Walls keep everybody out. Boundaries teach them where the door is. —Mark Groves
Creating and enforcing clear and appropriate boundaries with clients is a critical aspect of the attorney-client relationship. Effective boundaries can help an attorney build trust and respect, decrease stress, and improve the quality of representation. Setting and maintaining boundaries can be a challenge, however, especially because we undoubtedly work with clients who have various expectations, needs, or perspectives. In this article, we outline the signs of blurred boundaries, explore the importance of creating and enforcing clear boundaries, and conclude with suggestions on how to effectively establish and maintain them in practice.
Matthew’s Story
Although most of us entered the profession because we want to help people, it can be difficult to keep emotions in check. Indeed, some practitioners are at heightened risk of compassion fatigue and secondary trauma, including judges and attorneys in criminal and family court. One of our readers, Matthew—a matrimonial attorney with ten years in practice—shared the following experience. Perhaps some of you have experienced similar dilemmas.
Sally (not her real name) retained Matthew to represent her in a divorce from her abusive husband with whom she had two small children. Matthew felt sorry for her from the outset and was committed to obtaining a favorable result. During the representation, Matthew became deeply emotionally invested in the matter, and his actions contributed to “boundary creep.” For example, he frequently communicated with Sally after normal business hours when the conversation could have easily taken place between 9:00 a.m. and 5:00 p.m. These after-hours conversations, which often focused on Sally’s emotional struggles, frequently went unbilled because of the personal connection that had been established.
Ultimately, Matthew began opening up to his client about his own abusive childhood and shared extensive details about how it has affected him. After Sally’s estranged husband filed for bankruptcy, she begged Matthew to represent her interests in the proceedings. Matthew planned to do so even though he had no experience whatsoever in bankruptcy law.
Fortunately, Matthew’s law partner was made aware of the situation and gently pointed out that personal and professional boundaries were being crossed. His partner compassionately yet clearly explained why corrective action was necessary to ensure Matthew and his supervising attorney met their respective ethical obligations, safeguarded the integrity of the client’s matter, and properly supported Matthew’s overall health and well-being and that of his client.
If his partner hadn’t stepped in, Matthew could have found himself perpetuating an unhealthy and ethically compromising situation—one in which many lawyers find themselves stuck. Once he processed his partner’s perspective, Matthew had a difficult and straightforward conversation with Sally and was able to reestablish a purely professional relationship. The firm also referred Sally to trauma-informed counseling resources for herself and the children.
This experience also helped Matthew see he needed more support to address his own childhood trauma, and he ultimately entered professional therapy. Matthew shared that counseling has indelibly changed how he approaches the practice of law. He reports that therapy has helped him to process his adverse childhood experiences (ACEs), as well as empowered him with tools and skills to set appropriate boundaries with clients and others.
Indicators of Weak Attorney-Client Boundaries
In retrospect, Matthew realized that the signs of overstepped boundaries were apparent all along. After lengthy reflection and talking through the situation with his therapist, he realized he had been unaware of the “red flags” at the time and was likely in denial. The following are a few common signs that Matthew will watch out for in the future:
- Preoccupation with the client. Matthew is not the first lawyer to become overly invested in clients and their personal problems. After all, we are humans first, and it is natural to feel empathy and compassion. If you find yourself thinking about a client on a frequent basis, perhaps worrying about his or her well-being—or if the client’s experiences have brought back painful memories and feelings from your own history—it’s most likely time to take a step back and ensure that the relationship is on the proper course. Perhaps an open dialogue with a trusted colleague would be beneficial. Always keep in mind that an attorney who crosses the professional/personal line may have difficulty remaining objective, which could negatively impact the decision-making process and jeopardize the case.
- Self-disclosure. In certain circumstances, attorney self-disclosure of personal information may help strengthen the relationship. For example, one of Cindy’s areas of practice was special-needs planning. She often told the parents of children with special needs about her own “special sister” to convey to them that she identified with their situation and could offer unique insight. Oversharing personal information, however, can lead to an unhealthy attorney-client relationship. Matthew now understands that while a mention of his abusive childhood may have deepened his professional bond with Sally, he crossed the line when he began providing details and discussing the emotional impact of the abuse.
- Inability to say a final “no.” Although Matthew knew the dangers of treading outside his areas of expertise, he allowed Sally to persuade him to represent her interests in bankruptcy court. His lack of experience could have led to an adverse outcome that probably would have damaged his professional relationship with her. Besides, we can only imagine the stress that he would have endured during the representation. Some clients will even ask their lawyer to commit unethical behavior. During Cindy’s 30 years of practice, she was asked on more than one occasion to backdate documents. Naturally, she outright refused. Unfortunately, many lawyers succumb to client pressure and find themselves in an ethical bind.
- Special fiscal arrangements. Matthew did not routinely take calls after hours and certainly billed for every moment spent on the phone—except with Sally. By not writing down his time, Matthew was cutting her a break on the bill. This behavior on his part can lead to a slippery slope. If the situation had continued, perhaps he would have given her additional discounts on her fees or even allowed invoices to go unpaid.
- Unrestricted or excessive availability. By engaging in after-hours contact with Sally, Matthew was affording her special access that was not extended to others. Certainly, there are circumstances in which attorneys need to have client contact during the evening or weekend. However, client contact during a lawyer’s personal time should be limited to emergent or unusual situations.
- Fantasies about a romantic relationship. Fortunately, Matthew and Sally did not become romantically involved, although they could have easily headed in that direction. This is good news from an ethical perspective because the relationship could have been in violation of American Bar Association Model Rule of Professional Conduct 1.8(j). Under this rule, “A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.” While it seems pretty obvious that sexual relationships with clients are strictly off-limits, each year a number of ethics cases are reported in which an attorney forgot or disregarded this basic rule of thumb.
