In 2002, the ABA adopted Model Rule 1.8(j), which bans “sexual relations” between attorneys and their clients unless the intimate relationship pre-dated the attorney-client relationship. This rule has been adopted in some form by many states, however, it is not without controversy. Many who oppose it argue that relationships between consenting adults fall outside of the bar’s regulatory purview. Nonetheless, at least 30 states have been persuaded to adopt some version of the rule, perhaps because the “unequal” relationship between attorney and client means that “a sexual relationship . . . can involve exploitation of the lawyer’s fiduciary role, in violation of the lawyer’s basic ethical obligation not to use the trust of the client to the client’s disadvantage.” Comment 20 to Rule 1.8.
The matter of In re Disciplinary Proceedings Against Atta makes a strong case in support of Rule 1.8(j) and that demonstrates just the kind of situation anticipated in Comment 20. Atta, the lawyer for the divorcing wife, allegedly became romantically involved with his client and then hijacked the representation to pressure her to continue the relationship; he was subsequently disciplined for it by the Wisconsin Supreme Court. Similar power dynamics emerged in a Pennsylvania disciplinary matter, Office of Disciplinary Counsel v. Toussant. In that case, Toussant was allegedly romantically involved with her client and then retaliated against the client when the client attempted to break off their involvement. The Pennsylvania Supreme Court suspended Toussant from the practice of law for one year and noted: “This case presents a textbook example of why the Pennsylvania Supreme Court adopted Rule 1.8(j). While Respondent may have intended no harm to her client at the inception of the relationship, the harm that occurred was and should have been foreseeable.”