Volume 19, Number 7
SEX WITH A CLIENT: ALWAYS A VIOLATION?
Adopt the ABA's Specific Prohibition
Nancy J. Moore
In August 2001, the American Bar Association's Ethics 2000 Commission recommended extensive changes to the Model Rules of Professional Conduct; in February of this year, the vast majority of these recommendations were adopted. Among them is an entirely new Rule 1.8(j), which states, "A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced."1 A Comment clarifies that when the client is an organization, the prohibition applies only to sexual relations with a constituent who supervises, directs, or regularly consults with the lawyer concerning the organization's legal matters.2
Many states already have adopted rules explicitly regulating client-lawyer sexual relationships. The rest of the states are now faced with the decision whether to join the ABA in adopting a rule that prohibits most such relationships or to continue dealing with the problem on a case-by-case basis under existing rules.
There can be no dispute that sex with clients is a serious problem for the legal profession. Detailed statistics currently are not available, but the number of complaints filed by clients against their lawyers for ethical violations arising out of sexual relationships is growing.3 Nonconsensual sexual relationships are clearly both criminal and unethical. However, even consensual relationships between clients and lawyers are problematic.
According to a recent opinion of the ABA Standing Committee on Ethics and Professional Responsibility, such a relationship may involve exploitation of a lawyer's fiduciary position and presents a significant risk that the lawyer's ability to represent the client may be impaired.4 The committee notes that the same principle of fiduciary obligation that underlies the ethical rules governing client-lawyer financial dealings implies that a lawyer similarly should not abuse the client's trust by taking sexual or emotional advantage of the client. Additional risks to the client-lawyer relationship include creating a conflict of interest that deprives the client of the lawyer's independent judgment, endangering the principle of confidentiality, and harming the client's ability to achieve the goals of the representation.
Critics of a rule prohibiting sex with clients argue that any and all of these dangers can be addressed through existing rules, such as those governing conflicts of interest and confidentiality.5 But these rules may not be sufficient. For example, a client usually forms an emotional attachment to the lawyer before entering into a sexual relationship.6 Can this client properly consider and consent to the significant risk that the representation will be compromised as a result of the sexual relationship? Will the client dispassionately consider that the relationship may end, leaving the client uncomfortable with the lawyer but materially disadvantaged by having to find a new lawyer in the middle of the representation?
Critics also argue that banning client-lawyer sexual relationships violates the right of privacy of both clients and attorneys.7 However, even under a per se ban, the lawyer merely is prevented from continuing to represent such a client, not precluded from engaging in sex with the client.
Finally, critics believe that even though sex with clients violates the Rules more often than not, it may be perfectly okay in some situations. They cite as an example a huge corporate client whose general counsel makes ten times what the lawyer earns.8 Admittedly, the power imbalance there is not the same as that of a lawyer and a divorce client. But keep in mind that the client is the corporation, not the general counsel-is it likely that the lawyer or the general counsel will go to the CEO or board to get consent to a sexual relationship that admittedly poses risks to the client of both conflicts and confidentiality?
I agree with the critics that there are situations in which a sexual relationship with a client is not coercive and the client is perfectly capable of giving informed consent to the risks the relationship might pose to the representation. And it is also true that you simply cannot write a rule that covers all the bad situations and exempts those that are good.9 But we use bright-line, black-letter rules in other situations in which some clients and lawyers are prohibited from engaging in conduct that is arguably "good"-for example, the flat prohibition on lawyers negotiating for media rights with a client during the representation.10
There are important advantages to a bright-line, black-letter rule in this situation. First and foremost, it provides necessary protection for the majority of clients who are significantly at risk and whose lawyers are likely to mistakenly conclude that their particular relationship is one of the admittedly rare "good" ones. Second, it protects well-intentioned lawyers by clearly alerting them to the dangers of sexual relationships with clients and the serious possibility of discipline if the relationship goes sour and the client complains. Finally, it puts clients on notice that such conduct by their lawyer is unethical and that, if they file a grievance, they will not be forced to shoulder the very difficult burden of proving that the relationship was coercive or that their consent was not fully informed.
A bright-line, black-letter rule is precisely what has been adopted in most other professional associations' codes of ethics, including those of the American Medical Association, the American Psychiatric Association, the American Psychological Association, the American Chiropractic Association, and the Clinical Social Work Federation.11 I am proud that the ABA has decided to join with these organizations in subordinating the self-interest of professionals to the well-being of their clients. And I hope that states and organizations that have not done so already soon will follow the ABA's lead.
1. ABA MODEL RULES OF PROF'L CONDUCT, Rule 1.8(j) (2002).
2. Id., Comment 19.
3. See Molly A. McQueen, Regulating Attorney-Client Sex: The Need for an Express Rule, 29 GONZ. L. REV., Comment, 405 (1993-94).
4. ABA Standing Committee on Ethics and Prof'l Responsibility, Formal Op. 92-364.
5. See, e.g., Linda Fitts Mischler, Reconciling Rapture, Representation, and Responsibility: An Argument Against Per Se Bans on Attorney-Client Sex, 10 GEO. J. LEGAL ETHICS 209 (1997).
6. See Geoffrey C. Hazard, Jr., Lawyer-Client Sex Relations Are Taboo, NAT'L L.J., Apr. 15, 1991, at 13.
7. See, e.g., Mischler, supra note 5.
8. Larry Fox presented this example in the debate on Rule 1.8(j) before the House of Delegates.
9. Larry Fox also made this argument in the House debate.
10. ABA MODEL RULES OF PROF'L CONDUCT R. 1.8(d) (2002). California permits lawyers and clients to enter into such agreements, on the ground that some clients need to do so in order to retain counsel of choice. Maxwell v. Superior Court, 639 P.2d 248 (Cal. 1982).
11. See Rena A. Gorlin, ed., CODES OF PROFESSIONAL RESPONSIBILITY (1999). I researched this issue at the request of Martha Barnett, then president of the ABA, who wanted to know what other professions had done.
Nancy J. Moore is a professor of law at Boston University School of Law in Boston, Massachusetts