Volume 3, Number 1 • November 2004

 Dear Mike

By Mike McBride

I have met the man of my dreams. He is warm, funny, and sensible. The problem is that I am handling his divorce. I know ethically I shouldn’t have done anything until the end of the case, but it’s too late for that now. I also spent the night with him last night. As an associate, how should I talk to the partners to get me out of my ethical conflict? I don’t want to be fired. I love the man, but I love the job, too. —Torn in Love

Dear “Torn in Love”:

As the pop singer Michael Bolton sang, “Love is a Wonderful Thing,” but you have a predicament. You are mired in a number of thorny ethical issues. Although no rule of the American Bar Association’s Model Rules of Professional Conduct explicitly prohibits intimate relationships with clients or requires withdrawal from representation, a number of Rules suggest that this is dangerous territory. Further, some states do have specific rules that outright prohibit lawyers from sleeping with their clients. For example, North Carolina and Iowa explicitly prohibit lawyer-client sex. In California, you have to apply a complex rule meant to prevent client “sexual exploitation.” First, you had better closely read your jurisdiction’s professional rules.

In my jurisdiction, the Oklahoma Bar Association’s Ethics Committee has opined that a lawyer and her client having sex could violate one or more professional rules—excepting a sexual relationship formed prior to a legal representation (e.g., marriage). See Oklahoma Ethics Opinion No. 311, www.okbar.org/ethics/311.htm. This Opinion relies primarily on Rule 1.8 of the Oklahoma Rules of Professional Conduct and the Comment. The ABA Model Rule is the same. The Comment provides “As a general principle, all transactions between client and lawyer should be fair and reasonable to the client.” Sleeping with your client jeopardizes professional objectivity, independent judgment, and can hurt the special fiduciary relationship lawyers and clients form.

You should consider the myriad ethical concerns. The Oklahoma Ethics Opinion warns that lawyer-client sex may

(i) jeopardize the lawyer’s ability to competently represent the client; (ii) involve unfair exploitation of the lawyer’s fiduciary relationship with the client; (iii) compromise the lawyer’s exercise of independent professional judgment in rendering of candid advice during the representation; (iv) create a conflict between the interests of the lawyer and the interests of the client; (v) jeopardize the lawyer-client privilege with respect to confidences imparted; and (vi) be prejudicial to the administration of justice.

Of particular concern is the vulnerability of a divorcing spouse (yes, men too!), although this concern has traditionally been more greatly ascribed to women, particularly homemakers. Also, should the opposing spouse find out about the lawyer-client sexual relationship negotiations or decisions affecting custody, visitation or property division could be compromised to your client’s detriment.

As reflected by the lack of a clear rule prohibiting lawyer-client sex, the issue has been hotly debated in academia and in various jurisdictions. Some argue that lawyer-client sex implicates deeply held, constitutionally protected interests of “freedom of association” and “freedom of expression.” It is also arguable under Rule 1.7 (b)(1) that representation could proceed if the lawyer reasonably believes that representation will not adversely be affected. However, questions remain whether the divorcing spouse can knowingly consent to representation with full objectivity in this situation. Currently, the prevailing position of courts and bar associations that have gone as far is that absolutely banning lawyers from sleeping with their clients passes constitutional muster.

I would recommend a conservative course. You should not represent your client and be his lover. I recommend you take steps to remedy your professional relationship and prevent violation of Rules of Professional Conduct. First, talk to your managing partner about the situation and speak with your client. You may need to cease the client sexual relationship. It may be necessary for you to withdraw from representing your client. The disclosure and subsequent steps will be difficult, and perhaps painful, but are necessary to protect your client’s interests—the foremost concern.

Love is often unexpected. It is a normal part of life and is understandable. Perhaps another member of the firm could step in to represent him. Be very careful, though. We should abide by the professional limitations. Discussing and working through the issues with your managing partner can help preserve your job. Do not delay the discussions.

Legal scholars find this topic of intimate client relationships sexy as well. Two leading articles are Abed Awad, Attorney-Client Sexual Relations, 22 J. Legal Prof. 131 (1998) and Linda Fitts Mischler, Reconciling Rapture, Representation, and Responsibility: An Argument Against Per Se Bans on Attorney Client Sex, 10 Geo. J. Leg. Ethics 209 (1997). To sort out the gray area issues you presented, my firm partner, Professor Steven K. Balman of the University of Tulsa helped provide guidance. Thank you, Steve!

D. Michael McBride III is a Council member of the ABA General Practice, Solo and Small Firm Division. He also serves on the ABA Standing Committee for Judicial Independence.   McBride practices federal Indian law and litigation in Tulsa, Oklahoma, where he is a Director and Shareholder of Sneed Lang, P.C.  He also serves the Kaw and the Pawnee Nations as an associate justice of their respective Supreme Courts.

Got a question for Mike?
Email D. Michael McBride III at D.Michael.McBride.III@abanet.org

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