the Duty of Loyalty, what's the difference between an actual conflict and a potential conflict?
In California, are lawyer's allowed to have sex with their clients?
In California, how can a lawyer limit their malpractice liability with a client?
In California, how must a lawyer advise their client to seek independent counsel when dealing with potential financial conflicts?
In California, may a lawyer represent an insurance company and its policyholder as joint clients?
In California, what are the restrictions related to lawyers acquiring the media rights of their clients?
In California, what are the restrictions related to lawyers receiving gifts from their clients?
In California, when may a lawyer loan money to a client?
What are some common issues that occur when a lawyer represents multiple clients in the same matter?
What are the most common types of conflicts of interest that involve a lawyer's own interest?
What are the restrictions related to lawyers acquiring the media rights of their clients?
What are the restrictions related to lawyers receiving gifts from their clients?
What is an imputed conflict and how can it be resolved?
What is required in order for a lawyer to accept compensation from a party other than their client?
What is required in order for a lawyer to avoid a financial conflict with a client?
What is the Duty of Loyalty?
When does the general rule of imputed conflicts NOT apply?
When may a lawyer appear as a witness in a matter where they represent a party?
When may a lawyer loan money to a client?
When may there be a conflict of interest with a former client?
